In re Petition for Disciplinary Action against Joseph Kaminsky, a Minnesota Attorney, A21-1649, Supreme Court, January ...

STATE OF MINNESOTA

IN SUPREME COURT

A21-1649

Original Jurisdiction Per Curiam

In re Petition for Disciplinary Action against Took no part, Procaccini, J.
Joseph Kaminsky, a Minnesota Attorney, Filed: January 10, 2024
Registration No. 0053351. Office of Appellate Courts

________________________

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

Jessica L. Klander, Kiralyn J. Locke, Bassford Remele, P.A., Minneapolis, Minnesota, for
respondent.

________________________

SYLLABUS

1. The referee’s conclusions that respondent violated 16 rules of the Minnesota

Rules of Professional Conduct were not clearly erroneous.

2. The appropriate discipline for an attorney whose misconduct includes filing

a false affidavit with a court, failing to properly supervise staff, neglecting a client, failing

to represent another client competently and diligently, and failing to deposit unearned

advanced fees in a trust account without a flat fee agreement is an indefinite suspension

with no right to petition for reinstatement for 9 months.

1
 OPINION

PER CURIAM.

The Director of the Office of Lawyers Professional Responsibility (Director) filed

a petition for revocation of probation and for further disciplinary action against respondent

Joseph Kaminsky. The Director alleged that for more than 5 years, Kaminsky violated

many rules of professional conduct in three client matters. We appointed a referee, who

concluded that Kaminsky violated 16 rules of the Minnesota Rules of Professional

Conduct, some of them more than once. These violations include filing a false affidavit

with a court, failing to properly supervise staff, neglecting a client, failing to represent

another client competently and diligently, and failing to deposit advanced fees in a trust

account without a flat fee agreement. Several of these violations occurred while Kaminsky

was on disciplinary probation. The referee recommended that Kaminsky be suspended

indefinitely, with no right to petition for reinstatement for a minimum of 9 months.

Kaminsky ordered a transcript and challenged three of the referee’s conclusions and

the recommended discipline. The Director agrees with the referee’s conclusions and

recommended discipline. We conclude that the referee did not err in her conclusions and

that, given the unique facts of this case, the appropriate discipline is an indefinite

suspension with no right to petition for reinstatement for 9 months.

FACTS

The following facts are based on the referee’s findings of fact. Joseph Kaminsky

was admitted to practice law in Minnesota on October 20, 1972. He started his solo

practice shortly thereafter and has continued this practice for over 50 years. Kaminsky has

2
a substantial disciplinary history spanning over 43 years of his practice, including nine

admonishments, two private probations, and two suspensions. Notably, he has been

previously disciplined for the same type of misconduct underlying several violations in the

petition.

The Director’s petition arises from Kaminsky’s representation of three clients.

Kaminsky does not challenge any findings of fact or conclusions related to his

representation of G.H. 1 He does challenge the referee’s conclusions related to two other

matters.

M.F. Matter

In July 2018, M.F. retained Kaminsky to amend a previous child custody order. On

July 3, 2018, Kaminsky filed a motion requesting that the district court grant M.F., on an

ex parte basis, temporary physical custody of his children because their mother, P.R., was

hospitalized and unable to adequately care for them.

The requested relief was granted on July 9, 2018, and an expedited hearing was set

for July 18, 2018. In its July 9, 2018 order, the district court explicitly required personal

service on P.R. no later than July 11, 2018, at 12 p.m. Personal service was particularly

1
These uncontested conclusions of the referee include that Kaminsky failed to have
a proper flat fee agreement with G.H., failed to deposit G.H.’s funds into a trust account,
and failed to properly document receipt of a cash payment from G.H., in violation of Rules
1.1, 1.5(b)(3), 1.15(a), 1.15(c)(5), and 1.15(h) of the Minnesota Rules of Professional
Conduct. Before representing G.H., Kaminsky had been previously disciplined for this
type of misconduct, and while representing G.H., he was in another disciplinary action
involving the same misconduct during his representation of a different client.

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important because P.R. might lose sole physical custody of her children and she was

possibly in the hospital. Kaminsky testified that he reviewed the July 9, 2018 order.

