Original Jurisdiction Per Curiam

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STATE OF MINNESOTA

IN SUPREME COURT

A19-0917

Original Jurisdiction Per Curiam

In re Petition for Disciplinary Action against
Kent Frederick Strunk, a Minnesota Attorney, Filed: July 1, 2020
Registration No. 0288391. Office of Appellate Courts
________________________

Susan M. Humiston, Director, Keshini M. Ratnayake, Senior Assistant Director, Office of
Lawyers Professional Responsibility, Saint Paul, Minnesota, for petitioner.

James M. Ventura, Wayzata, Minnesota, for respondent.
________________________
S Y L L A B U S
1. In a case concerning intentional misconduct, the referee clearly erred by
failing to make a finding regarding the severity of the psychological disorder alleged to be
a mitigating factor.
2. An indefinite suspen sion with no right to pe tition for reinstatement for
5 years is the appropriate discipline, in this instance, for an attorney who pleaded guilty to
felony possession of child pornography.
3. Although an attorn ey’s proactive efforts to mitigate harm to clients from the
attorney’s misconduct may be considered when determining the appropriate discipline to
impose, no credit will be applied for an attorney’s own decision to suspend the attorney’s
practice.
Suspended.

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O P I N I O N
PER CURIAM.
The Director of the Office of Lawyers Responsibility filed a petition for disciplinary
action against respondent Kent Frederick Strunk, alleging that Strunk violated Rule 8.4(b)
of the Minnesota Rules of Professional Conduct by committing a criminal act that reflects
adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects.
Based on the referee’s findings and our own review of the record, we conclude that Strunk’s
misconduct warrants an indefinite suspension with no right to petition for reinstatement for
5 years.
FACTS
In October 2017, the National Center for Missing and Exploited Children provided
a tip to the Bureau of Criminal Apprehension (BCA) that suspected child pornography had
been uploaded to an online chatroom. Th e BCA traced the IP addr ess used to upload the
image to Strunk. On May 2, 2018, the BCA executed a search warrant at Strunk’s residence
and recovered Strunk’s computer, which contained numerous images of child pornography,
including images of infants. Strunk was a rrested and subsequently charged with five
counts of felony possession of child pornog raphy in violation of Minn. Stat. § 617.247,
subd. 4(a) (2018). Strunk pleaded guilty to all five counts in October 2018. In April 2019,
Strunk was sentenced to a stay of imposition on each count, with a 5-year supervised
probationary period.
Shortly after Strunk’s arrest, the Director of the Office of Lawyers Professional
Responsibility began investigating possibl e misconduct by Strunk. Strunk’s attorney

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requested a delay in responding to the in vestigation until the co rresponding criminal
proceeding was resolved. The referee found that this request, sent via letter by counsel for
Strunk, was also meant to assure the Director that Strunk had been “placed on leave by the
Seventh District Public Defender, and had either resolved or [withdrawn] from his private
practice cases.”1
After the criminal proceedings were reso lved, the Director filed the petition for
disciplinary action with our court. Strunk filed an answer, admi tting to his criminal
conduct and requesting a hearing to establis h mitigating circumstances for disciplinary
purposes.
Strunk testified at the disciplinary hearing that he voluntarily suspended his practice,
completed a psychosexual evaluation, and enro lled in out-patient therapy. A clinical
psychologist testified to Strunk’s participa tion and progress in out- patient treatment at
Alpha Human Services. Although she testifie d that Strunk’s “official diagnosis” was
“Unspecified Paraphilic Disorder,” she of fered no testimony describing its diagnostic
criteria or qualifying Strunk’s unspecified paraphilia.
Strunk also introduced four exhibits, whic h included a copy of his psychosexual
examination, intake documents and progre ss notes completed by Al pha Human Services,
and an expert evaluation of St runk’s medical records that wa s prepared for sentencing in
Strunk’s criminal matter. References to St runk’s diagnosis of “Unspecified Paraphilic

1 Strunk was a part-time contract public de fender in the Seventh District, in addition
to maintaining a solo law practice. Strunk re lies on the letter that his lawyer sent to the
Director as proof that he voluntarily suspended his practice of law. The June letter is not
included in the record for our review.

