In re Petition for Disciplinary Action against Michelle Lowney MacDonald, a Minnesota Attorney, Registration

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STATE OF MINNESOTA

IN SUPREME COURT

A20-0473

Original Jurisdiction Per Curiam
Took no part, Chutich, Thissen, JJ.

In re Petition for Disciplinary Action
against Michelle Lowney MacDonald,
a Minnesota Attorney, Registration Filed: June 30, 2021
No. 0182370 Office of Appellate Courts
________________________

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

Bobby Joe Champion, Minneapolis, Minnesota, for respondent.

________________________

S Y L L A B U S
1. The referee’s findings that respondent violated the rules of professional
conduct are not clearly erroneous.
2. The referee did not clearly err by rejecting respondent’s laches defense
because she failed to show prejudice , and r espondent’s false statements impugning the
integrity of a judge with knowing or reckless disregard for the truth are not protected by
the First Amendment.
3. An indefinite suspension , with no right to petition for reinstatement for
4 months, is the appro priate discipline for an attorney who, after suspension for 60 days
followed by 2 years of probation for misconduct that included recklessly making false

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statements about the integrity of a judge, repeated her misconduct by knowingly making
false statements about the integrity of the same judge while still on probation.
Suspended.
O P I N I O N
PER CURIAM.
The Director of the Offic e of Lawyers Professional Responsibility filed a petition
for disciplinary action against respondent Michelle Lowney MacDonald, alleging various
acts of professional misconduct. We appointed a referee . A fter holding an evidentiary
hearing, the referee determined that MacDonald’s conduct violated several rules of
professional conduct. The referee recommended that we impose 1 year of probation. We
conclude that the referee’s findings that MacDonald violated the rules of professional
conduct are not clearl y erroneous and that the referee did not clearly err by rejecting
MacDonald’s laches defense because she failed to show prejudice . We further conclude
that MacDonald’s false statements impugning the integrity of a judge with knowing or
reckless disregard for the truth are not protected by the First Amendment. Finally, because
of the repeated attorney misconduct , we conclude that a n indefinite suspension, with no
right to petition for reinstatement for 4 months, is the appropriate discipline.
FACTS
MacDonald was admitted to the practice of law in Minnesota in 1987. In 2012,
MacDonald was admonished for trust-account violations and failing to cooperate with the
Director’s investigation. In January 2018, we suspended MacDonald for 60 days for,
among other m isconduct, making false statements about the integrity of a judge with

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reckless disregard for the truth. In re MacDonald, 906 N.W.2d 238, 240, 241–43 (Minn.
2018). MacDonald’s false statements arose from her representation of S.G., a client in a
family law matter for whom MacDonald was the fourth attorney of record. Id. at 240. We
reinstated MacDonald and placed her on probation for 2 years in March 2018. In re
MacDonald, 909 N.W.2d 342 , 342 (Minn. 201 8) (order). One of the conditions of
MacDonald’s probation was that she abide by the Minnesota Rules of Professional
Conduct. Id.
The current petition for disciplinary action arises from MacDonald’s representation
of R.P. and her statements during a ra dio interview. On May 21, 2018, R.P. initially
consulted with MacDonald about potential personal injury litigation. MacDonald offered
to evaluate the merits of R.P.’s personal injury claim for a flat fee of $500.
On June 5, 2018, R.P. returned to MacDonald’s office to hire her firm to review the
documents that he had provided. MacDonald introduced R.P. to K.P., the attorney who
would review his case. R.P. signed a retainer agreement that authorized MacDonald’s firm
to “[r]eview data provided for” a possible personal injury case for a flat fee of $500, with
representation to end “J uly 1 when review [is] complete.” The agreement was signed by
MacDonald and K.P., both purportedly on behalf of the firm , and R.P. paid the $500 fee.
But MacDonald did not inform R.P. that K.P. was neither an employee nor member of her
firm or that the fee would be split between K.P. and herself. MacDonald also did not obtain
R.P.’s written consent to the fee -sharing arrang ement, as required by Minn. R. Prof.
Conduct 1.5(e)(2). After reviewing R.P.’s case, MacDonald declined to provide further
representation.

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In 2018, MacDonald also sought election to the Minnesota Supreme Court. On
October 3, 2018—after she was reinstated to the practice of law but while she was still on
supervised probation —MacDonald was interviewed on WCCO radio regarding her
candidacy. At the outset of the program, MacDonald told the interviewer that she was
speaking out “because courts need reform.” She explained, “[C]ourt orders are damaging
people and families. . . . [T]here’s a severe failure to follow the rule of law, to follow our
constitution and uphold it and, quite frankly, our civil rights are being violated by courts
all over the state. ” The interviewer asked MacDonald if a case involving S.G., a former
client of MacDonald, was “one of the cases that you are referring to of civil rights being
violated.” MacDonald replied that it was.
MacDonald asserted that the judge in the S.G. case violated the rights of both parents
when he ordered that they “have no contact with their children whatsoever.” She further
stated, “ [T]he judge did that in September of 2012 without any hearing, without any
process, and in two hours ordered her, she was already divorced, to leave her home, leave
her children . . . and ordered her to not return or else she would be arrested.” (Emphasis
added.) MacDonald testified at the disciplinary hearing that when she said “without any
process,” she meant “without any due process” and was referring to the judge’s September
7, 2012 order . But she admitted that the order was issued after an emergency telephone
conference in which then -counsel for both parents and a guardian ad litem participated.
Further, that order was entered by mutual agreement of the parties and was even drafted by
S.G.’s attorney at that time.