On July 12, 2018, Kaminsky’s staff filed an affidavit of personal service with the

district court. The affidavit reflected that P.R. was personally served at an Oak Avenue

residence in Annandale, Minnesota. The affidavit was ambiguous as to the date of service

stating that service was completed on either July 11 or 12, 2018. The affidavit did not

record the time of the service.

Operating under Kaminsky’s representation that P.R. had been timely and

personally served, the district court held the expedited hearing on July 18, 2018. P.R. did

not appear at the hearing. Because P.R. failed to appear, the court granted M.F. temporary

physical custody of the parties’ children, when P.R. had previously had sole physical

custody, and reduced P.R.’s parenting time to just 2 hours of supervised visitation a week.

P.R. did not have her custody rights restored for 2 years. At an October 2020

evidentiary hearing, P.R. testified that she did not learn of the July 18, 2018 hearing until

the day before. P.R. argued that procedural errors had occurred in July 2018, including

Kaminsky’s failure to personally serve her notice of the hearing. The district court issued

an order making numerous findings and conclusions regarding the purported service of

P.R. Importantly, these findings included that P.R. credibly testified that she was never

personally served with the notice because she was then in the hospital and that she had

never lived at the Oak Avenue address on the affidavit. Additionally, the district court

“was concerned that the affidavit was clearly falsified to get around the notice

4
requirements” and that, as a result, “P.R.’s rights to parent her children were squandered,

and that a grave injustice to P.R. had been committed.”

At the evidentiary hearing before the referee, several witnesses, including

Kaminsky, explained the attempted personal service. A.K., the process server, testified

that hours after the district court’s service deadline of 12 p.m. on July 11, 2018, had passed,

he drove to the Oak Avenue address on the affidavit but could not locate it. He then called

Kaminsky who instructed A.K. to call the client, M.F., for more information. A.K. and

M.F. met, and M.F. showed A.K. where P.R. lived on Excelsior Avenue. Kaminsky did

not investigate P.R.’s residence before attempting service and instead relied on his client

for an address without any independent verification.

The person who answered the door at the Excelsior Avenue residence did not accept

service. A.K. called Kaminsky to ask if A.K. could leave the papers at the door, and

Kaminsky agreed. Kaminsky admitted that leaving documents on a doorstep is not

personal service. See Minn. R. Civ. P. 4.03 (defining personal service to include delivering

a copy to the individual personally or leaving a copy at the individual’s place of abode with

a person of suitable age). Kaminsky knew that he had instructed A.K. to act in a manner

falling short of the court-ordered personal service and inconsistent with applicable rules.

The next day, A.K. went to Kaminsky’s office to execute the affidavit of personal

service on P.R. T.M., Kaminsky’s secretary, prepared the affidavit using the Oak Avenue

address Kaminsky had given her. Though Kaminsky was aware that there had been an

issue with this address, he did not tell T.M. this fact.

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 Based on these facts, the referee made the following key findings that formed the

basis of her conclusions. Kaminsky failed to ensure that personal service complied with

the court’s specific deadline. He also failed to review the affidavit before it was filed with

the imprecise date, the incorrect address, and false affirmation from A.K. that personal

service had been made. Kaminsky’s instructions to his staff to file the affidavit

demonstrated his willful disregard of its falsity. Though he was aware that personal service

never occurred, and that the affidavit was filed, he never asked A.K. to sign a corrected

affidavit of service or informed the court of the error. Kaminsky did not investigate the

issues related to the address on the affidavit of service until a complaint was sent to the

Director. Moreover, even after taking these investigatory steps, he did not correct the false

affidavit or clarify the issues with the court. Kaminsky failed to acknowledge that the

personal service errors deprived P.R. of her opportunity to be heard and the impact upon

the integrity of the legal system. And he minimized the “cataclysmic” harm to P.R. when

she lost custody of her children when he explained that, in his opinion, she would not have

retained custody of her children under the circumstances of her hospitalization. The referee

found this testimony about lack of harm “utterly lacking in credibility.”

The referee concluded that by failing to review the affidavit before filing it with the

court; by filing a false affidavit with the court to demonstrate timely personal service on

P.R.—despite knowing that P.R. had not been personally served; by providing incorrect

guidance to A.K. on how to accomplish personal service; and by failing to properly

supervise his staff in their efforts to draft, serve, and file the affidavit, Kaminsky had

6
violated Rules 1.1, 3.3(a)(1), 3.4(c), 4.1, 5.3, and 8.4(d) of the Minnesota Rules of

Professional Conduct.

