a? FILE NO. AIS-1282 May 8, 2017 STATE OF MINNESOTA Mmmre ?mva IN SUPREME COURT In Re Petition for Disciplinary Action against MICHELLE LOWNEY a Minnesota Attorney, Registration No. 0182370. BRIEF OF THE DIRECTOR OF THE OFFICE OF LAWYERS PROFESSIONAL RESPONSIBILITY PAUL C. Attorney 0. 0134685 200 South Sixth Street Suite 420 Minneapolis, MN 55402 (612) 335?3700 ATTORNEY FOR RESPONDENT SUSAN M. HUMISTON DIRECTOR Attorney No. 0254289 OFFICE OF LAWYERS PROFESSIONAL RESPONSIBILITY 1500 Landmark Towers 345 St. Peter Street St. Paul, MN 55102-1218 (651) 296?3952 TABLE OF CONTENTS Page Table of Authorities 2 Legal Issues 4 Statement of the Case 6 Statement of Facts 6 Argument 17 A. The Record Fully Supports the Referee?s Findings and Conclusions of Serious Misconduct. 17 1. The Referee Correctly Found that Respondent?s Own Actions Caused Her Arrest and Detainment, and Related Abandonment of Her Client During Trial 18 2. The Referee ApprOpriately Rejected Respondent?s Subjective Good Faith First Amendment Argument as it Misstates Applicable Law 20 3. Respondent Knowingly Violated Court Orders and Rules in Both Proceedings in Violation of Rules 3.4(c) and MRPC, and Engaged in Disruptive Behavior in Violation of Rule MRPC 26 B. Respondent?s Serious Misconduct Warrants Suspension 30 1. The Nature of Respondent?s Misconduct is Serious 31 2. The Cumulative Weight of Respondent?s Misconduct is Substantial 32 3. Respondent?s Misconduct Caused Harm to the Public and the Legal Profession 33 4. The Referee Correctly Found Several Aggravating Factors and No Mitigating Factors 34 . COHCILISIOII 36 TABLE OF AUTHORITIES P_age_ Rules on Lawyers Professional Responsibility: Rule 14(e) 6, 17 Minnesota Rules of Professional Conduct: Rule 1.1 5 Rule 3.1 5, 24, 26 Rule 3.4(e) 5, 26, 27 Rule 3.5(h) 5, 26, 29, 30 Rule 4.4(a) 5,26 Rule 8.2 25 Rule 8.2(Rule 8.4(d) 5, 26, 29, 30, 33 Minnesota Rules of General Practice: Rule 4.01 26, 27, 28 Minnesota Cases: In re Aitken, 787 152 (Minn. 2010) 5, 17, 35 In re Albrecht, 779 530 (Minn. 2010) 17, 31 In re Anderley, 481 366 (Minn. 1992) 17 In re Charges of Unprofessional Conduct Involving File No. 17139, 720 807 (Minn. 2006) 26 In re Coleman, 670 330 (Minn. 2004) 32 In re Fett, 790 840 (Minn. 2010) 35 Page In re Getty, 452 694 (Minn. 1990) 34 In re Graham, 453 313 (Minn. 1990Grigsby, 815 836 (Minn. 2012) 31 In re Lundeen, 811 602 (Minn. 2012) 30 In re Miera, 426 850 (Minn. 1988) 25 In re Murrin, 821 195 (Minn. 2012) 32 In re Nathan, 671 578 (Minn. 2003Nett, 839 716 (Minn. 2013) 31 In re Oberhauser, 679 153 (Minn. 2004) 32, 35 In re O?Brien, Court File No. A15u2042 (Minn. May 3, 2017) (not yet published) 34 In re 561 507 (Minn. 1997) 31 In re 614 .W.2d 209 (Minn. 2000) 17 In re Torgerson, 870 602 (Minn. 2015Ulanowski, 800 785 (Minn. 2011) 33, 34 Other Turisdictions: Gentile v. State Bar of Nevada, 501 US. 1030 (1991) 22 In re Hafen, Case No. 72453 (Nev. 2017) (unpublished) 19 Standing Committee Yngman, 55 F.2d 1430 (9th Cir. 1995) 22, 23 A. LEGAL ISSUES Are the referee?s findings of fact and conclusions of law, finding and concluding that respondent did not competently represent a client, (ii) pursued flawed subpoenas and meritless claims, knowingly violated court rules and orders, (iv) engaged in conduct intended to disrupt and that did disrupt court proceedings in two matters, and made false statements about the integrity of a judge with reckless disregard for the truth or falsity of the statements, all in violation of the Minnesota Rules of Professional Conduct (MRPC), clearly erroneous? The referee found and concluded that respondent: Failed to competently represent her client when she allowed herself to be arrested during trial and failed to perfect her client?s appeal, Pursued flawed subpoenas against her client?s former counsel for which she was sanctioned, Pursued false and meritless litigation against a judge, Knowingly violated court rules and orders in two proceedings by taking pictures during a trial, and failing to comply with pretrial requirements in a second proceeding, Engaged in conduct that was disruptive in two proceedings, including continually interrupting the court in both cases, and getting herself arrested and detained in one proceeding, and Made false statements in multiple forums about the integrity of a judge with reckless disregard for the truth or falsity of the statements, by accusing the judge of, among other things, retaliating against her and her client and acting with malice, compromising MNCIS, usurping case files in concert with opposing counsel, signing documents known to be false, and using others to gather evidence the judge knew was false. The Director requests the Court adopt these findings and conclusions as they are amply supported in the record. Apposite Cases: In re Torgerson, 870 602 (Minn. 2015). In re Aitken, 787 152 (Minn. 2010). B. What is the appropriate discipline for an attorney who causes herself to be arrested and then abandons her client during trial, pursues flawed subpoenas and rneritless litigation, knowingly violates court rules and orders, engages in conduct that is intended to be and is disruptive of two proceedings and, perhaps most significantly, makes multiple false statements regarding a judge?s impartiality with reckless disregard for the truth or falsity of the statements, in violation of Rules 1.1, 3.1, 8.2(a) and The referee recommended respondent be suspended for sixty days followed by a two?year period of probation, with probation to include a requirement of a mental health assessment and compliance with the recommended mental health treatment, if any. The referee described this discipline as ?minimal? in light of respondent?s conduct. The referee