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Later, the interviewer brought up the disappearance of S.G.’s two daughters during
the custody litigation and S.G.’s conviction arising f rom that disappeara nce. The
interviewer asked MacDonald when she had learned that the girls were missing and what
S.G. had told her. MacDonald stated that anything S.G. may have told her was protected
by attorney-client privilege and that, in any event, she never believed that what S.G. did
was a crime. MacDonald continued, “[T]he crime was with the court when the judge did
an order that neither parent could contact their kids. That’s when the deprivation
happened.” (Emphasis added.)
Finally, at the end of the interview, MacDonald was asked whether there was
anything she wanted vot ers to know before the election. She replied, “I’m running for
Minnesota Supreme Court because time and time again as one attorney representing
thousands of people ac ross the state I’ve witnessed an unprecedented display of courts
abusing their discretion and authority, damaging people and families. . . . [S.G.] is a, a
example of that.”
The Director filed a petition f or disciplinary action against MacDonald in March
2020. Following an evidentiary hearing, the referee issued findings consistent with the
facts described above. The referee concluded that, as to the R.P. matter, the Director had
proven by c lear and convincing evidence that MacDonald had failed to comply with the
requirements of a fee -sharing representation, in violation of Minn. R. Prof. Conduct

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1.5(e)(2).1 As to the WCCO interview, she found that MacDonald’s statements denigrating
the judge in the S.G. case were “demonstrably false” because those statements repeated the
false statements for which MacDonald was disciplined in 2018 and unfairly undermined
public confidence in the administration of justice. The referee also found that, as a whole,
MacDonald’s statements about the judicial system “foster disrespect for the system.” She
concluded that the Director had proven by clear and convincing evidence that MacDonald’s
statements attacking the integrity of the judge and the Minnesota judicial system violated
Minn. R. Prof. Conduct 8.2(a)2 and 8.4(d).3 The referee recommended 1 year of additional
supervised probation.4

1 “A division of a fee between lawyers who are not in the same firm may be made
only if . . . the client agrees to the arrangement, including the share each lawyer will receive,
and the agreement is confirmed in writing . . . .” Minn. R. Prof. Conduct 1.5(e)(2).

2 “A lawyer shall not make a statement that the lawyer knows to be false or with
reckless disregard as to its truth or falsity concerning the qualifications or integrity of a
judge, adjudicatory officer, or public legal officer, or of a candidate for election or
appointment to judicial or legal office.” Minn. R. Prof. Conduct. 8.2(a).

3 “It is professional misconduct for a lawyer to[] . . . engage in conduct that is
prejudicial to the administration of justice.” Minn. R. Prof. Conduct. 8.4(d).

4 The referee also found that MacDonald’s misconduct violated the terms of her
disciplinary probation and the fact that she was on probation when she committed the
misconduct was an ag gravating factor. In a case that was decided after the referee made
her findings and conclusions, we held that it is improper double counting “to rel[y] on the
fact that [an attorney’s] misconduct occurred during his probation as both a violation of the
Minnesota Rules of Professional Conduct and as an aggravating factor to increase [the
attorney’s] recommended discipline.” In re McCloud , 955 N.W.2d 270, 277 –78 (Minn.
2021). Just as we did in McCloud, we will consider the fact that MacDonald was on
probation when she committed the misconduct as an aggravating factor but not as a
separate violation of the rules of professional conduct. See id. at 278.

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ANALYSIS
In a disciplinary proceeding, the Director must prove by clear and convincing
evidence that an attorney violated the Rules of Professional Conduct. In re Grigsby, 764
N.W.2d 54, 60 (Minn. 2009). Because MacDonald ordered a transcript of the hearing
before the referee, she may challenge the referee’ s findings of fact and conclusions . Id.;
see Rule 14(e), Rules on Lawyers Professional Responsibility (RLPR). We gi ve the
referee’s findings and conclusions “great deference” and will not reverse those findings or
conclusions when “they have evidentiary support in the record and are not clearly
erroneous.” Grigsby, 764 N.W.2d at 60 (citation s omitted) (internal quo tation marks
omitted); see also In re Walsh, 872 N.W.2d 741, 747 (Minn. 2015) (providing that when a
transcript is ordered, “we review a referee’s conclusion that an attorney’s conduct violated
the rules of professional conduct for clear error”) . A finding of fact is clearly erroneous
when, upon review, we are “left with the definite and firm conviction that a mistake has
been made.” In re Ulanowski , 800 N.W.2d 785, 793 (Minn. 2011) (citation omitted)
(internal quotation marks omitted). Even when a trans cript is ordered, we review the
referee’s “conclusions of law that do not rely on the referee’s factual findings ,” including
the interpretation of the Rules of Professional Conduct, de novo. In re Montez, 812 N.W.2d
58, 66 (Minn. 2012).

In addition, the referee found that the Director had failed to meet her burden to prove
other rule violat ions alleged in the petition. Because the Director did not challenge the
referee’s findings on those alleged violations, we do not consider them here.