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Disorder” did not discuss the severity of Strunk’s condition. The Director introduced eight
exhibits: the complaint, plea, and warrant of commitment in Strunk’s criminal matter, and
the final rulings in Strunk’s five prior disciplinary actions.
The referee found that Stunk “candidly admitted his criminal behavior and
subsequent convictions.” The referee found that Strunk’s testimony and evidence of his
past behavior demonstrated remorse for his misconduct and a commitment to recovery
from his addiction.
The referee found that Strunk’s diagno sis “was and is Unspecified Paraphilic
Disorder.” He then evaluated whether St runk’s condition was a mitigating factor, using
the five-factor test we adopted in In re Weyhrich , 339 N.W.2d 274, 279 (Minn. 1983):
(1) the existence of a severe psychological disorder; (2) the psychological disorder directly
caused the misconduct; (3) the attorney is undergoing treatment and is making progress to
recover from the psychological disorder that caused the misconduct; (4) recovery has
arrested the misconduct; and (5) the misconduc t is not apt to recur. The referee found
“[b]eyond a doubt, factors 3, 4 and 5 have been clearly proven,” but made no specific
findings regarding factors 1 or 2. Instead, th e referee found that the experts’ reports “all
demonstrate that [Strunk’s] diagnosed paraphilia was at the heart of his criminal behavior
that is the basis of his misconduct,” and adopted the finding in the psychosexual
examination report that Strunk’s criminal ac tions were “due to a complicated set of

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interconnected issues of impulsivity, narcissi sm, and distorted thinki ng for which he is
receiving treatment.” Concerning the severity of Strunk’s condition, the referee wrote:
A careful and repeated reading of al l of [Strunk’s] exhibits provides a
complex and nuanced view of the res pondent, his psychological issues and
the treatment necessary to address them. How great is the leap between “a
severe psychological problem” and an Unspecified Paraphilic Disorder? The
record and the testimony does not directly address that.

Nonetheless, the referee concluded that Strunk had satisfied the Weyhrich test and treated
Strunk’s psychological condition as a mitigating factor.
Ultimately, the referee recommended that Strunk be suspended from the practice of
law for a period of 3 years, and that he “be given credit for one year for his self-imposed
suspension.” The referee recommended that Strunk’s suspension continue until the
successful completion of his treatment program or his dismissal from probation in the
corresponding criminal case, whichever occurs sooner.
The Director ordered a transcript, challe nging the referee’s findings of fact and
conclusions regarding Strunk’s psychological condition and “s elf-imposed suspension.”
The Director asks us to impose an indefin ite suspension with no right to petition for
reinstatement for a period of 5 years. Strunk, in turn, asks us to affirm the referee’s findings
and impose the referee’s recommended discipline.
ANALYSIS
I.
The Director challenges the referee’s treatment of Strunk’s psychological condition
as a mitigating factor. Because the Director ordered a transcript of the disciplinary hearing,
the referee’s findings of fact and conclusions are not conclusive, see Rule 14(e), Rules on

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Lawyers Professional Responsibility (RLPR). We review the referee’s findings—and the
lack of particular findings—for clear error. In re Farley, 771 N.W.2d 857, 861
(Minn. 2009). A referee’s findings are clearly erroneous when they leave us with the
definite and firm conviction that a mistake has been made. In re Lieber, 939 N.W.2d 284,
291 (Minn. 2020).
After the Director has proven misconduct, the burden shifts to the attorney to prove
a mitigating psychological disorder. Farley, 771 N.W.2d at 861. The attorney must prove,
by clear and convincing evidence, that: (1 ) the attorney has a severe psychological
disorder; (2) the psychological disorder directly caused the misconduct; (3) the attorney is
undergoing treatment and is making progress to recover from the psychological disorder
that caused the misconduct; (4) recovery has arrested the misconduct; and (5) the
misconduct is not apt to recur. Weyhrich, 339 N.W.2d at 279; see Farley, 771 N.W.2d
at 862 (discussing severity and direct caus ation). We only c onsider psychological
disorders as mitigating factors for intentiona l misconduct if the lawyer has proven all of
the Weyhrich factors. In re Mayne , 783 N.W.2d 153, 161 (Minn. 2010). Here, the first
two Weyhrich elements are in dispute.
Our precedent requires attorneys to show, by clear and convincing evidence, that a
psychological disorder is “severe” before the diso rder is a mitigating factor. Weyhrich,
339 N.W.2d at 279 . The clear-and-convincing evidentiary standard is demanding,
requiring “a high probability that the facts are true.” See In re Houge , 764 N.W.2d 328,
334 (Minn. 2009); see also In re Stoneburner , 882 N.W.2d 200, 203 (Minn. 2016)
(“[C]lear and convincing evidence requires more than a preponderance of the evidence, but