stated, however, that this discipline did not include consideration of several rule violations relating to respondent?s proven lack of competency in failing to perfect her client?s appeal, improper subpoenas and failure to follow court orders. While the recommended discipline may be minimally appropriate, because the referee accorded insufficient weight to several rule Violations, the Director believes a longer period of suspension is more in line with the purposes of lawyer discipline. Accordingly, the Director requests that this Court suspend respondent for a minimum of ninety days followed by a two?year period of probation, with a mental health assessment. Apposite Cases: In re Torgerson, s70 602 (Minn. 2015). In re Nathan, 671 .W.2d 578 (Minn. 2003). In re Graham, 453 313 (Minn. 1990). STATEMENT OF THE CASE Pursuant to a Lawyers Professional Responsibility Board Panel?s determination that probable cause for public discipline is warranted, and its instruction to file a petition for disciplinary action, the Director of the Office of Lawyers Professional Responsibility filed a petition for disciplinary action with the Court on August 9, 2016. A two?day hearing on the Director?s petition was held November 15-16, 2016, before the Honorable Heather L. Sweetland, the referee appointed by the Court. On January 3, 2017, the referee submitted her findings of fact, conclusions of law and recommendation for discipline (A. Respondent timely ordered a transcript of the proceedings. Accordingly, the referee?s findings and conclusions are not conclusive. Rule 14(e), Rules on Lawyers Professional Responsibility (RLPR). STATEMENT OF FACTS This case involves multiple rule violations in the course of two representations. Respondent Michelle Lowney MacDonald, legal name Michelle 1 Citations to the addendum are to the addendum to respondent?s brief. Neither the pages of respondent?s addendum, nor the pages of the referee?s findings of fact, conclusions of law, recommendation for discipline and memorandum are separately paginated. In order to cite to the addendum as required by Rule the Director numbered the addendum beginning with page 1 for the first page of the referee?s decision. It is to those page numbers to Which the Director refers. See Minn. R. Civ. App. P. 128.03(a) (2017). 6 Lowney MacDonald Shimota, was admitted to practice law in Minnesota on September 11, 1987 (A. 2, 16). Respondent primarily practices in the area of family law (A. 2). A. Grazzini-Rucki Matter. Respondent first met Sandra Grazzini?Rucki on January 1, 2013, when Ms. Grazzini?Rucki attended a social event at respondent?s non?profit called Family Innocence (A. 2). At that time, Ms. Grazzini?Rucki was the petitioner in a dissolution proceeding that had been pending since 2011 in Dakota County before the Honorable David Knutson (A. 1, 2). Ms. Grazzini-Rucki had been represented by several prior attorneys before meeting respondent, the most recent of whom had withdrawn in November 2012 (A. 3). At their meeting, Ms. Grazzini-Rucki told respondent a story about being evicted from her home in September 2012, and not being allowed to have contact with any of her five children by order of the court (A. 3). Respondent reviewed the court file at the courthouse over a period of three days, and after again meeting with Ms. Grazzini-Rucki, agreed to represent Ms. Grazzini-Rucki in a constitutional challenge to Minnesota?s family law statute (A. 3). Respondent believes she has a calling to abolish the Minnesota family court system (A. 4). She believes it is unconstitutionally complex, and that there is no compelling interest for the state to enter into matters best left to families to resolve (A. 4). Upon appearing as counsel in the Grazzini?Rucki matter, respondent filed a motion challenging generally the constitutionality of Chapter 518, as well as asserting a specific constitutional challenge arising from a September 7, 2012, order issued by Judge Knutson (A. 4). The September 7, 2012, order placed temporary custody of the family?s five children with the children?s aunt in the family home (A. 4). Based upon information provided to her?by Ms. Grazzini?Rucki, and upon her own review of the file, respondent believed the September 2012 order was the result of an ex parte communication between Judge Knutson and Lisa Elliott, David Rucki?s attorney (A. 4). Respondent believed Judge Knutson signed the order presented to him by Ms. Elliott without reviewing it (A. 4). Respondent did not contact Ms. Elliott for background surrounding the entry of the September order, nor does she recall contacting Ms. Grazzini?Rucki?s former counsel, even though Ms. Grazzini?Rucki was represented by counsel at the time of the order and for two months following the order (A. 4, 5). Neither respondent nor her client requested a copy of prior counsels? files until ten months after respondent was retained in the case (A. 5). Respondent?s understanding of the facts surrounding the entry of the September 2012 order was wrong (A. 5). It is undisputed that the order was entered by mutual agreement of the parties, through counsel, and the guardian ad litem, a few days after Ms. Grazzini-Rucki stated on the record that she did not want custody of her children (A. 5). The proposed order that the court signed was drafted by Ms. own counsel after a telephone hearing on the record with counsel for each party present as well as the guardian ad litem (A. 5). Judge Knutson held oral argument on respondent?s constitutional motion, and issued an order on April 19, 2013 (A. 5; D. Ex. 64). In his order, Judge Knutson addressed in detail why the factual basis for respondent?s asuapplied constitutional challenge, premised on the September 2012 order, was in error, setting forth the actual facts that preceded its entry (A. 6). Judge Knutson denied the motion (D. Ex. 64). Respondent?s client, acting pro se, filed a motion to stay all district court proceedings, as well as a writ of mandamus with the court of appeals (A. 6). 