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I.
MacDonald first challenges the referee’s factual findings . As to the WCCO
interview, MacDonald claims that, because the referee quoted only portions of her
statements, the referee’s findings “represent the words of the Referee, not those actually
spoken” by MacDona ld. But MacDonald does not explain why quoting her words more
extensively would change the referee’s findings that her comments violated Rules 8.2(a)
and 8.4(d) of the professional conduct rules. The referee is not required to recite the entire
interview transcript, and the referee did not take MacDonald’s remarks out of context or
otherwise distort their meaning.
MacDonald also claims that the referee conflated two orders from the S.G. case that
the parties offered as exhibits. We have carefully reviewed the referee’s findings and the
relevant exhibits and conclude that the referee properly explained those orders. The referee
correctly observed that an emergency telephone conference was held before the September
7, 2012 order and that a later order identified a stipulation that had been made between the
parties in the S.G. case. Therefore, the referee did not clearly err in her findings related to
the WCCO interview.
As to the R.P. matter, MacDonald challenges the referee’s finding that she failed to
inform R.P. of the fee-splitting arrangement and to obtain his consent to the arrangement
in writing, in violation of Minn. R. Prof. Conduct 1.5(e)(2). MacDonald claims that the
referee lacked clear and convincing evidence to make this finding because MacDonald
verbally informed R.P. of the arrangement and because R.P. wrote the fee split on a copy
of the retainer agreement.

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There is ample support in the record for the referee’s findings. At the hearing, R.P.
testified that he did not find out about the fee split until after the representation ended and
that the notes were written to assist the Director in investigating a complaint he filed against
MacDonald. Although MacDonald and R.P. offered conflicting testimony on this point,
the referee was entitled to credit R.P. over MacDonald. See In re Jones, 834 N.W.2d 671,
677 (Minn. 2013) (stating that we find it “particularly appropriate to defer to the referee”
when the referee’s findings rest on disputed testimony and witness credibility). In addition,
two of the handwritten dates on R.P.’s copy of the retainer agreement are after June 5, the
day R.P. signed the retainer agreement, which supports R.P.’s testimony that he did not
write the notes until a later date. Finally, as MacDonald admitted, her form retainer
agreement does not contain any information about a fee-sharing arrangement. The referee
did not clearly err by finding that MacDonald failed to obtain R.P.’s written consent to the
fee split.
II.
Having upheld the referee’s factual findings, we now turn to MacDonald’s primary
challenges to the referee’s conclusions. MacDonald raises two general defenses : laches
and the First Amendment. We address each in turn.
A.
MacDonald first asserts the defense of laches. She argues that the Director unfairly
delayed by waiting to bring this disciplinary action until March 2020 , although the
underlying events took place in June and October 2018. Although the delay is not
explained by the record, the referee correctly rejected MacDonald’s defense. The doctrine

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of laches bars prosecution of a disciplinary petition only when the attorney has been
unfairly prejudiced by the delay. See In re Sklar , 929 N.W.2d 384, 390 (Minn. 2019)
(rejecting a laches defense because there were “no concerning gaps in the procedural
history” of the case and because the attorney had not “articulated any specific prejudice”
from the delays); In re N.P., 361 N.W.2d 386, 392 (Minn. 1985) (“Our concern, however,
is not directed so much at the length of the delay itself but at whether the delay has resulted
in prejudice to the attorney being investigated. ”). Because the referee found that “[n]o
unfair prejudice to [MacDonald] is evident in the record of these proceedings,” and because
MacDonald does not explain how she was prejudiced by the delay, the referee did not
clearly err by rejecting MacDonald’s laches defense.
B.
MacDonald’s next, and primary, defense is that her comments during the interview
are protected by the First Amendment. We construe her brief as advancing the following
arguments: (1) her statements were nonactionable opinion, (2) her statements were true,
(3) the referee applied the wrong legal standard for determining whether MacDonald’s
speech was protected, and ( 4) the referee failed to apply strict scrutiny review . None of
these arguments has merit.
Turning to MacDonald’s first argument, we conclude that her comments were
statements of fact, not of opinion. When determining whether a statement is an opinion,
we consider the statement’s “specificity and verifiability, as well as [its] literary and public
context.” Diesen v. Hessburg, 455 N.W.2d 446, 451 (Minn. 1990) . “Merely cloaking an

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assertion of fact as an opinion does not give that assertion constitutional protection.” In re
Nathan, 671 N.W.2d 578, 584 (Minn. 2003).
The first statement at issue is MacDonald’s claim that the judge in the S.G. matter
violated the rights of the parents by issuing the September 7, 2012 order “without any
hearing, without any process .” At the disciplinary hearing, MacDonald admitted that t he
order was issued after a telephone conference at which counsel for both parents
participated, but, MacDonald testified, she does not consider a telephone conference to be
a hearing. She also explained that by “without any process” she meant “without any due
process,” which she believes includes “her client’s right to be personally noticed, to be
personally heard, for the public to have access to the heari ng, and compliance with all of
[the] standard deadlines required in family court pleadings.”
Without a doubt, MacDonald is free to speak her opinion about what due process
should entail. But her comment was not an opinion; it was a statement of fact. MacDonald
asserted that a particular order in a particular case was issued without any hearing or any
due process. That claim is specific and verifiable. Further, in context, a reasonable person
would not understand MacDonald merely to be opining about the sufficiency of a telephone
conference because MacDonald failed to disclose that a telephone conference took place .
A reasonable listener would have no reason to assume the relevant facts, namely, that the
order was issued on the mutual agreement of the parties after a telephone conference , in
which counsel for both parties participated, and that the order was drafted by then-counsel
for MacDonald’s former client. In fact, a reasonable listener would assume the opposite,
namely, that those events did not take place. Consequently, even if MacDonald’s statement