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less than proof beyond a reas onable doubt.”). Our cases have limited the use of
psychological disorders as a m itigating factor, distinguishing between serious conditions
and conditions that are sufficiently “severe” to support mitigation. See In re Albrecht ,
779 N.W.2d 530, 536 (Minn. 2010) (noting that a serious conditi on did not qualify as a
severe disorder, so was not a mitigating factor).
In evaluating whether a condition is “severe,” we consider all of the evidence, such
as evidence that the condition qualified as a severe problem on a recognized psychological
diagnostic scale, or evidence of drastic, self-destructive behavior. See In re Jones ,
834 N.W.2d 671, 678 (Minn. 2013); In re Munns , 427 N.W.2d 670, 672 (Minn. 1988).
Because of the significance of the severity of a condition to the Weyhrich analysis, the
referee erred by not making a specific findi ng regarding the severity of Strunk’s
unspecified paraphilic disorder.
Strunk asserts that his medical records an d his diagnosis speak for themselves.
He argues, “[i]t is abundantly clear that addiction to vi ewing child pornography is a
‘severe’ psychological problem. Possessing child pornography is a serious, harmful,
felony level offense.” He urges this court to consider that the referee found the testimony
of Strunk’s clinical psychologist credible when she testified that his addiction “grew over
time.” Strunk also points to the presence of a diagnosis recognized by the American
Psychiatric Association and to the general c onsensus in the proffered exhibits that he
requires sexual offender treatment as evidence that his condition is se vere. He suggests
that the length of his required treatment, pa rticularly when compar ed to the length of
treatment for alcohol and chemical dependency, also supports a finding of severity.

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We disagree. None of the evidence presented meets the severity test. As the referee
acknowledged, “[t]he record and the test imony does not directly address” whether
“Unspecified Paraphilic Disorder” is a se vere psychological disorder. Although the
evidence necessary to es tablish the severity of a diagnosis may differ in each case, we
conclude that a reference to a diagnosis of “Unspecified Paraphilic Disorder” is not enough,
by itself, to meet the exacting Weyhrich standard.
II.
The next issue before us is the appr opriate discipline to impose for Strunk’s
misconduct. In deciding what discipline is a ppropriate, we afford great weight to the
referee’s recommendation, but we alone make the final determination. In re Hansmeier,
942 N.W.2d 167, 172 (Minn. 2020). The purpos es of attorney disc ipline “are to protect
the public, to protect the judicial system, and to deter future misconduct by the disciplined
attorney as well as by other attorneys.” In re Oberhauser, 679 N.W.2d 153, 159
(Minn. 2004). In determining an appropriate disciplinary sanction, we consider the nature
of the misconduct, the cumulative weight of the disciplin ary violations, the harm to the
public, and the harm to the legal profession. Id. We impose sanctions “on a case-by-case
basis after considering both aggravating and m itigating circumstances, as well as looking
to similar cases for guidance.” Id.
A.
We begin with the nature of Strunk’s misconduct. “[W]e have repeatedly stated that
an attorney may be disciplined for acts which are criminal but do not result in a criminal
conviction.” In re Gurstel, 540 N.W.2d 838, 841 (Minn. 1995) (citation omitted) (internal