N.P.Y. Matter

Kaminsky began representing N.P.Y. in April 2016. 2 In July 2019, after N.P.Y.

requested a refund of the retainer fee, Kaminsky met with N.P.Y. and began to work

towards vacating a 50-year harassment restraining order placed against him in 2009. The

matter was scheduled for hearing in October 2019, but had to be continued because

Kaminsky thought he had to serve the protected party by publication. Then, in December

2019, Kaminsky moved to vacate the harassment restraining order, filed N.P.Y.’s affidavit,

and scheduled a hearing for February 2020. He simultaneously filed an affidavit to obtain

an order for publication of service upon the protected party. Kaminsky drafted an order

for publication, and the court issued the order. Kaminsky then arranged service by

publication.

N.P.Y.’s motion was denied, primarily because of improper service. Under the

applicable statute, the protected party had to be personally served not less than 30 days

before the hearing. See Minn. Stat. § 609.748, subd. 5(d) (2022). Instead, Kaminsky

2
The referee made additional, uncontested conclusions about Kaminsky’s
representation of N.P.Y. The referee concluded that by abandoning N.P.Y.’s client file for
more than 3 years and failing to adequately communicate with his client, Kaminsky
violated Rules 1.1, 1.3, 1.4(a)(2)–(3), and 1.4(b) of the Minnesota Rules of Professional
Conduct. The referee further concluded that, by failing to deposit N.P.Y’s advance fee into
trust and including contradictory and conflicting language in the after-the-fact fee
agreement, Kaminsky violated Rules 1.5(b) and (b)(3) and 1.15(a) and (c)(5) of the
Minnesota Rules of Professional Conduct. The referee found that Kaminsky had
previously received discipline for fee agreements that were non-compliant or even
nonexistent.

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attempted service by publication. Given the statute’s directive of personal service, the

referee found that Kaminsky’s erroneous belief that he could effect service by publication

showed his failure to adequately research the issue.

When denying N.P.Y.’s motion to vacate, the district court also explained that the

motion lacked merit. N.P.Y. had to show that he had complied with the harassment

restraining order, that there had been a material change in circumstances, and that he had

taken steps to remedy the underlying conduct that led to its issuance. See id. The district

court found that the record lacked any evidence that N.P.Y. had addressed the issues

underlying his conduct, namely evidence that N.P.Y. had received mental health treatment

or was compliant with medications. The disciplinary record shows that Kaminsky never

asked N.P.Y. about his mental health.

The referee concluded that Kaminsky’s failure to ask N.P.Y. about his mental health

so that it could be factored into the legal strategy to vacate the harassment restraining order

violated Rules 1.1 and 1.3 of the Minnesota Rules of Professional Conduct. The referee

further concluded that his failure to research appropriate service under the statute violated

Rules 1.1 and 8.4(d) of the Minnesota Rules of Professional Conduct.

Based on 174 findings of fact and 11 conclusions of law, the referee recommended

that Kaminsky be indefinitely suspended with no right to petition for reinstatement for a

minimum of 9 months.

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 ANALYSIS

Kaminsky challenges three of the referee’s conclusions of law and the

recommended discipline. We first address the challenged conclusions before determining

the appropriate discipline.

I.

Because Kaminsky ordered a hearing transcript, the referee’s findings of fact and

conclusions of law are not binding. Rule 14(e), Rules on Lawyers Professional

Responsibility. We nevertheless extend “great deference” to the referee’s findings and

conclusions. In re MacDonald, 906 N.W.2d 238, 243 (Minn. 2018). We will uphold the

referee’s factual findings if they have evidentiary support and are not clearly erroneous. 3

In re Stockman, 896 N.W.2d 851, 856 (Minn. 2017). Factual findings are clearly erroneous

if, after viewing the record, this court is “left with the definite and firm conviction that a

mistake has been made.” In re Lyons, 780 N.W.2d 629, 635 (Minn. 2010) (citation

omitted) (internal quotation marks omitted). A referee’s conclusion of law that a rule of

professional conduct has been violated is also reviewed for clear error, but the referee’s

interpretation of the rules is reviewed de novo. In re Butler, 960 N.W.2d 540, 548 (Minn.