8 Respondent also filed a motion to stay the district court proceedings on her client?s behalf, and confirmed in June 2013 that she was representing Ms. Grazzini-Rucki on all matters, not just the constitutional issues (A. 3, 7). Judge Knutson denied the motion to stay and set the matter for trial on September 11-12, 2013 (A. 7). All appellate efforts to stay the trial were unsuccessful (A. 6, 7). Shortly before trial, respondent subpoenaed her client?s former attorneys to appear at trial based on her belief that she needed the attorneys? testimony to lay a foundation for prior legal bills (A. 8). Before serving the subpoenas, respondent did nothing to determine whether the information could be secured and admitted short of subpoenaing testimony (A. 8). Neither respondent, her client nor anyone in respondent?s office contacted the attorneys to request the billing information, nor did respondent explore alternative measures for introducing the evidence without testimony (A. 8). Respondent did not contact opposing counsel to find out her position on the admission of prior counsels? fees information, nor had respondent made a motion for attorneys? fees (A. 8, 9). Each of Ms. Grazzini?Rucki?s former counsel filed motions to quash the subpoenas, and, given the short notice before trial, an emergency hearing on the motions to quash was set for September 6, 2013 (A. 9). Respondent was late for the hearing and interrupted the court so many times that Iudge Knutson asked the bailiff to step forward to maintain order. When Iudge Knutson explained to respondent that she was being disruptive by continuingly interrupting, respondent replied, ?The rules are that an attorney can?t talk in court?? (A. 9). By order dated September 9, 2013, Judge Knutson quashed the subpoenas on the grounds that respondent failed to take reasonable steps to avoid imposing an undue burden on the subjects of the subpoenas as required by Rule Minnesota Rules of Civil Procedure (A. 10). Judge Knutson ordered that respondent, not her client, pay monetary sanctions in the amount needed to reimburse counsel for the time and expense incurred in moving to quash the subpoenas (A. 10). Respondent challenged the award of sanctions, which was affirmed on appeal by an order in which the court of appeals noted Judge Knutson?s ?modest? monetary sanction, which showed ?restraint? on the part of the court given respondent?s rule violation (A. 10). On September 11, 2013, the first day of the Grazzini?Rucki trial, respondent, on behalf of her client, filed a civil rights lawsuit in federal court against Judge Knutson in his individual, not judicial, capacity (A. 11). The lawsuit, which was not served on Judge Knutson until October 21, 2013, sought $330,499,86132 in compensatory damages (A. 11, 23). Before testimony began, respondent advised Judge Knutson of the amount of damages she was seeking, and moved for his recusal (A. 11). Judge Knutson denied the motion, believing the judicial code required him to put aside his own personal concerns and interest, and proceed With the trial, as he believed he could be impartial and decide the trial on its merits (A. 11). Upon the denial of the recusal motion, respondent questioned the impartiality of Judge Knutson, stating, ?And you are telling me that you can be impartial in this trial which you haven?t done since day one? (A. 11, 12). Respondent presented no evidence of bias on the part of Judge Knutson, let alone bias ?since day one,? other than her and her client?s disagreement with prior orders (A. 12). Because respondent expected Judge Knutson to recuse himself, respondent admitted on the record that she was not prepared to proceed with trial that day, a belief seconded by Judge Knutson and opposing counsel, even though Judge had made clear in June 2013 that it was extremely important to try the case in light of the fact that it had been pending since 2011, and the children had 10 been in the custody of a third party for almost one year (A. 7-8, 12). Respondent called one witness at trial, her client. During the first day of trial, respondent called the proceeding a ?pretend trial,? interrupted cross?examination and argued with opposing counsel during testimony (A. 12). At the end of day one, Judge Knutson continued the trial to the next day, September 12, 2013, at 9:00 am. (A. 13). On September 12, 2013, Judge Knutson took the bench at 9:01 am, and waited for all parties to arrive (A. 13). Respondent approached the court reporter, demanded a transcript from the preceding day and accused the court reporter of not recording the prior day?s testimony accurately (A. 13). Judge Knutson started to go on the record to address the issue but changed his mind because all parties were not present, and there was no bailiff in the courtroom (A. 13). Judge Knutson left the bench at 9:14 am, as disclosed on court security video of the courtroom (A. 13). Respondent then stated, in summary, that if the court reporter was not going to record everything that happened in the courtroom, respondent would do so (A. 13). Respondent began taking pictures of people in the courtroom such as opposing counsel, the opposing party, the clock, and the deputy (A. 13). No one gave respondent permission to take their picture (A. 13). Deputies assigned to the courtroom approached respondent and told her she knew she was not allowed to take pictures in the courtroom (A. 13). The deputy took