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quotation marks omitted); see also In re Samborski , 644 N.W.2d 402, 407 (Minn. 2002)
(“We need not await a conviction to disc ipline an attorney fo r criminal acts.”);
In re Reutter, 474 N.W.2d 343, 345–46 (Minn. 1991) (discussing the relationship between
criminal and professional sanctions); In re Hanratty, 277 N.W.2d 373, 375–76
(Minn. 1979) (collecting cases). Here, the evidence presented at the disciplinary hearing
establishes that, in addition to possessing child pornography, Strunk intentionally
distributed pornographic images to others by uploading files to an online chatroom.
To evaluate the severity of a felony offe nse, we may consider the severity ranking
assigned under the Minnesota Sentencing Guidelines. See Farley , 771 N.W.2d at 865.
First-time possession of child pornography with victims over 13 is rated a G-level offense,
akin to soliciting a child fo r sexual conduct. Minn. Sent. Guidelines 4.B (2019) (Sex
Offenders Grid). Subsequent possession of child pornography, and possession of
pornography of children under 13, is an F-le vel offense, akin to certain fourth-degree
criminal sexual conduct (sexual contact with a child victim) and fi fth-degree criminal
sexual conduct. Id. Dissemination of child pornography is an E-level offense, akin to all
other fourth-degree criminal sexual conduct. Id. Here, the evidence in the record reflects
that Strunk’s conduct rises to the severity of an E-level offense.
Strunk asks us to discipline possession of child pornography less severely than
solicitation of a minor. Strunk notes that he did not attempt to physically harm a child, and
he did not create any of the images. Because the sentencing guidelines rank possession of
child pornography and solicitation of a minor similarly, Strunk’s argument is unpersuasive.
Moreover, possession of child pornography is not a victimless crime. Unlike misconduct

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discovered through sting operations, th e photographs that Strunk possessed—and
distributed—were of actual child victims. The market for child pornography, of which
Strunk was a part, fuels the sexual assault of child victims. The nature of Strunk’s
misconduct is undoubtedly very serious.
B.
We next consider the cumulative weight of the misconduct in this case. We will
distinguish a brief lapse in judgment or a single, isolated incident from multiple instances
of misconduct occurring over a substantial amount of time. Lieber, 939 N.W.2d at 292.
The record reflects that Strunk view ed, possessed, and distributed child
pornography over the course of 1 year. During his psychosexual evaluation, Strunk
admitted that he knew his behavior was illega l and chose to continue saving images
“because he found them unique, he figured he would not get caught, and he believed that
because the images had likely been seen by thousands of ot her people it did not matter if
he also saw them.”
Strunk’s five felony convictions for po ssession of child pornography, combined
with the volume of images Strunk possessed over a protracted period of time, his admission
of distribution, his willful illegal behavior, and his deliberate efforts to avoid detection add
cumulative weight to Strunk’s violations.
C.
Our next task is to consider the harm to the public a nd the legal profession. Our
inquiry includes consideration of the number of victims harmed and the extent of the
victims’ injuries. See In re Harrigan, 841 N.W.2d 624, 630 (Minn. 2014).

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A conviction for a felony-level offense harms the legal profession by undermining
the public’s confidence in the ability of a ttorneys to abide by th e rule of law.
See In re Riehm, 883 N.W.2d 223, 234 (Minn. 2016). As a self-regulated profession, the
criteria we consider for admission to the Minn esota bar include an i ndividual’s ability to
be honest and candid, use good judgment, conduct oneself with respect for and in
accordance with the law, and av oid acts that exhibit disregard for the rights or welfare of
others. “A lawyer, as a member of the legal profession, is a representative of clients, an
officer of the legal system and a public citizen having special responsibility for the quality
of justice.” Minn. R. Prof. Conduct Preambl e para. 1. “[A] lawyer should further the
public’s understanding of and confidence in the rule of law and the justice system because
legal institutions in a constitutional democracy depend on popular participation and support
to maintain their authority.” Id., para. 6
The damage to the legal profession incurred when its members commit serious
crimes cannot be easily undone. Here, the harm that Strunk caused to the public and the
legal profession is significant. Strunk possessed nearly 100 pornographic images of child
victims of abuse and sexual exploitation, including infants. The possession and distribution
of pornography harms the victims long after the original photograph was taken. By
distributing pornographic images to others, Strunk perpetuated the harm caused to his
absolutely vulnerable child vi ctims through republication, and facilitated the criminal
desires of others. Moreove r, Strunk knew that his conduct was wrong, and he took
affirmative steps to evade detection. Strunk’s criminal conduct was intentional, ongoing,