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were merely an opinion, it would not be protected. See Milkovich v. Lorain J. Co. , 497
U.S. 1, 18–19 (1990) (stating that there is no “wholesale defamation exemption” for
opinions because expressions of opinion often imply false statements of fact); Restatement
(Second) of Torts § 566 cmt. c (1977) (explaining that even a statement of opinion can give
rise to defamation liability when it implies the existence of undisclosed defamatory facts
as the basis for the opinion) . In any event , we reject MacDonald’s attempt to immunize
her statement by recasting it as an opinion now and conclude that MacDonald’s assertion
was a statement of fact.
Next, MacDonald’s comment that “the crime was with the court when the judge did
an order that neither parent could contact their k ids” is also a statement of fact. The
question of whether the judge exceeded his lawful authority by issuing the order is specific
and verifiable.
Finally, MacDonald stated , “[C]ourt orders are damaging people and families. . . .
[T]here’s a severe failure to follow the rule of law, to follow our constitution and uphold it
and, quite frankly, our civil rights are being violated by courts all over the state.” Then, in
response to the interviewer’s question asking whether the S.G. case “was one of the cases
that you are referring to of civil rights being violated,” MacDonald replied that it was.
MacDonald’s statement that the S.G. matter is an example of courts damaging people and
families, failing to follow the rule of law, and violating people’s civil rights is specific and
verifiable, and in context could be understood only as a factual claim. Accordingly, the

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referee did not err by determining that MacDonald’s statements were not protected
opinions.5
Turning to MacDonald’s second argument, we consider whether her statements
were true. MacDonald’s assertion that the September 7, 2012 order violated the rights of
the parents because it was issued “without any hearing, without any process” is false .
Ordinarily, procedural due process requires notice and a meaningful opportunity to be
heard. Sawh v. City of Lino Lakes , 823 N.W.2d 627 , 632 (Minn. 2012). As MacDonald
admitted at the disciplinary hearing , the order was issued after a telephone conference in
which then-lawyers for both pa rents participated, and S.G’s then-lawyer even drafted the

5 Two additional issues are presented by this discipline proceeding. First, the referee
found that MacDonald’s statements denigrating the judicial system as a whole violated the
rules of professional conduct and are subject to discipline. Whether MacDonald’s general
assertions of failure in the Minnesota system of justice are subject to discipline, when they
are not linked to specific facts and circumstances, presents a close question. See Diesen,
455 N.W.2d at 451 (stating that we consider a statement’s specificity and verifiability when
determining whether it is protected as a statement of opinion).
Second, we are concerned about possible due process issues presented by this
disciplinary proceeding. In a disciplinary context, due process requires the charges against
an attorney to be “sufficiently clear and specific” and for the attorney to be “afforded an
opportunity to anticipate, prepare and present a defense.” In re Gherity, 673 N.W.2d 474,
478 (Minn. 2004) . Because the Director’s petition did not allege that MacDonald’s
criticism of the judicial system violated the rules, there was no occasion for MacDonald to
produce evidence or testimony at her disciplinary hearing to explain the basis of those
statements. Consequently, whether MacDonald’s general criticisms concerning the
administration of justice, unrelated to the S.G. matter, were properly before the referee is
unclear.
Because we do not rely on MacDonald’s general statements denigrating the judicial
system in imposing discipline, w e need not decide either of these issues. See In re
Anderson, 759 N.W.2d 892, 896 (Minn. 2009) (declining to reach factual and due process
issues when other findings were “sufficient to support the sanction we believe to be
appropriate”).

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order. MacDonald, 906 N.W.2d at 24 0. Therefore, the judge’s order did not violate the
parents’ rights for lack of a hearing or due process , and MacDonald’s statement to the
contrary was false, as the referee properly found.6
Next, MacDonald’s statement that the judge committed a “crime” in issuing the
order is false because MacDonald has identified no crime committed by the judge , and
MacDonald’s due process claims were previously considered and rejected. See id. at 240,
243 (explaining that MacDonald’s claims were rejected by the district court and in a
subsequent federal lawsuit). For the same reason , MacDonald’s statement that the S.G.
case is an example of “civil rights . . . being violated b y courts all over the state ” was
untrue. Id. MacDonald’s second argument is without merit.
Turning to MacDonald’s third argument , we consider whether the referee applied
the correct legal standard to determine whether MacDonald’s comments were protected by
the First Amendment. Relying on In re Graham, 453 N.W.2d 313, 322 (Minn. 1990), the
referee applied an objective standard to determine that MacDonald acted with knowing or

6 The referee found that MacDonald’s statement was “demonstrably false” because it
was “found to have been made with reckless disregard for the truth in the 2018 disciplinary
proceedings.” The referee implicitly refers to her finding that we disciplined MacDonald
in 2018 because MacDonald falsely claimed in a federal lawsuit that the judge’s order was
issued ex parte. MacDonald challenges this finding.
Our 2018 decision suspending MacDonald does not expressly say that we were
disciplining MacDonald for falsely claiming that the order was issued ex parte. Neither
does it catalogue every false statement that formed that basis of our decision to discipline
MacDonald. But it does carefully explain the circumstances surrounding the September 7,
2012 order, see MacDonald , 906 N.W.2d at 239 –40, and it clearly identifies that
MacDonald’s di scipline was based in part on her reckless, false statements about the
integrity of the judge in the S.G. case, see id. at 246–47. Therefore, the referee was correct
that, based on our 2018 decision, MacDonald’s statements during the WCCO interview
were “demonstrably false.”