respondent?s camera. Respondent then took out her cell phone to take photographs. The deputy then took respondent?s cell phone (A. 14). Respondent was upset but her client was able to settle her down (A. 14). Deputies then told Judge Knutson in the hallway outside of the courtroom that they had observed respondent taking pictures in the courtroom (A. 14). When Judge Knutson returned to the courtroom, he advised respondent that she 11 knew there was ?no recording or picture taking or Videoing of any court proceeding in the courtroom? (A. 15). Respondent did not reply that she was free to take pictures when the judge was off the bench, as she argues in this proceeding, but rather argued that the proceedings started at 9:00 am. and were not ?off the record either5). Respondent?s purpose in taking pictures was to gather evidence in support of her lawsuit against Judge Knutson (A. 15). During the morning break, deputies approached respondent, advised her she would be issued a citation for contempt of court based on her actions of taking pictures in the courtroom, and asked her to accompany them so they could fill out the citation (A. 15). Respondent left the courtroom with the deputies, which was recorded on courthouse security cameras (A. 16). Immediately after respondent left with the deputies, Ms. Grazzini~Rucki and another individual started packing up respondent?s trial materials (A. 16). Lisa Elliott, counsel for Mr. Rucki, told the individual with Ms. Grazzini?Rucki that respondent was coming right back and would want her trial materials, but she was ignored (A. 16). Ms. Grazzini-Rucki and respondent?s trial materials were out of the courtroom in under three minutes (A. 16). Respondent was taken to the court holding area where the deputies attempted to fill out a citation for contempt of court (A. 16). Deputies could not complete the citation because respondent refused to give her legal name, date of birth and address (A. 16). Deputies spent 14-15 minutes requesting the information from respondent, and explained to her that if she provided the information, she would be free to return to the courtroom (A. 17). Courthouse video (without audio) confirmed these efforts, as did the testimony offered by deputies in respondent?s criminal matter, and admitted in the disciplinary proceeding (A. 67, D. Ex. 15, time stamp 10:28?10:43; D. Ex. 32). 12 Respondent continued to refuse the deputies? requests for her name, address and birthdate because she felt it was ?ludicrous? that the deputies were requesting the information (A. 17). Because she refused to provide the deputies with the requested information, the deputies cited respondent with the additional charge of misdemeanor obstruction of justice and placed respondent into custody (A. 17). As the court recess came to a close, deputies advised respondent that she needed to return to the courtroom (A. 17). Again, respondent refused to cooperate with the deputies. She refused to stand or walk on her own accord (A. 17). She refused to put her shoes on or take her glasses, despite multiple efforts to get her to do so (A. 18). Deputies were forced to place respondent in a wheelchair to get her back to the courtroom (A. 17?18). She was also handcuffed to a belt (A. 18). All of this was captured by court security video (A. 18). Respondent admits that she did not consider her ethical obligation to competently represent her client, her obligation not to engage in conduct intended to disrupt the tribunal or her obligation not to interfere with the administration of justice when she refused to cooperate with deputies, which caused her to get arrested during her client?s trial (A. 18). Upon returning to the courtroom, deputies explained on the record what occurred, and advised Judge Knutson and respondent that she would be released from custody when she provided her legal name, address and date of birth (A. 18). Judge Knutson asked respondent repeatedly how she wished to proceed (A. 19). Respondent was reminded by the court of her obligation to her client (A. 19). Respondent was asked if she needed to contact anyone to get her trial materials (A. 19). Respondent was advised that the situation was of her own making and it could be remedied, but she did nothing (A. 19). The above information was repeated several times to respondent, all of which was captured 13 on the record (A. 19). Notwithstanding these undisputed facts, respondent testified at her disciplinary hearing that there was ?nothing she could do? to correct the situation (A. 19). The referee found that unwillingness to resolve the contempt of court citation issue disrupted the trial and was aimed at making a record for either appeal, a mistrial and/or to garner information for respondent?s federal lawsuit against Judge Knutson? (A. 19). Respondent participated minimally in the rest of the trial, including brief cross?examination of Mr. Rucki, and repeatedly objected to the proceedings (A. 20). Respondent agreed she did not competently represent her client during the second day of trial but blames that fact on her arrest and not her own conduct (A. 20). Respondent in fact blamed Judge Knutson, opposing counsel and the deputies for the course of events, and took no responsibility herself (A. 20). Judge Knutson issued his findings of fact, conclusions of law and order for judgment and decree on November 25, 2013, awarding custody to Mr. Rucki (A. 20; D. Ex. 64). Respondent attempted to appeal the judgment and the appeal was dismissed because respondent failed to serve the guardian ad litem, who was a party to the proceedings (A. 20). Subsequent requests for reconsideration and further appeals were denied (A. 21). Respondent also challenged her arrest and detention (A. 21). Respondent was in custody for approximately 30 hours (A. 21), a fact not known to Judge Knutson (Tr. at 88).2 The trial court judge assigned to respondent?s misdemeanor case found probable cause for the citations (A. 21, 22). The court also found that although her arrest and detention violated Rule 6, Minnesota Rules of Criminal Procedure, the violation was caused by respondent?s own conduct (A. 22). The 2 Citations to the transcript are to the transcript of the disciplinary hearing which occurred on November 15m16, 2016. 