2021).

3
In the M.F. matter, Kaminsky disputes findings 76, 78, 81, 87–88, 144–46, 154,
158–59, and 173. In the N.P.Y. matter, Kaminsky disputes findings 109, 160, and 162.
Kaminsky also disputes finding 169. Kaminsky does not make substantive arguments for
why any of the factual findings are clearly erroneous in his principal brief. By failing to
argue the alleged error of these findings, Kaminsky forfeits these challenges. See In re
Igbanugo, 989 N.W.2d 310, 321 (Minn. 2023) (holding that numerous challenges were
forfeited because the attorney did not argue or cite to authority supporting his conclusions).

9
 A.

We begin with the M.F. matter. Kaminsky challenges Conclusion 1—the referee’s

conclusion of law that he violated six of the Minnesota Rules of Professional Conduct in

this matter. Essentially, Kaminsky claims that he did not intend to deceive the district court

about service on P.R. He argues that, though A.K.’s attempted service of P.R. was not

“good,” he believed that P.R. had notice of the custody hearing. Kaminsky further

contends that he reasonably believed P.R. had been served and that any misrepresentations

made to the court were not made with malice. The Director notes that the referee found

that Kaminsky’s testimony about not knowing that the service was improper was not

credible.

The referee concluded that Kaminsky violated rules prohibiting a lawyer from

making knowingly false statements, either to a tribunal or during their representation of a

client. See Minn. R. Prof. Conduct 3.3(a)(1), 4.1. We give “particular deference to a

referee’s determination of credibility.” In re Waite, 782 N.W.2d 820, 824 (Minn. 2010).

The referee found that Kaminsky was not credible in some instances during the hearing,

particularly related to whether he knew P.R. had been personally served in compliance with

the district court’s order. The referee specifically cited to Kaminsky’s claim that he

honestly believed P.R. had been served, which was followed by his admission that, though

he had not correctly served P.R., he did not attempt to defraud anyone. Kaminsky also

claimed that he did not know in 2018 that personal service was not made and that the

service address was incorrect, but the referee explained that the “inescapable conclusion”

is that Kaminsky had to have known that information in 2018 after speaking to A.K. on the

10
phone. The referee did not clearly err by rejecting Kaminsky’s testimony and concluding

that he knowingly made false statements.

We are particularly concerned about the context in which Kaminsky’s violation of

Rule 5.3 occurred. Rule 5.3 requires a lawyer in a managerial or supervisory capacity to

make reasonable efforts to ensure a nonlawyer’s conduct complies with the lawyer’s

professional obligations and holds a lawyer responsible for a nonlawyer’s conduct that is

ordered by the lawyer. Minn. R. Prof. Conduct 5.3(b)–(c). The referee found that

Kaminsky violated this rule by “providing A.K. with incorrect guidance on how to

accomplish personal service, and failing to properly supervise his staff in their efforts to

draft, serve and file the affidavit.”

In every case, proper service is essential. But proper service was especially crucial

here, in a family law case involving the custody of children, following an ex parte order,

and with one parent hospitalized. See generally Minn. Gen. R. Prac. 303.04(e) (detailing

the obligations on a party seeking emergency relief to ensure that personal service is made

unless specific written statements are made about unsuccessful good faith efforts to contact

the other party or counsel, or the supporting documents show good cause to excuse rule

compliance and the court waives the notice requirement). The district court ordered a clear

directive about personal service of P.R. before the expedited hearing could occur, and

Kaminsky testified to having reviewed that order. Kaminsky contends that he did not

commit misconduct because he likely did not review the affidavit of service before it was

filed by his staff. The more fundamental problem, however, is that Kaminsky allowed the

affidavit to be filed in the first place. Whatever its contents, Kaminsky knew from his

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phone call with A.K. and based on his own instructions to leave the paperwork on the

doorstep, that personal service had not been completed on P.R. as was represented by filing

the affidavit. We hold, therefore, that Conclusion 1 is not clearly erroneous.

B.

We next turn to the N.P.Y. matter. Kaminsky first takes issue with Conclusion 5.