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and done with the express belief that he would not be caught. The harm that Strunk caused
to the public and the profession was very serious.
D.
We also consider the presence of aggrava ting and mitigating factors. Strunk has a
history of five prior disciplinary actions, resulting in a 90-day suspension, two 2-year
periods of private probation, and two admo nitions. Strunk’s prior misconduct occurred
more than 10 years ago and is unrelated in nature to the present matter. Although
concerning, we do not consider Strunk’s disciplinary history to be a particularly strong
aggravating factor in this case.
The Director does not dispute the referee’ s finding that Strunk has demonstrated
remorse, or that Strunk proa ctively sought out, and continues to attend, treatment.
Although we do not view Strunk’s psychological condition itself to be a mitigating factor,
we recognize Strunk’s efforts to mitigate the consequences of his condition.
E.
Finally, we consider the appropriate disc ipline for this matte r according to the
totality of the circumstances, mindful of the discipline we have pr eviously imposed in
similar cases.
The presumptive sanction for a lawyer convicted of a felony is disbarment. In re
Morris, 827 N.W.2d 427, 429 (Minn. 2013). We will not auto matically disbar attorneys
convicted of felonies, howe ver, and will consider the circumstances surrounding the
criminal act to determine if any discipline short of disbarment is appropriate. In re Bonner,
896 N.W.2d 98, 114 (Minn. 2017). Our inquiry is fact intensive, and considers numerous

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factors, including the nature of the criminal conduct, whether the felony was directly
related to the practice of law, and whether the crime would seriously diminish public
confidence in the profession.
The possession and distribution of child pornography is no exception. In re Laurie,
917 N.W.2d 772 (Minn. 2018) (order) (disbarring an attorney convicted of five counts of
felony distribution of child pornography); In re McCarthy, 528 N.W.2d 229 (Minn. 1995)
(order) (disbarring an attorney convicted of one count of felony possession of child
pornography). We find that the presumptive sanction for felony misconduct is particularly
appropriate in cases concerning sexual crimes against children because of the degree of
harm such crimes cause to the public and the profession. A growing number of
jurisdictions agree. See American Bar Association, Annotated Standard s for Imposing
Lawyer Sanctions 268–71 (2d ed. 2019) (collecting cases of attorney misconduct involving
sex crimes against children).
Strunk asks us to accept the referee’s recommended discipline, and turns to the
discipline imposed in Lorentzen, Lichtenwalter, Siders, Scannell, Blashack, and Farley for
support. See In re Lorentzen , 935 N.W.2d 435 (Minn. 2019) (order) (imposing an
indefinite suspension with no right to petition for reinstatement for 3 years for soliciting a
minor to engage in prostitution); In re Lichtenwalter, 929 N.W.2d 431 (Minn. 2019)
(order) (imposing an i ndefinite suspension with no right to petition for reinstatement for
3 years for engaging in a pattern of sexual offenses, including felony-level solicitation of a
child and a misdemeanor invo lving indecent exposure); In re Siders, 903 N.W.2d 218
(Minn. 2017) (order) (imposing an indefini te suspension with no right to petition for

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reinstatement for 2 years for soliciting a minor to engage in prostitution); In re Scannell,
861 N.W.2d 678 (Minn. 2015) (order) (imposing an indefinite suspension with no right to
petition for reinstatement for 3 years for committing two counts of fourth-degree criminal
sexual conduct); In re Blashack, 793 N.W.2d 437 (Minn. 20 11) (order) (imposing an
indefinite suspension with no right to petition for reinstatement for 3 years for committing
fourth-degree criminal sexual conduct); Farley, 771 N.W.2d 857 (imposing an indefinite
suspension with no right to petition for reinstatement for 1 year for soliciting a minor over
the internet). With the exception of Farley, however, we chose to adopt a joint
recommendation by the parties in each of the aforementioned cases. 2 N o s u c h
recommendation is present here.
Notably, the Director does not request disb arment in this case , instead suggesting
that In re Flynn, 679 N.W.2d 330 (Minn. 2004) (order) is an appropriate case for
comparison. Flynn was convicted on a singl e count of felony possession of child
pornography. We accepted the joint recommendation of the parties and imposed a 5-year
suspension from the practice of law, with re instatement contingent on the successful
completion of criminal probation.
Strunk’s misconduct is very serious and arguably warrants disbarment. But we give
some deference to the Director’s recommendation of a 5-year suspension, and we also give