14 misdemeanor citation was dismissed as a result of the subsequent suppression of camera evidence (A. 22). In the federal lawsuit against Judge Knutson, in appeal documents and in numerous letters to the Board on Judicial Standards (BJS) and Ms. Grazzini~Rucki?s former counsel, respondent made several very serious and specific factual allegations against Judge Knutson (A. 23, 24). Specifically, in those multiple forums, respondent alleged Judge Knutson repeatedly retaliated and acted with malice against both Ms. Grazzini?Rucki and herself, compromised MNCIS, usurped case files in concert with opposing counsel, signed documents that Judge Knutson knew were false, used professionals to gather data Judge Knutson knew was false, entered orders without jurisdiction or legal authority, and issued over 3,400 orders (A. 23, 24). When asked for the basis for these allegations, respondent testi?ed that ?the record speaks for itself? (A. 24). When pressed, respondent testified: Judge Knutson?s assignment of cases associated with the Grazzini?Rucki dissolution case was a "usurping? of cases; Judge Knutson?s insistence respondent continue the second day of trial while in a wheelchair was evidence of his retaliation against her for filing the federal lawsuit; Judge Knutson?s holding of the trial despite the disappearance of two children and his decision to quash the subpoenas was evidence he was obstructing evidence of his own wrongdoing; Judge Knutson signing orders allegedly including civil rights violations that he should have noticed was evidence that he signed documents he knew were false; and Judge Knutson did not hold an evidentiary hearing prior to the entry of orders and, therefore, he knew the information contained in the orders was false (A. 2445). Referee Sweetland found that no reasonable attorney would conclude these ?facts? were sufficient evidence to make serious factual allegations 15 questioning the integrity and impartiality of a judge (A. 25). Similarly, Judge Nelson, who dismissed the federal lawsuit against Judge Knutson, found ?nothing in the record supports these allegations? (A. 25). Referee Sweetland found that many of the statements made in the federal lawsuit (as referenced above), which were repeated in numerous forums, were false and made with reckless disregard as to their truth or falsity (A. 26). B. D?Costa Matter. Respondent was hired to represent Mr. D?Costa in February 2014 in a family court matter set for trial June 16-17, 2014. Respondent was Mr. D?Costa?s third attorney. Respondent admitted that she did not comply with the court's pretrial order, including the untimely disclosure of exhibits and failing to submit proposed findings (A. 27). Respondent repeatedly interrupted the referee assigned to conduct the family court trial and the family court referee also found that the trial was needlessly extended by more than five days due to respondent and her client?s ?disorganization, noncompliance with scheduling orders, nonresponsive and argumentative and narrative testimony, and poor trial preparation? (A. 27). The family court referee recommended a $20,000 award of conduct?based attorney?s fees, which was adopted by the trial court (A. 28). Respondent appealed, which appeal was dismissed due in large part to respondent?s failure to properly preserve arguments for appeal (A. 28). The court of appeals held that because the opposing party had to defend against procedurally barred matters on appeal, an award of $16,000 in attorney?s fees on appeal was justified (A. 28). Such an award is significant for anyone but particularly so for Mr. D?Costa, whose gross income was approximately $3,500 (A. 29). Respondent testified that her client was, so, relying on her to handle all procedural aspects of the case (Tr. at 442-443). 16 ARGUMENT A. The Record Fully Supports the Referee?s Findings and Conclusions of Serious Misconduct. Rule 14(e), RLPR, requires that a party ordering a transcript "shall specify in the initial brief to the Court the referee?s findings of fact, conclusions and recommendations that are disputed.? Rule 14(e), RLPR. The only specifically challenged findings referenced in respondent?s brief are Findings 44, 56-70, 72, 102, 106, 107, 133, and 138-139. The challenged conclusions are Conclusions and the recommendation for discipline. The majority of challenged findings center on the facts and circumstances surrounding respondent?s arrest and subsequent detention on day two of the Grazzini~Rucki dissolution trial. Indeed, respondent argues that ?