In that conclusion of law, the referee determined that he provided incompetent

representation, in violation of Minnesota Rule of Professional Conduct 1.1, and lacked

diligence, in violation of Minnesota Rule of Professional Conduct 1.3, by not inquiring

about N.P.Y.’s mental health during the 4-year representation and failing to factor his

mental health into the motion to vacate the harassment restraining order.

Kaminsky argues that the referee mischaracterized the order denying N.P.Y.’s

motion to vacate the harassment restraining order. According to Kaminsky, even if he had

presented evidence of N.P.Y.’s improved mental health, the motion would have been

denied because of the severity of N.P.Y.’s conduct leading to the initial harassment

restraining order. Further, Kaminsky claims that not asking N.P.Y. about his mental health

was a legal strategy and that, as the lawyer, he could reasonably choose how to accomplish

his client’s objective. The Director counters that based on the skill and knowledge that

Rules 1.1 and 1.3 require a lawyer to have, Kaminsky needed to be aware of and prove

material changes to N.P.Y.’s mental health.

We agree with the Director. To vacate the harassment restraining order, the statute

requires evidence of a material change in the circumstances that led to the order. Minn.

Stat. § 609.748, subd. 5(d). Here, those circumstances were mental health issues. As a

12
result, a reasonably diligent and competent lawyer would investigate facts about the client’s

mental health and whether any material changes have occurred and present that evidence

to a court. The record shows, however, that Kaminsky made no investigation into any

material change in N.P.Y.’s mental health; in fact, he does not challenge the referee’s

finding of fact on this point.

Next, Kaminsky challenges Conclusion 6. In that conclusion of law, the referee

determined that Kaminsky provided incompetent representation, in violation of Minnesota

Rule of Professional Conduct 1.1, and engaged in conduct prejudicial to the administration

of justice, in violation of Minnesota Rule of Professional Conduct 8.4(d), by attempting

service by publication when the relevant statute dictated personal service.

Kaminsky maintains that the proficiency required by Rule 1.1 is that of a general

practitioner; he asserts that a general practitioner should be able to reasonably rely on a

court order authorizing service by publication without threat of disciplinary action. The

Director frames the issue as one more fundamental than Kaminsky describes, explaining

that Kaminsky violated the rules, not by relying on an erroneous order, but by failing in his

legal duty to research whether service by publication was proper.

The Director has the better argument. By not researching the statutorily required

means of service in N.P.Y.’s case and then drafting an erroneous proposed order that was

later issued by the court, Kaminsky acted incompetently and prejudiced the administration

of justice.

Finally, Kaminsky contends that, because the Director does not allege deceit or

misrepresentation in this instance, he could not have violated Rules 1.1, 1.3, or 8.4(d). That

13
argument, however, is inconsistent with the plain language of these rules and our caselaw.

See Minn. R. Prof. Conduct 1.1 (“A lawyer shall provide competent representation to a

client.”); see Minn. R. Prof. Conduct 1.3 (“A lawyer shall act with reasonable diligence

and promptness in representing a client.”); see Minn. R. Prof. Conduct 8.4(d) (“It is

professional misconduct for a lawyer to . . . engage in conduct that is prejudicial to the

administration of justice”); see also In re Kennedy, 864 N.W.2d 342, 347 (Minn. 2015)

(stating that Minn. R. Prof. Conduct 8.4(d) does not have an intent requirement). For these

reasons, we hold that Conclusions of Law 5 and 6 are not clearly erroneous.

II.

We turn now to the appropriate discipline. We give “great weight” to the referee’s

recommendation, but we are responsible to determine the appropriate sanction. In re

Greenman, 860 N.W.2d 368, 376 (Minn. 2015) (citation omitted) (internal quotation marks

omitted). 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).

When deciding the appropriate discipline, we examine four factors: (1) the nature

of the misconduct; (2) the cumulative weight of the disciplinary violations; (3) the harm to

the public; and (4) the harm to the legal profession. Id. at 540. We also consider

aggravating and mitigating factors. Id. And finally, although we consider similar cases,

the discipline is tailored to the specific facts of each case. Id.