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reckless disregard for the truth because a reasonable attorney would n ot have made her
statements under the same circumstances. MacDonald argues that the referee should have
considered MacDonald’s belief that her statements were true because the United States
Constitution requires a subjective “actual malice” standard for c ivil and criminal liability
for defaming a public figure. See New York Times Co. v. Sullivan , 376 U.S. 254, 279–80
(1964); Garrison v. Louisiana, 379 U.S. 64, 74 (1964). MacDonald’s argument is without
merit. As we explained in MacDonald’s 2018 discipli nary proceedings, Graham adopted
a “modified version” of the constitutional standard with respect to attorney discipline.
MacDonald, 906 N.W.2d at 246 (explaining the “modified actual-malice test” in Graham,
453 N.W.2d at 321–22, 321 n.6). Under that standard, the factfinder determines whether
a “reasonable attorney” would have made the false statements under the same
circumstances. Id. Nothing has changed since 2018 that would prompt us to reconsider
our well-established standard, and no other authority cited by MacDonald requires us to do
so.7 Accordingly, the referee was correct to apply an objective standard.

7 MacDonald’s other attempts to bolster her position are not persuasive. She cites to
the American Bar Association’s version of Rule 8.2, which we have observed is consistent
with the subjective standard articulated in Sullivan. See Graham, 453 N.W.2d at 321. But
because in Graham we expressly declined to follow the Sullivan standard, her argument
fails. Id.
MacDonald also relies on several cases whose authority we distinguished when we
disciplined her in 2018. See MacDonald, 906 N.W.2d at 246 n.11 (distinguishing Gentile
v. State Bar of Nevada, 501 U.S. 1030 (1991), and Snyder v. Phelps, 562 U.S. 443 (2011),
and explaining that In re Yagman , 55 F.3d 1430 , 1437 –38 (9th Cir. 1995), applies an
objective standard like Graham). And although MacDonald relies on In re Green, 11 P.3d
1078, 1085 (Colo. 2000), which applies a subjective standard, that decision is not binding
on us.

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Moreover, the referee also concluded that MacDonald’s statements impugning the
integrity of the judge were “knowingly” false, and we agree. MacDonald was aware that
her claim that the September 7, 2012 order was issued without any hearing and without
any due process was false as early as 2013. MacDonald had challenged the September 7,
2012 order, arguing that it was issued because of an ex parte communication between the
judge and counsel for one parent. Id. The judge denied MacDonald’s motion and
explained that it was based on an inaccurate factual assumption because the order was
issued by mutual agreement of the parties after a telephon e conference in which then -
counsel for both parents participated. Id. Further, her argument bordered on the absurd,
given that the order had been drafted by S.G.’s then -attorney. Id. And not only did
MacDonald know these facts in 2013, she also was reminded of these facts in her 2018
disciplinary proceedings, which predate her false statements of fact that prompted this
disciplinary action. See id. Accordingly, the referee did not err by concluding that
MacDonald’s statements impugning the judge’s integrity were knowingly false.
Relying on Republican Party of Minnesota v. White , 536 U.S. 765 (2002),
MacDonald also argues that her statements were protected because she was commenting
on legal issues as a candidate for judicial office , which, according to MacDonald, should
merit greater constitutional protection . Her reliance is misplaced. White struck down a
rule of the Minnesota Code of Judicial Conduct that broadly prohibited candidates for
judicial office from announcing their views on disputed legal or political issues. Id. at 788.
But White did not hold that a candidate may knowingly or recklessly make false statements
of fact about the integrity of judicial officers without consequence, which is the issue here.

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Neither did White conclude that candidates for judicial office receive greater constitutional
protection than other lawyers. As a candidate for judicial office, MacDonald was obligated
to follow the rules of professional conduct , and MacDonald’s knowingly false statements
about a judge, made during a public interview as a candidate for judicial office , are not
protected by White.
Turning to MacDonald’s final argument, we consider whether the referee erred by
not applying strict scrutiny when determining whether MacDonald’s comments could
subject her to discipline under the rules of professional conduct. It is well established that
“[t]he First Amendment ‘generally prevents government from proscribing speech . . .
because of disapproval of the ideas expressed.’ ” State v. Casillas, 952 N.W.2d 629, 636
(Minn. 2020) (quoting R.A.V. v. City of St. Paul , 505 U.S. 377, 382 (1992) ), petition for
cert. filed, 89 U.S.L.W. 3398 (U.S. May 24, 2021) (No. 20-1635). Generally, a statute that
regulates speech based on its content is presumptively unconstitutional and will be upheld
only when it survives strict scrutiny , that is, if the statute is narrowly tailored to serve a
compelling government interest. Id. at 640.
Strict scrutiny review is not required when a lawyer is disciplined for defamatory
conduct that violates the rules of professional conduct. Defamation is a category of speech
to which ordinary constitutional protections do not apply. See id. at 637 ( identifying
defamation as one of the “limited areas” in which the content of speech may be restricted
because it is “ ‘of such slight social value as a step to truth that any benefit that may be
derived from [it] is clearly outweighed by the societal interest in order and morality’ ”
(quoting R.A.V., 505 U.S. at 382 –83)). Minnesota Rule of Professional Conduct 8.2(a)

18
prohibits a subset of defamatory speech, namely, false statements of fact by a lawyer
“concerning the qualifications or integrity of a judge, adjudicatory officer, or public legal
officer, or of a candidate for election or appointment to judicial or legal office. ”
Accordingly, strict scrutiny review is not required. Instead, as we held in Graham, the
proper test for determining whether a lawyer may be subject to discipline under Rule 8.2(a)
is whether a reasonable lawyer in the same circumstances would have made the statement.
453 N.W.2d at 322.
In sum, we conclude that the referee properly rejected MacDonald’s laches and First
Amendment defenses.8
III.
We now consider the appropriate discipline. The referee recommends that we
impose a period of probation for 1 year under the supervision of an attorney who is familiar
with the allegations of both the 2018 discipline and the violations in this case. The Director