[w]hether a lawyer can be arrested during a trial, and Whether presiding Judge, David Knutson, erred in allowing it to happen, is what this appeal is about.? (R. Br. at 3.) The standard of review of a referee?s findings and conclusions is well-settled. A referee?s findings of fact and conclusions of law will not be reversed unless they are clearly erroneous. In re Stanbury, 614 209, 213 (Minn. 2000). The clearly erroneous standard re?ects the Court?s deference to the finder of fact, who had the opportunity to observe and evaluate the demeanor and credibility of the witnesses. See, In re Anderley, 481 366, 370 (Minn. 1992). The Court applies the same standard to a referee?s conclusions of law applying the facts to the rules, and will affirm those conclusions unless clearly erroneous. In re Aitkerz, 787 152, 158 (Minn. 2010). Unless the Court is ?left with the definite and firm conviction that a mistake has been made,? no clear error will be found. In re Albrecht, 779 530, 535 (Minn. 2010) 17 1. The Referee Correctly Found that Respondent?s Own Actions Caused Her Arrest and Detainment, and Related Abandonment of Her Client During Trial. The circumstances surrounding respondent?s arrest and detainment are well documented in the record. Court security video captured the proceedings in the courtroom, as well as all activity in the courthouse holding area. (D. Exs. 14, 15.) This video, although without audio, demonstrated the sequence of events, and clearly shows multiple deputies with a citation in front of them patiently trying for almost 15 minutes to get respondent to provide the requested information so that the citation could be issued, and everyone could move on with their day. (D. Ex. 15, time stamp 10:28?10:43; A. 67.) This sequence of events was corroborated by the testimony of Lisa Elliott (Tr. 136-139), who testified at respondent?s disciplinary trial, as well as the deputies who attempted to give respondent the citation, who testified at the probable cause hearing in respondent?s criminal case, and Whose transcript testimony was admitted without objection in respondent?s disciplinary trial. (D. Ex. 32 at 28-30.) The trial court judge who handled the criminal matter came to the same conclusion as the referee in this matter, namely, that respondent?s arrest and detention was caused by her own conduct (D. Ex. 39; A. 22). Judge Knutson provided respondent every opportunity to address the citation and proceed with trial. She was advised on the record exactly what she needed to do to address the citation?provide her legal name, address and date of birth?yet she did nothing. (D. Ex. 11 at 45-46.) She was asked multiple times if she needed any accommodation and how she wished to proceed and she chose not to even acknowledge the questions. (Id) She was asked if she needed to contact someone to get her trial materials. (Id. at 46.) Judge Knutson told her that the situation was of her own making and she could remedy it at a moment?s notice, but she did nothing. (Id. at 54-44.) She was reminded by Judge Knutson 18 of her responsibility to her client. (Id. at 46; Tr. at 64?65.) Judge Sweetland?s finding that unwillingness to resolve the contempt of court citation disrupted the trial and was aimed at making a record for either an appeal, a mistrial and/or to gather information for [rJespondent?s federal lawsuit against Judge Knutson? is well-supported in the record (A. 19). ReSpondent admitted during the disciplinary hearing that she did not competently represent her client, Ms. Grazzini?Rucki, during the second day of trial. (Tr. 140141, 302; A. 20.) In fact, it is undisputed that respondent essentially abandoned her client?s case that day. ReSpondent did not cross~examine witnesses except very brie?y, respondent did not object to documentary evidence (except to object to all of the proceedings), and respondent did not even let her client know that the trial was going on without her. (D. Ex. 11; Tr. at 299?300.) Respondent ignores these uncontested facts to simply blame Judge Knutson for not sua sponte doing something he was not asked to do by anyone. (R. Br. at 22-25.) Respondent even attempts to equate the facts of this case to a case from Nevada in which a judge ordered deputies to handcuff a public defender after she allegedly failed to ?be quiet" during a defendant?s sentencing. See I it re Hafen, Case No. 72453 (Nev. 2017) (unpublished). Respondent argues, ?[respondent?s] case features facts far more severe than what happened to [the public defender] in Nevada.? (R. Br. at 24.) Judge Knutson did not know respondent was in handcuffs. (Tr. at 94, 95.) He did not order deputies to do anything that they did, except he gave verbal permission upon their request to review the pictures in the camera. (Tr. at 62.) Judge Knutson afforded respondent every opportunity to address the citation and get back on track. (D. Ex. 11 at 4446.) Respondent never asked Judge Knutson to have the deputies issue the citation without the requested 19 information and/or to release her immediately, even though he asked her several times how she would like to proceed. (D. Ex. 11 at 44-46; Tr. at 63-65.) Judge Knutson testified that ?any desire, any request by [respondent] would have easily been accommodated and met so she could proceed.? (Tr. at 65.) Respondent was in the courtroom in handcuffs, a wheelchair and without her glasses and shoes because she refused to return to the courtroom of her own accord when requested, refused to answer routine questions of law enforcement, and refused to answer Judge Knutson?s questions on how she would like to handle the situation in which she found herself44?46.) The video of the events, the transcript of the proceeding and the testimony of those who witnessed and participated in the events all corroborate that respondent was solely responsible for the situation in which she placed herself. Respondent?s self~serving testimony that there was ?absolutely? nothing she could do in order to correct the situation was appropriately accorded no weight by the referee. (Tr. at 292.) The referee did not clearly err when she concluded that respondent ?failed to competently represent Ms. Grazzini-Rucki during the second day of trial by not asking for accommodation to get her client and file back in the courtroom.? (A. 32, concl. 1.) 