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 Kaminsky did not provide any analysis under this framework. Instead, Kaminsky

asks that any discipline be stayed conditioned on his agreement not to accept new clients

and to retire within 1 year of our order. He also contends that the referee’s recommendation

is excessively punitive because he did not intend to deceive or mislead the court in the M.F.

matter and because his impending retirement is a mitigating factor. The Director agrees

with the referee’s recommendation, considering it appropriate to protect the public and to

deter similar conduct; she also urges this court to not consider Kaminsky’s new decision

to retire a mitigating factor.

A.

First, we consider the nature of Kaminsky’s misconduct. Kaminsky’s misconduct

is serious and includes giving inaccurate instructions to a nonlawyer concerning personal

service of an adverse party, filing an affidavit he knew to be false, and failing to

subsequently correct the affidavit or notify the court that personal service had not been

completed. 4 Dishonesty in statements to a tribunal is particularly serious. In re Nwaneri,

896 N.W.2d 518, 525 (Minn. 2017). Kaminsky also abandoned N.P.Y.’s matter for more

than 3 years, and when he finally began working on it, he lacked diligence and provided

incompetent representation. See In re Capistrant, 905 N.W.2d 617, 620–21 (Minn. 2018)

4
In total, concerning Kaminsky’s representation of all three clients, the referee found
that Kaminsky failed to review and filed a false affidavit, incorrectly supervised staff,
neglected a client file, failed to adequately communicate with a client, included
impermissible language in a noncompliant fee agreement, provided incompetent
representation, failed to timely return client documents, failed to document a cash payment
with a countersigned receipt, failed to deposit two clients’ advance flat fees into trust absent
a compliant fee agreement, and violated the terms of his probation by continuing a pattern
of misconduct.

15
(finding that failing to work on a client matter and to communicate with a client is client

neglect and independently warrants discipline).

B.

Next, we consider the cumulative weight of Kaminsky’s disciplinary violations. We

distinguish “a brief lapse in 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 omitted) (internal quotation marks omitted).

Kaminsky’s misconduct was not limited to a “single, isolated incident.” Rather,

Kaminsky’s misconduct affected 3 clients for more than 5 years, leading to more than

25 separate violations of 16 rules of the Minnesota Rules of Professional Conduct.

C.

We next consider the harm Kaminsky caused the public. Majors, 973 N.W.2d 621,

629 (Minn. 2022). This factor includes consideration of the number of clients harmed and

the extent of that harm. In re Coleman, 793 N.W.2d 296, 308 (Minn. 2011).

Kaminsky directly harmed an adverse party, P.R., and a client, N.P.Y. Kaminsky’s

misconduct—filing the false affidavit and not providing P.R. notice of the emergency

hearing—led the court to hold the hearing and revoke physical custody of her children

without notice and an opportunity to be heard. We agree with the referee’s finding that the

lack of timely notice resulted in a “significant impairment to [P.R.’s] fundamental right to

parent her children for over two years,” and there is “nothing P.R. can do to have those two

years restored.” The referee found that Kaminsky harmed not only P.R. but her sons and

other members of the immediate family, and that harm “cannot be quantified or reversed.”

16
 Kaminsky harmed his client, N.P.Y., by neglecting his matter for over 3 years.

N.P.Y. was further harmed when Kaminsky began to work on his case but failed to conform

his legal strategy to what was required under the statute. Kaminsky’s representation of

N.P.Y. wasted his client’s opportunity to vacate the 50-year harassment restraining order

against him. And N.P.Y.’s ability to obtain substitute counsel was impaired by the lost

value of his $2,500 advance fee payment from 2016 through 2020, when Kaminsky failed

to diligently work on his case.

D.

Next, we consider whether an attorney’s misconduct “reflects poorly on the entire

legal profession and erodes the public’s confidence in lawyers.” In re Udeani, 945 N.W.2d

389, 398 (Minn. 2020) (citation omitted) (internal quotation marks omitted). Kaminsky

made false statements to a court in his handling of the M.F. matter and was neglectful and

incompetent in the N.P.Y. matter. Making false statements to a court harms the legal

profession. In re Sea, 932 N.W.2d 28, 36 (Minn. 2019). Neglectful and incompetent acts

also hurt public confidence in the legal profession. In re Swanson, 967 N.W.2d 644, 655

(Minn. 2021). As the referee aptly explained, “the integrity of the judicial system hinges

on the reliability of process and lawyers’ candor to the court.”