8 MacDonald also claims, in passing, that the referee’s conclusions about her
interview statements were made “with no analysis,” “based on [the referee’s] beliefs,” and
“without applying a legal standard.” To the contrary, the referee’s conclusion that
MacDonald’s statements violated the rules of professional conduct is well supported by the
referee’s findings and the evidence in the record. And the referee’s conclusion that
MacDonald’s statements harmed the public and legal profession are consistent with our
precedent. For example, in MacDonald’s 2018 disciplinary proceedings , we stated that
“baselessly attacking the integrity of a judge” in itself harms the legal profession.
MacDonald, 906 N.W.2d at 248. We have observed elsewhere that an attorney’s
“unprofessional actions and demeanor ‘reflect adversely on the bar, and are destructive of
public confidence in the legal profession.’ ” In re Torgerson, 870 N.W.2d 602, 616 (Minn.
2015) (quoting In re Shaughnessy , 467 N.W.2d 620, 621 (Minn. 1991)). Therefore, the
referee did not clearly err by concluding that MacDonald’s statements violated the rules of
professional conduct and harmed the public and the legal profession.

19
asks us to impose a 90-day suspension with the requirement of a petition for reinstatement.
MacDonald requests that we impose no discipline.
“Although we give ‘great weight’ to the referee’s recommendation, we maintain the
ultimate responsibility for determining the appropriate sanction. ” In re Greenman , 860
N.W.2d 368, 376 (Minn. 2015) (citation omitted). In determining the appropriate sanction,
we examine four factors: the nature of the misconduct , the cumulative weight of the
disciplinary violations, the harm to the public , and the harm to the legal profession. Id.
We also consider aggravating and mitigating factors. Id. Finally, although we may
consider similar cases, the discipline is tailored to the specific facts of each case. Id.
Ultimately, the goal of discipline is “not to punish the attorney, but rather 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 Albrecht, 779 N.W.2d 530, 540 (Minn. 2010)
(citation omitted) (internal quotation marks omitted).
A.
We first address the four factors, beginning with the nature of MacDonald’s
misconduct. MacDonald committed two types of misconduct: knowingly making false
statements about the in tegrity of a judge and failing to obtain her client’s written consent
to a fee -splitting arrangement. Because “[h]onesty and integrity are chief among the
virtues the public has a right to expect of lawyers,” In re Ruffenach, 486 N.W.2d 387, 391
(Minn. 19 92), it is well established that dishonesty “warrants severe discipline,” In re
Houge, 764 N.W.2d 328, 338 (Minn. 2009). Accord In re Nett , 839 N.W.2d 716, 722
(Minn. 2013) (stating that an attorney’s misconduct, which included making false

20
statements abo ut members of the judiciary, “warrants a serious disciplinary sanction”).
Therefore, MacDonald ’s false statements about the judge weigh in favor of serious
discipline.
The rules governing fee splitting between attorneys in different firms protect
important client rights. See Christensen v. Eggen , 577 N.W.2d 221, 225 (Minn. 1998)
(explaining that the rules protect the right of clients to choose their attorney, remain
knowledgeable about their case, and avoid the risks inherent in referral fees). Here,
MacDonald failed to obtain a client’s written consent to a fee-splitting arrangement, but
the arrangement involved a single client, a relatively small amount of money ($500), and
only one attorney from another firm. Consequently, the nature of this misconduc t is less
significant.
B.
We next address the cumulative weight of MacDonald’s disciplinary violations. In
doing so, we distinguish “a brief lapse of judgment or a single, isolated incident of
misconduct from multiple instances of misconduct occurring over a substantial amount of
time.” Greenman, 860 N.W.2d at 377 (citation omitte d) (internal quotation marks
omitted). MacDonald’s misconduct took place on only two occasions and in fairly close
proximity: June 5 and October 3, 2018. She also committed each type of misconduct on
only one occasion. Consequently, this factor does not weigh heavily against MacDonald.
C.
The final two factors—harm to the public and to the legal profession—require us to
consider “the number of clients harmed and the extent of their injuries.” In re Nwaneri ,

21
896 N.W.2d 518, 526 (Minn. 2017). Here, MacDonald’s misconduct in the R.P. matter is
relatively minimal. It involved a single client, a sum of only $500, and an initial review of
his case. In addition, MacDonald’s misconduct did not waste judicial resour ces beyond
those involved in the disciplinary process. But the harm from MacDonald’s comments
during the interview is serious. As we stated when MacDonald was previously before us,
“baselessly attacking the integrity of a judge” in itself harms the legal profession.
MacDonald, 906 N.W.2d at 248 ; see Minn. R. Prof. Conduct 8.2 cmt. 1 (“Expressing
honest and candid opinions on [matters such as the fitness of judicial candidates]
contributes to improving the administration of justice. Conversely, false statements by a
lawyer can unfairly undermine public confidence in the administration of justice.”). Here,
the harm is multiplied because MacDonald’s statements were aired on a radio interview
and were heard by countless listeners. Therefore, these factors warrant more severe
discipline.
D.
We also must consider any aggravating and mitigating factors. The referee found
three aggravating factors: (1) MacDonald has a disciplinary history; (2) MacDonald was
on probation at the time of her misconduct; and (3) MacDonald has over 30 years of
experience. The referee found that no mitigating factors are applicable.
We agree with the referee that MacDonald’s disciplinary history and probation
status are two aggravating factors. See In re McCloud, 955 N.W.2d 270, 278 (Minn. 2021)
(finding history of prior discipline and probation status at the time of misconduct as two
aggravating factors). We give serious weight to MacDonald’s disciplinary history because