2. The Referee Appropriately Rejected Respondent?s Subjective Good Faith First Amendment Argument as it Misstates Applicable Law. Rule MRPC, provides: 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. The standard to determine whether a statement was made ?with reckless disregard as to [its] truth or falsity? is ?an objective one dependent on what the 20 reasonable attorney, considered in light of all of his [her] professional functions, would do in the same or similar circumstances.? In re Graham, 453 313, 322 (Minn. 1990); see also I 11 re Nathan, 671 578, 585 (Minn. 2003) standard for judging statements [under Rule 8.2, is an objective one?). Minnesota, like most states, has rejected a subjective, ?good faith? defense to Rule MRPC, Where the charge, like in this case, rests on the reckless disregard prong of the rule. argument that an attorney feels some ?statements are true is not germane because the standard for judging statements [under Rule is an objective one.? In re Torgerson, 870 602, 609 (Minn. 2015) (quoting In re Nathan). In Graham, the Court explained Why the standard is an objective one: purely subjective standard is inappropriate. The standard applied must re?ect that level of competence, of sense of responsibility to the legal system, of understanding of legal rights and of legal procedures to be used only for legitimate purposes and not to harass or intimidate others, that is essential to the character of an attorney practicing in Minnesota. Graham, 453 at 322. While the first amendment does protect attorneys from many statements critical of the courts (namely those that are true or opinions), that protection is not absolute, nor does it rise to the ?actual malice? standard required in defamation cases against public officials. Id. at 321-322. This Court?s licensure of an attorney is a certification to the public that "implies that the individual admitted to practice law exhibits a sound capacity for judgment.? Id. at 322. Respondent?s arguments that a subjective standard is appropriate based upon the Supreme Court?s decision in Gentile v. State Bar of Nevada, and the Ninth Circuit?s decision in Standing Committee on Discipline Yagman, are misplaced. (R. Br. at 29?38.) Gentile involved attorney discipline under a Nevada ethics rule 21 governing pretrial publicity, which rule specifically prohibited attorneys from making an ?extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication if the lawyer knows or reasonably should know that it will have a substantial likelihood of materially prejudicing an adjudicative proceeding.? Gentile State Bar of Nevada, 501 US. 1030, 1033 (1991). The Court found this rule, particularly as interpreted by the Nevada Supreme Court, to be vague and subject to discriminatory enforcement. Id. at 1051. The Court did not, however, as respondent argues, impose a requirement applicable to all ethics rules that only attorney speech that presents a clear and present danger to the administration of justice can be regulated. (R. Br. at 31.) See Nathan, 671 at 584 (expressly holding ?statements about judges need not constitute clear and present danger to the administration of justice to violate the rules of professional conduct?). Respondent also misstates the holding in Yagman. See Standing Committee on Discipline of the U. 5. District Court for the Central District of California Yagman, 55 F.3d 1430 (9th Cir. 1995). The attorney in Yagman was not disciplined for violation of a local federal district rule prohibiting conduct that ?impugns the integrity of the court? because the court found that the statements in issue (including such "colorful adjectives? as ?buffoon,? "sub-standard human," ?right?wing fanatic?) to be statements of ?rhetorical hyperbole, incapable of being proved true or false." Yagman, 55 F.3d at 1440. Notably, the Ninth Circuit in Yagman approved the district court?s application of an objective, reasonable attorney standard, and read into the overbroad local rule, which simply prohibits statements that ?impugns the integrity of the court,? a requirement that the statements be false statements ?made with either knowledge of their falsity or with reckless disregard for their truth or falsity, judged from the standpoint of a reasonable attorney.? Yagman, 22 55 F.3d at1437. Respondent is simply wrong when she argues the Ninth Circuit rejected a ?reckless disregard" standard in disciplinary proceedings. (R. Br. at 32). Yagmcm is in accord with this Court?s precedent. Torgerson, 870 at 609. Respondent ignores entirely the actual statements about Judge Knutson that respondent made in multiple forums that the referee found to be false and made with reckless disregard for the truth of the matter asserted. Nowhere does respondent cite or discuss the actual statements found by the referee to be false and made with reckless disregard for their truth, that Judge Knutson repeatedly retaliated and acted with malice against both Ms. Grazzini-Rucki and herself, compromised MNCIS, usurped case files in concert with opposing counsel, signed documents that Judge Knutson knew were false, used professionals to gather data Judge Knutson knew was false, and entered orders without jurisdiction or legal authority (A. 23, 24.). These are the statements that the referee found to be false and made with reckless disregard as to their truth or falsity (A. 26). Respondent?s subjective complaints about her perceived unfair treatment during the second day of trial did not form the basis of respondent?s Rule MRPC, violation, but rather the false allegations in the federal lawsuit (made before her arrest and detention), repeated by her in her submissions to the BJS, to the court of appeals, and in letters to former counsel, did (A. 