2 Although we bear final responsibility for an d are the sole arbiter of the discipline to
be imposed, we will give some deference to the Director’s decision to enter into a
stipulation for discipline because “the Director is in the best position to weigh the cost and
risk of litigation and to determine when a stipulated discipline will best serve the interests
of the Lawyers Professional Responsibility Board.” Riehm, 883 N.W.2d at 233 (citation
omitted) (internal quotation marks omitted).

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some weight to the referee’s recommendation of a lesser amount. As we have previously
noted, “a minimum 5-year suspension is lengthy and subject to reinstatement procedures.”
Riehm, 883 N.W.2d at 235 (citing Rule 18, RLPR).
Accordingly, we impose an indefinite suspension from the practice of law, effective
as of the date of this opinion, with no right to petition for reinstatement for 5 years.
III.
Our last task is to address the refe ree’s recommendation—and Strunk’s renewed
request—for “credit” for his voluntary “self-suspension” of his practice of law.
Suspensions are effective mechanisms for protecting the public because of the
oversight, transparency, and acc ountability requirements that accompany the discipline.
For example, unless ordered otherwise, a lawyer who has been suspended must notify each
client, opposing counsel, and tribunal in volved in pending litiga tion or administrative
proceedings of the lawyer’s suspension. Rule 26(a)–(b), RLPR. Th e notice must urge
clients to seek legal advice of the client’s own choice elsewhere and urge the prompt
substitution of counsel. See id. Each notice must include a copy of this court’s disciplinary
order. Rule 26(e), RLPR. All notices must be sent by certified mail, return receipt
requested, within 10 days of this court’s disciplinary order. Rule 26(c), RLPR. Proof of
compliance, including copies of all notices sent by the suspended lawyer, must be provided
to the Director within 15 days of the effective date of th is court’s order, and the returned
receipts from the certified mailing must be provided to the Director within 2 months of the
mailing. Rule 26(e), RLPR. Proof of compliance with th ese notice requirements is a
condition for reinstatement. Rule 26(g), RLPR.

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A “self-suspension” carries no similar assurances of transparency or accountability.
Because the “primary purpose of disciplinar y action is ‘to guard the administration of
justice and to protect the courts, the legal profession, and the public,’ ” we reject Strunk’s
request that we relax our standards fo r suspension to give him credit. See In re Andrade,
736 N.W.2d 603, 606 (Minn. 2007) (quoting In re Hanson , 103 N.W.2d 863, 864
(Minn. 1960); In re Crissey, 645 N.W.2d 141, 143 (Minn. 2002) (“[W]e must regulate the
legal profession in view of the public . . . .”).
Accordingly, we order that:
1. Respondent Kent Frederick Strunk is indefinitely suspended from the
practice of law, effective as of the date of this opinion, with no right to petition for
reinstatement for a minimum of 5 years.
2. Respondent shall pay $ 900 in costs, pursuant to Rule 24(a), RLPR, and
comply with the requirements of Rule 26, RLPR (requiring notice of suspension to clients,
opposing counsel, and tribunals).
3. If respondent seeks reinstatement, he must comply with the requirements of
Rule 18(a)–(d), RLPR. Reinstatement is also conditioned on successful completion of the
written examination required for admission to the practice of law by the State Board of
Law Examiners on the subject of professi onal responsibility and the satisfaction of
continuing legal education requirements. Ru le 18(e), RLPR. Fina lly, respondent must
comply with the terms of his criminal probation, as se t forth in the district court’s
April 2, 2019 sentencing order, and successfully complete sex offender treatment.
Suspended
.