22
her prior discipline involved the same type of misc onduct. See In re Hulstrand , 910
N.W.2d 436, 444 (Minn. 2018). MacDonald does not contest these factors.
MacDonald challenges the referee’s use of her experience practicing law as an
aggravating factor. She argues that her career should be a mitigating factor. As support,
she cites In re Wylde , 454 N.W.2d 423, 423 (Minn. 1990), in which we held that the
appropriate discipline for a lawyer who had an unblemished disciplinary record for 20
years, and whose only misconduct had been the late filing and payment of personal income
taxes, was a public reprimand followed by probation.
We agree with the referee. It is well established that an attorney’s “lengthy
experience” may be treated as an aggravating factor. In re Sea, 932 N.W.2d 28, 37 (Minn.
2019). In fact, we treated MacDonald’s lengthy experience as an aggravating factor when
we disciplined her in 2018. MacDonald, 906 N.W.2d at 248–49. Further, even in Wylde,
we did not consider the length of the lawyer’s career in isolation; we considered it in
conjunction with the attorney’s professional reputation , which can itself be a mitigating
factor. See 454 N.W.2d at 424 (explaining that the attorney was “held in high esteem” for
his “professional competence” ); Albrecht, 779 N.W.2d at 537 (noting that a lawyer’s
reputation “for integrity and hard work” can be a mitigating factor). Finally, our law has
changed since we decided Wylde, and we no longer consider the absence of a disciplinary
history to be a mitigating factor. See In re A itken, 787 N.W.2d 152, 162 (Minn. 2010) .
Therefore, MacDonald’s lengthy experience is an aggravating factor.
The Director asks us to recognize an additional aggravating factor not found by the
referee, namely, MacDonald’s failure to recognize the wrongful nature of her misconduct

23
and her failure to express remorse. “Whether an attorney is remorseful for [her]
misconduct is an important issue in an attorney discipline case,” and the failure to address
it can be clear error. Albrecht, 779 N.W.2d at 538. H ere, the referee made no findings
expressly related to MacDonald’s recognition of the wrongfulness of her act ions or her
expression of remorse, despite the Director arguing that lack of remorse was an aggravating
factor. But the record unequivocally establishes that MacDonald has not expressed
remorse and has sought only to justify her conduct. For example, at the disciplinary
hearing, MacDonald repeatedly defended her comments from the WCCO interview,
saying, “My opinion was that [the September 7, 2012 order] didn’t have any due process,”
“There was no phone hearing [but only a phone conference because] that didn’t resemble
any type of hearing that I’ve ever been involved with,” “My opinion is absolutely positively
there was no due process there. . . . Due process is more extensive than that,” and “My
opinion is [the telephone conference] is ex parte . . . but my opinion is different than yours,
I guess.” She also refused to acknowledge that she had failed to obtain R.P.’s written
consent to the fee-splitting arrangement, even though she admitted that, at most, she
verbally told R.P. of the fee split, and that he wrote it down himself. Therefore, the referee
clearly erred by not finding that MacDonald’s failure to acknowledge the wrongfulness of
her conduct, and her lack of remorse, are an aggravating factor.
Next, MacDonald asserts that her pro bono work is a mitigating factor. Although
“ ‘extensive pro bono or civil work’ might constitute mitigation,” this factor requires a
“qualitative judgmen t” by the referee to determine whether the pro bono work is
“adequately extensive to deserve mitigation.” MacDonald, 906 N.W.2d at 249 (quoting

24
Wylde, 454 N.W.2d at 426 n.5). Here, the referee did not make specific findings as to
MacDonald’s pro bono wor k; the referee simply found that “[n]o mitigating factors are
applicable.” Although the failure to address aggravating or mitigating factors can be clear
error, a “lack of clarity” in addressing a lawyer’s pro bono work is not clear error when the
record contains few details about the extent , or number of hours , of the lawyer’s
involvement. Albrecht, 779 N.W.2d at 539. That is the case here. MacDonald has offered
some evidence of the extent of her work by testifying that she has received the Northstar
Lawyers pro bono recognition every year from 2013 to 2019. But it is not clear whether,
or the extent to which, her other activities or accomplishments constitute pro bono legal
work. Overall, the record does not show that MacDonald’s pro bono work was so extensive
that the referee clearly erred by determining that no mitigating factors applied.
E.
Finally, we examine similar cases to ensure the imposition of consistent discipline.
The Director cites three cases to support her request that we impose a 90 -day suspension
with the requirement of a petition for reinstatement. MacDonald cites no cases for
comparison to support her request that we impose no discipline.
The most similar case is Ma cDonald’s 2018 disciplinary proceedings in which we
suspended her for 60 days, followed by 2 years of probation. MacDonald, 906 N.W.2d at
240. As here, MacDonald made false statements about the integrity of the same judge in
his handling of the same matter that was the subject of MacDonald’s comments on WCCO
radio. See id. But there, MacDonald’s false statements were of a greater variety, were
made orally and in writing, were asserted in three fora, and were repeated over a longer