E.

To determine appropriate discipline, we also examine any aggravating and

mitigating factors. In re Quinn, 946 N.W.2d 583, 592 (Minn. 2020). The referee found

that Kaminsky’s misconduct involved five aggravating factors and no mitigating factors.

We adopt three of the aggravating factors and do not find any mitigating factors.

17
 First, the referee correctly found that Kaminsky was on disciplinary probation when

he committed some of the misconduct. See In re McCloud, 955 N.W.2d 270, 279 (Minn.

2021) (stating that committing misconduct while on probation is an aggravating factor).

Kaminsky was on probation beginning on February 13, 2020. While on probation,

Kaminsky failed to inform and update the court of the issue of personal service in the M.F.

matter and failed to return N.P.Y.’s health records.

Second, the referee found that Kaminsky’s disciplinary history is an aggravating

factor. Disciplinary history is an aggravating factor because “after being disciplined, an

attorney is expected to show a renewed commitment to ethical behavior.” In re Coleman,

793 N.W.2d at 308 (citation omitted) (internal quotation marks omitted). Kaminsky has

been disciplined 14 times since 1979. And we give greater weight to this aggravating factor

because Kaminsky’s prior discipline includes many of the same violations he committed

here. See In re Moore, 692 N.W.2d 446, 450 (Minn. 2005) (“We have imposed more

severe sanctions when the current misconduct is similar to misconduct for which the

attorney has already been disciplined.”).

Third, the referee appropriately found that Kaminsky’s experience practicing law is

an aggravating factor. See In re Tigue, 900 N.W.2d 424, 432 (Minn. 2017) (stating that

substantial experience practicing law is an aggravating factor). Kaminsky has been

practicing law for over 50 years, which is extensive experience in the practice of law. See

In re Ulanowski, 800 N.W.2d 785, 802 (Minn. 2011) (finding that 6 years after admission

and 2 years of full-time practice at the time of an attorney’s first act of misconduct was an

aggravating factor).

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 Fourth, the referee found that Kaminsky lacked remorse. See Greenman,

860 N.W.2d at 378 (stating that failing to exhibit remorse is an aggravating factor).

Kaminsky purports to challenge several findings of fact related to his remorse but does not

articulate arguments or cite authorities for why the findings are clearly erroneous in his

principal briefing before this court. These challenges are forfeited. See Igbanugo,

989 N.W.2d at 321. But even had the findings been properly challenged, we need not reach

the question of Kaminsky’s lack of remorse because the existence of this aggravating

factor, when three other aggravating factors are present, would not change the discipline

we impose. 5

Lastly, there are no mitigating factors. Kaminsky argues that his impending

retirement is a mitigating factor. 6 He did not argue for this mitigating factor before the

referee. A lawyer must ask a referee to find a mitigating factor, however, and cannot raise

5
The referee further found as a fifth aggravating factor that Kaminsky failed to show
that he will avoid committing similar misconduct in the future. We have not previously
recognized this factor as an aggravating factor. We have only analyzed this factor in cases
of attorney discipline when an attorney tries to prove that an adjustment disorder is a
mitigating factor. See, e.g., Albrecht, 779 N.W.2d at 535 (listing five factors to establish
an adjustment disorder, including “that the misconduct is not likely to recur”). Because we
conclude that a 9-month suspension is appropriate even in the absence of this aggravating
factor, and because the parties did not specifically brief the circumstances under which we
should consider this circumstance to be an aggravating factor, we express no opinion on
whether failing to show that similar misconduct will be avoided in the future may be an
aggravating factor.
6
We have not previously recognized a lawyer’s plan to retire as a mitigating factor,
and we express no opinion on whether a plan to retire could be a mitigating factor.

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the issue for the first time before us. See In re Tayari-Garrett, 866 N.W.2d 513, 520 (Minn.

2015); see also In re Tigue, 843 N.W.2d 583, 588 (Minn. 2014).

F.

