Opinion
A23-1480
07-12-2024
In re Petition for Disciplinary Action against Lonny L. Johnson, a Minnesota Attorney, Registration No. 0337158.
ORDER
Margaret H. Chutich, Associate Justice
The Director of the Office of Lawyers Professional Responsibility (Director) has filed a petition for disciplinary action alleging that respondent Lonny L. Johnson has committed professional misconduct warranting public discipline. The facts underlying the first count of the petition are as follows. Respondent was convicted of criminal vehicular operation resulting in bodily harm while having an alcohol concentration of .08 or more within 2 hours of driving under Minnesota Statutes section 609.2113, subdivision 3(4) (2022)-a gross misdemeanor offense. See Minn. R. Prof. Conduct 8.4(b). Respondent received a stay of imposition, and his successful completion of probation will result in a misdemeanor conviction. Respondent was sentenced to 16 days in jail and 14 days of home detention/electronic monitoring or work release and was placed on probation for 3 years, effective March 16, 2023. This sentence means that if respondent is not discharged early from his criminal probation, it will expire on March 16, 2026.
The second count of the petition involves a separate matter. While representing a client in a criminal case, respondent disclosed information not reasonably necessary to support respondent's motion to withdraw from that representation, failed to obtain a receipt countersigned by the payor for a cash payment, and failed to deposit unearned funds into a trust account absent a compliant flat fee agreement. See Minn. R. Prof. Conduct 1.6(a), 1.15(c)(5), and 1.15(h), as interpreted by Appendix 1 thereto.
Respondent and the Director have entered into a stipulation for discipline. In it, respondent waives his procedural rights under Rule 14, Rules on Lawyers Professional Responsibility (RLPR), waives his right to answer, and unconditionally admits the allegations of the petition. The parties recommend that the appropriate discipline is a public reprimand and disciplinary probation until the scheduled expiration date of respondent's criminal probation: March 16, 2026.
We have independently reviewed the file and approve the jointly recommended disposition.
Based upon all the files, records, and proceedings herein, IT IS HEREBY ORDERED THAT:
1. Respondent Lonny L. Johnson is publicly reprimanded.
2. Respondent must pay $900 in costs under Rule 24, RLPR.
3. Respondent is placed on probation until March 16, 2026, subject to the following terms and conditions:
a. Respondent must abide by the Minnesota Rules of Professional Conduct.
b. Respondent must cooperate fully with the Director's Office in its efforts to monitor compliance with this probation. Respondent must promptly respond to the Director's correspondence by its due date. Respondent must provide to the Director a current mailing address and must immediately notify the Director of any change of address. Respondent must cooperate with the Director's investigation of any allegations of unprofessional conduct that may come to the Director's attention. Upon the Director's request, respondent must provide authorization for release of information and documentation to verify compliance with the terms of this probation.
c. Respondent must abide by the terms of probation imposed by Scott County Community Corrections in State v. Johnson, Court File No. 70-CR-22-6864, until he is discharged from that probation. Within 30 days from the filing of this order, respondent must execute a release of information authorizing his probation agent to communicate with the Director's Office.
d. If at any point the terms of criminal probation related to maintaining respondent's sobriety, such as drug testing or Alcoholics Anonymous (AA) attendance, are modified or eliminated, including because respondent has been discharged early from his criminal probation, respondent must notify the Director and comply with any additional terms required by the Director that relate to maintaining respondent's sobriety.
e. Respondent must maintain total abstinence from alcohol and other mood-altering chemicals, except that respondent may use prescription drugs in accordance with the directions of a prescribing physician who is fully advised of respondent's chemical dependency before issuing the prescription(s).
f. If random drug testing is not conducted under the criminal probation, including if respondent is discharged early from his criminal probation, respondent must, at his own expense, no more than four times per month, submit to random urinalysis for drug screening at a facility approved by the Director and must direct the drug screening facility to provide the results of all urinalyses to the Director's Office. Respondent must cooperate with the phone-in program established by the Director for the random test. Any failure to phone-in in accordance with the random test program will be considered the same as receipt of a positive test result. Any positive test result will be grounds for revoking this probation.
g. Respondent must notify the Director of any arrest, charges, or indictment for any criminal offense, in any jurisdiction, within 10 days of the arrest or issuance of the charges/indictment.
h. If at any time during the period of probation, after giving respondent an opportunity to be heard by the Director, the Director concludes that respondent has violated the conditions of the probation or engaged in further misconduct, the Director may file a petition for disciplinary action against the respondent in the Minnesota Supreme Court without the necessity of submitting the matter to a Panel or Panel Chair. Respondent waives the right to such consideration by the Panel or Panel Chair.
HENNESY, 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.
CONCURRENCE & DISSENT
MOORE, III, Justice (concurring in part, dissenting in part).
I respectfully dissent in part from the court's order approving the stipulation for discipline entered into between the Director of the Office of Lawyers Professional Responsibility (Director) and Respondent Lonny L. Johnson, which arose in part from Johnson's violation of Minn. R. Prof. Conduct 8.4(b). Johnson's violation stemmed from a conviction for gross misdemeanor criminal vehicular operation resulting in bodily harm while having an alcohol concentration of .08 or more within 2 hours of driving. See Minn. Stat. § 609.2113, subd. 3(4) (2022). Because I believe that Johnson's conduct warrants more serious discipline than a public reprimand, I would have rejected the stipulation in this case for many of the same reasons articulated in my partial dissent in In re Ask, 991 N.W.2d 266, 269-74 (Minn. 2023) (Moore, III, J., concurring in part, dissenting in part).
I disagree with the court's decision to only publicly reprimand Johnson, but I agree and concur with the remainder of the court's order, including the probation conditions imposed.