25
duration of time. See id. at 240–45. In addit ion, MacDonald had engaged in extensive
other misconduct, which included failing to competently represent a client, improperly
using subpoenas, knowingly disobeying a court rule, failing to follow a scheduling order,
and engaging in disruptive courtroom co nduct, including behavior resulting in her arrest.
Id. at 244. But, unlike here, MacDonald did not engage in repeat behavior for which she
had previously been suspended from the practice of law and subsequently placed on
supervised probation.
We also look to Graham, a case we relied on when fashioning MacDonald’s
discipline in 2018. See MacDonald, 906 N.W.2d at 250. There, Graham’s misconduct
included repeatedly making false statements about multiple people, including a district
court judge and a magistrate judge, with reckless disregard for the truth. Graham, 453
N.W.2d at 315. We stated that “[w] here an attorney makes statements ‘of his certain
knowledge,’ with reckless disregard as to the statemen ts’ truth or falsity, impugning the
integrity of those who work within the judicial system, at the very least a public reprimand
is in order.” Id. at 325. But we also considered several aggravating factors, including that
Graham had accused the judge of “ perjury, deliberate falsehoods and criminal abuse of
power” and lodg ed multiple frivolous motions. Id. We also gave serious weight to
Graham’s “attitude” of “ believ[ing] in a conspiracy against him and preferr[ing] to find
fault with others than himself.” Therefore, we concluded that a 60 -day suspension was
appropriate. Id. As in Graham, MacDonald’s primary misconduct is her persistent
denigration of a judge’s integrity, and her statements bear some notable similarities to those
in Graham as to the allegedly unfair and criminal process used by the judge. Although

26
here the referee made no findings as to MacDonald’s attitude, we have determined that
MacDonald has shown a lack of remorse , which constitutes an aggravating factor.
Moreover, Graham had not previously been suspended for recklessly making false
statements about the integrity of a judge.
Another decision cited by the Director , which we also relied on in 2018, is In re
Torgerson, 870 N.W.2d 602 (Minn. 2015). See MacDonald, 906 N.W.2d at 249–50. We
disciplined Torgerson for disobeying a court order, repeatedly making false statements,
making unfounded accusations against a judge, acting belligerently toward a judge and
court staff, and charging a nonrefundable flat fee. Torgerson, 870 N.W.2d at 605.
Although the referee recommended a public reprimand, we imposed a 60-day suspension.
Id. at 606. Unlike MacDonald, Torgerson did not have a prior disciplinary history and had
at least one mitigating factor in her favor. Id. at 614. But Torgerson’s misconduct was of
a broader range than MacDonald’s misconduct and took place on multiple occasions.
The final decision cited by the Director is Nathan. We disciplined Nathan for
engaging in “a pattern of harassing and frivolous conduct,” “violating, threatening to
violate and assisting others in violating court orders and confidentiality statutes,” and
“making unfounded derogatory statements about judges and false statements to others.” .
671 N.W.2d at 580. We suspended Nathan for 6 months, relying heavily on Nathan’s
pattern of harassing and frivolous litigation and on his refusal to acknowledge that his
actions were wrong. Id. at 585 –86. The Director acknowledges th at MacDonald’s
misconduct was less severe than Nathan’s misconduct, and we agree.

27
The referee’s recommendation of 1 year of probation is not well supported by these
decisions, each of which, except for Nathan, imposed a 60 -day suspension. In her
disposition memorandum the referee reasoned that the record and procedural posture
“militate[] against the severe sanction recommended by” the Director because “no other
claims” of a similar nature were made against MacDonald since the WCCO interview in
2018 and be cause MacDonald submitted to close supervision during her probation.
Although the referee is factually correct, we disagree with her assessment of the
implications. MacDonald’s avoidance of further misconduct during the remainder of her
probation is not a mitigating consideration. See Albrecht, 779 N.W.2d at 538 –39 (“We
have repeatedly stated that mere compliance with the rules of professional conduct is not a
mitigating factor in attorney discipline cases.”). Neither is the mere passage of time, which,
as the referee properly concluded, bars prosecution only after a showing that it prejudiced
the attorney. See N.P., 361 N.W.2d at 392.
We ultimately bear the responsibility of fashioning discipline that wi ll “protect the
public,” “protect the judicial system, ” and “deter future misconduct by the disciplined
attorney as well as by other attorneys.” Albrecht, 779 N.W.2d at 540 (citation omitted)
(internal quotation marks omitted). C lose supervision on proba tion has not been enough
to prevent MacDonald from repeating her misconduct, so we have no confidence that an
additional year of probation would prevent similar misconduct in the future. Neither was
her 60-day suspension in 2018 sufficient motivation. We are especially troubled by the
repeated nature of MacDonald’s misconduct after discipline, MacDonald’s knowledge of

28
the factual falsity of her statements, her refusal to acknowledge the wrongfulness of her
conduct, and her lack of remorse.
Accordingly, we order that:
1. Respondent Michelle Lowney MacDonald is indefinitely suspended from the
practice of law, effective 14 days from the date of this opinion, with no right to petition for
reinstatement for 4 months.
2. Respondent shall pay $900 in costs, pursuant to Rule 24(a), RLPR, and shall
comply with the requirements of Rule 26, RLPR (requiring notice of suspension to clients,
opposing counsel, and tribunals).
3. Respondent may petition for reinstatement pursuant to Rule 18(a) –(d),
RLPR. Reinstatement is 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 professional responsibility, see Rule 18(e)(2), RLPR ; Rule 4.A.(5), Rules f or
Admission to the Bar (requiring evidence that an applicant has successfully completed the
Multistate Professional Responsibility Examination) , and satisfaction of continuing legal
education requirements, see Rule 18(e)(4), RLPR.
Suspended.

CHUTICH, J., took no part in the consideration or decision of this case.

THISSEN, J., took no part in the consideration or decision of this case.