Kaminsky argues that the recommended discipline is punitive, and that any

discipline should be stayed because of his impending retirement. Kaminsky cites two cases

in which we imposed a stayed suspension. Neither case, however, involves acts of

misconduct committed while the lawyer was on probation for similar misconduct, and one

of the cases involved reciprocal discipline. See In re Meyer, 601 N.W.2d 706, 706–07

(Minn. 1999) (order); see also In re Leroi, 869 N.W.2d 671, 672 (Minn. 2014) (order).

Although we have occasionally imposed a stayed suspension in a non-reciprocal discipline

case, a stayed suspension is not appropriate here.

The Director supports the referee’s recommendation of an indefinite suspension

with no right to petition for reinstatement for 9 months. The Director cites two cases to

show this discipline is consistent with prior cases. See In re Letourneau, 792 N.W.2d 444,

447, 453 (Minn. 2011) (imposing indefinite suspension with right to petition for

reinstatement after 1 year due to client neglect, failure to communicate, and failure to

cooperate with investigation); see also In re Swanson, 967 N.W.2d at 654–56 (imposing

indefinite suspension with no right to petition for reinstatement for 6 months for

misconduct including repeated instances of client neglect and incompetent representation

when four aggravating factors applied).

The Director also compares this case with In re Nelson, 733 N.W.2d 458 (Minn.

2007). Nelson had been privately disciplined nine times, his misconduct impacted two

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clients, and, like Kaminsky’s misconduct, his misconduct included failing to act diligently,

knowingly making false statements (albeit to a client, rather than the tribunal), failing to

place client funds in trust, and engaging in conduct that was prejudicial to the

administration of justice. Id. at 460–63. The referee found multiple aggravating factors

and no mitigating factors. Id. at 465. Nelson was indefinitely suspended with no right to

petition for reinstatement for 6 months. Id.

Nelson and Kaminsky’s cases are distinguishable; these distinctions, however,

support greater discipline for Kaminsky. Kaminsky’s misconduct involved more client

matters than Nelson’s case, and Kaminsky’s disciplinary history is more extensive than

Nelson’s history. Nelson was admonished six times and had three private probations, id.

at 461; in addition to nine admonitions and two private probations, Kaminsky has been

suspended twice. And unlike Nelson, Kaminsky committed some of the misconduct while

on disciplinary probation.

Our case law shows that similar misconduct has received variable discipline and the

referee’s recommendation fits comfortably within that range. See, e.g., In re Nielsen,

864 N.W.2d 627, 628 (Minn. 2015) (order) (indefinitely suspending attorney for 4 months

for neglecting multiple client matters, failing to communicate with multiple clients,

dishonest conduct with clients, and making a false statement to a tribunal; several issues of

mitigation were raised and no aggravating factors were referenced); see, e.g., In re

Albrecht, 779 N.W.2d at 543 (indefinitely suspending attorney for 2 years for neglecting

client matter, incompetent representation, advising client to act contrary to order, and

conduct prejudicial to administration of justice; multiple aggravating factors, including

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over ten disciplinary actions, and no mitigating factors); see generally In re Nwaneri,

978 N.W.2d 878, 892 (Minn. 2022) (giving “substantial weight” to a referee’s

recommendation that is “in line with the broad range of discipline we have imposed in prior

cases”).

In consideration of the unique circumstances of this case, we conclude that the

appropriate discipline is a suspension for 9 months.

Accordingly, we order that:

1. Respondent Joseph Kaminsky is suspended from the practice of law,

effective 14 days from the date of this opinion, with no right to petition for reinstatement

for 9 months.

2. Respondent may petition for reinstatement pursuant to Rule 18(a)–(d) of the

Rules on Lawyers Professional Responsibility. 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) of the Rules on Lawyers Professional Responsibility; see Rule 4.A.(5) of the Rules

for Admission to the Bar (requiring evidence that an applicant has successfully passed the

Multistate Professional Responsibility Examination), and satisfaction of continuing legal

education requirements, see Rule 18(e)(4) of the of the Rules on Lawyers Professional

Responsibility.

3. Respondent shall comply with Rule 26 of the of the Rules on Lawyers

Professional Responsibility (requiring notice of suspension to clients, opposing counsel,

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and tribunals), and shall pay $900 in costs pursuant to Rule 24 of the Rules on Lawyers

Professional Responsibility.

Suspended.

PROCACCINI, J., not having been a member of this court at the time of

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

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