"It is professional misconduct for a lawyer to: . . . (b) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects." Minn. R. Prof. Conduct 8.4(b).
The statute under which Johnson was convicted criminalizes causing bodily harm to another "as a result of operating a motor vehicle: . . . while having an alcohol concentration of 0.08 or more, as measured within two hours of the time of driving." Minn. Stat. § 609.2113, subd. 3(4).
Johnson's violation of Rule 8.4(b) arises from similar dangerous criminal behavior as that in Ask-driving while impaired. Unlike in Ask, however, Johnson's impaired driving caused actual bodily harm, as the other driver suffered a fractured sternum. As a result, Johnson pled guilty to causing bodily harm to another while driving a vehicle with an alcohol concentration of .08 or more, resulting in a conviction for gross misdemeanor criminal vehicular operation. Unlike Ask, Johnson was not convicted of a felony and there is no indication in the record of a history of prior convictions for driving while impaired. However, Johnson's misconduct caused physical bodily harm to another, a significant distinction from Ask.
I acknowledged in my dissent in Ask that Minnesota's attorney discipline case law arising from felony impaired driving incidents has failed to adequately address the harm caused by these offenses and has historically imposed less exacting penalties than that of many other states. Id. at 273-74 (collecting cases). Minnesota law is even more sparse in the area of Rule 8.4(b) violations arising from criminal vehicular operation convictions. In particular, there does not appear to be a prior Minnesota attorney discipline case arising from any type of criminal vehicular operation conviction not involving a fatality.However, the few cases outside of Minnesota involving criminal convictions similar to Johnson's and violations of ethics rules analogous to Rule 8.4(b) take a similarly stringent stance and involve suspensions when the attorney has not been incarcerated as a result of the conviction. See, e.g., In re Cairns, No. 34, 2016, 2016 WL 462672, at *2, 4, 6 (Del. Feb. 5, 2016) (suspending an attorney for 21 months for the attorney's misconduct in falling asleep while operating his motor vehicle under the influence of alcohol and striking an oncoming car, causing serious injury to the driver of that car, resulting in a guilty plea to misdemeanor Vehicular Assault Second Degree, in violation of an ethics rule similar to Rule 8.4(b)); cf. In re Kearns, 991 P.2d 824, 825, 827 (Colo. 1999) (addressing "very serious" misconduct arising from the attorney's conviction of vehicular assault for running a stop sign while under the influence of alcohol and striking a motorcyclist who suffered life-threatening injuries, and issuing a "public censure" after factoring in the attorney's 3-year prison sentence and disqualification from practicing law during his incarceration as a mitigating factor).
In one prior disciplinary proceeding predating the adoption of the Minnesota Rules of Professional Conduct that involved a conviction of an attorney for the offense of "death by criminal negligence" arising from a pedestrian being struck by the attorney's car, the court suspended the attorney for six months. In re Swagler, 58 N.W.2d 272, 272 (Minn. 1953). The court's opinion made no reference to alcohol being involved in the incident leading to the fatality.
Johnson received a stay of imposition of sentence and was placed on 3 years of supervised probation, the conditions of which include a chemical use assessment and following all recommendations, no use of alcohol or controlled substances except for prescribed medications, and random screening as determined by Scott County Community Corrections. He was sentenced to 16 days in jail and 14 days of home detention/electronic monitoring or work release, with 4-days credit for time served. Successful completion of probation will result in a misdemeanor conviction.
As I suggested in Ask with respect to felony DWI offenses, I believe that our court should also plant a flag on attorney discipline cases involving criminal vehicular operation offenses with demonstrated harm to the public arising from impairment from alcohol or controlled substances. I continue to assert that our attorney discipline jurisprudence in this area is outdated and does not reflect the need for accountability for these serious offenses. In particular, Johnson's violation of Rule 8.4(b) is arguably more serious than Ask's, notwithstanding the differences in the level of the conviction, because Johnson's underlying conduct caused actual bodily harm to another motorist. Similar to Ask, Johnson's conduct demonstrates an indifference to the law and public safety and undermines the public's confidence in the legal system and the profession at large. Because a suspension would better hold Johnson accountable for his misconduct-and send a message to the public and legal profession that this conduct is not tolerated-I respectfully dissent.
Accountability in the attorney discipline context may take different forms, depending on the circumstances of the case. In the case of rule violations stemming in part from alcohol and controlled substance use, it is important to recognize the unfortunate prevalence of alcoholism in the legal profession. See Ask, 991 N.W.2d at 272 (Moore, III, J., concurring in part, dissenting in part) (citing Patrick R. Krill, Ryan Johnson & Linda Albert, The Prevalence of Substance Use and Other Mental Health Concerns Among American Attorneys, 10 J. Addiction Med. 46, 46 (2016)). One of the findings of a study of substance use among licensed attorneys-funded by the Hazelden Betty Ford Foundation and the American Bar Association Commission on Lawyer Assistance Programs-was that 20.6 percent of respondents met criteria for "hazardous, harmful, and potentially alcohol dependent drinking." Krill et al., supra, at 46, 51. The article noted that "the consequences of attorney impairment . . . [are] profound and far-reaching." Id. At 46. Recognizing that chemical dependency inordinately affects the legal profession, part of protecting the public in cases such as this is encouraging rehabilitation, which occurs when a lawyer seeks necessary treatment to address the illness and prevent future misconduct. In that vein, I agree with the court's requirements that Johnson maintain total abstinence from alcohol and non-prescribed drugs, submit to random chemical testing as directed by the Director's office, and comply with all terms of the probation order in his criminal case.
McKEIG, Justice (concurring in part, dissenting in part).
I join in the concurrence in part and dissent in part of Justice Moore.