26). Respondent submitted no evidence that any of the statements that formed the basis of this violation were true (A. 23). Judge Nelson, when reviewing the federal lawsuit containing these claims, determined ?nothing in the record supports these allegations? (A. 25). The main basis for respondent?s belief that Judge Knutson was acting unlawfully and unfairly, and the underpinning of her main constitutional 23 arguments, were facts she had wrong (A. 5). It is undisputed that the September 7, 2012, order was not the result of ex parte communications, was not drafted by opposing counsel and signed without review by Judge Knutson and was not entered without an on~the~record hearing (A. 5). Nor can respondent hide behind the fact that she was just relying in good faith on what her client told her when she advanced these arguments. Respondent argues ?she was entitled to believe her client,? and that ?[s]he had no basis to disagree.? (R. Br. at 40.) Lawyers are ethically required to ?inform themselves about the facts of their clients? positions.? Rule 3.1, MRPC, Comment Even assuming respondent?s initial acceptance of Ms. Grazzini~Rucki?s version of events was a sufficient basis to make the original as?applied constitutional challenge based on the September 7, 2012, order, once Judge Knutson issued his April 2013 order detailing the procedural history which was at odds with every fact respondent had argued, subsequent continued reliance is unsupportable (A. 6). Reapondent?s reliance on Maness Myers to suggest an attorney?s good faith reliance can trump all evidence to the contrary is unavailing. Maness v. Myers, 419 U.S. 449 (1975). Maness involved the issue of whether a lawyer could be held in civil contempt when he advised his client to refuse to produce court-ordered materials on the grounds that the client had a Fifth Amendment right not to produce materials that might incriminate his client in another proceeding. Maness, 419 U.S. at 465. The holding of the Court, ?that an advocate is not subject to the penalty of contempt for advising his client, in good faith, to assert the Fifth Amendment privilege against self?incrimination in any proceeding embracing the power to compel testimony? has nothing whatsoever to do With the case at hand. Id. at 468. 24 Respondent also argues that she is being treated unfairly because a different, higher standard has been applied to statements made by judges (R. Br. at 26-29). Respondent relies upon two decisions, one regarding Judge Lange, and the other regarding Judge Miera, to make this argument. The decision cited by respondent regarding Judge Lange is not a decision of this Court but rather the findings and recommendations of a divided panel appointed by this Court to consider a complaint (A. 48). Contrary to respondent?s argument, the panel in Lange applied this Court?s objective, reasonable attorney standard in considering whether Judge Lange violated Rule 8.2, MRPC. That two members of the panel reached the fact?specific conclusion that BJS had not proven by clear and convincing evidence that the statements were knowingly false when made, nor false and made with reckless disregard for the truth, does not help respondent (A. 57?58). In re Mien: did not involve charges of a violation of Rule Miera, 426 850, 856-57 (Minn. 1988). Rather, Judge Miera was charged with violating two judicial canons (Canon 1 and Canon 2)3 for his ?bloodthirsty hypocrites? comment to the media. Id. at 856. This statement of opinion, while not condoned by the court, was found not to violate the general canons. Id. at 857. This conclusion does not assist respondent. Neither case supports the proposition for which it is cited, namely that respondent is being held to a higher 3 Canon 1, Code of Judicial Conduct, provided, ?An independent and honorable judiciary is indispensable in our society. A judge should participate in establishing, maintaining, and enforcing, and should himself observe, high standards of conduct so that the integrity and independence of the judiciary may be preserved. The provisions of this Code should be construed and applied to further that objective." Miem, 426 .W.2d at 851 n.1. Canon 2, Code of Judicial Conduct, provided, judge should reSpect and comply with the law and should conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary." Id. at 851 n.2. 25 standard than judges. The referee correctly utilized the objective, reasonable attorney standard articulated numerous times by this Court in analyzing respondent?sfact-specific statements under Rule MRPC. The referee?s conclusion that respondent?s false statements regarding Judge Knutson violated Rule MRPC, is well?supported in the record and based upon the correct application of the objective, reasonable attorney standard.4 Like the attorney in Graham, respondent used her ?own suspicions as a guide? (colored by her fundamental disagreement With the family court system itself) to make unsupported and false factual statements that simple due diligence, or recognition of undisputed contrary facts, would have caused ?a reasonable lawyer in respondent?s situation [to] have had serious doubts about the truth of respondent?s statements." In re Charges of Unprofessional Conduct Involving File No. 17139, 720 807, 814 (Minn. 2006). 3. Respondent Knowingly Violated Court Orders and Rules in Both Proceedings in Violation of Rules 3.4(c) and MRPC. and Engaged in Disruptive Behavior in Violation of Rule MRPC. The referee concluded that respondent violated Rules 3.4(c) and MRPC, by pursuing subpoenas in the Grazzini?Rucki matter without first complying with the requirements of Rule 45.03, Rules of Civil Procedures,5 taking pictures during day two of the Grazzini~Rucl