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In re McKenna

Supreme Court of Rhode Island

February 27, 2015

In the Matter of Keven A. McKenna

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(DSC-2012-04).

For Petitioner: Marc DeSisto, Esq., Assistant Disciplinary Counsel.

Keven A. McKenna, Esq., Respondent, Pro se.

Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ. Justice Goldberg, concurring in part and dissenting in part.

OPINION

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PER CURIAM.

This attorney disciplinary matter comes before this Court pursuant to a recommendation of the Disciplinary Board of the Rhode Island Supreme Court (board) that the respondent, Keven A. McKenna, be suspended from the practice of law for a period of one year. Article III, Rule 6(d) of the Supreme Court Rules of Disciplinary Procedure for Attorneys provides in pertinent part:

" If the [b]oard determines that a proceeding * * * should be concluded by a public censure, suspension or disbarment, it shall submit its findings and recommendations, together with the entire record, to this Court. This Court shall review the record and enter an appropriate order."

We directed the respondent to appear before this Court at its conference on June 11, 2014, to show cause why he should not be disciplined. Having heard the representations of the respondent and this Court's Disciplinary Counsel, and having reviewed the entire record, we conclude that cause has not been shown and that the imposition of discipline is appropriate. We adopt the recommendation of the board that the respondent be suspended from the practice of law for a period of one year, with said period of suspension to become effective thirty days from the date of this opinion.

I

Procedural History

On November 5, 2012, Chief Disciplinary Counsel brought disciplinary charges against respondent, alleging violations of several of the Supreme Court Rules of Professional Conduct. The petition asserted four counts: count 1 alleged that respondent violated Article V, Rules 3.3, 7.1, 7.5, and 8.4(c) of the Supreme Court Rules of Professional Conduct by engaging in the unauthorized practice of law as a limited liability entity in violation of this Court's order of February 23, 2011; count 2 alleged that respondent violated Rules 3.3 and 8.4(c) by failing to disclose his income to the United States Bankruptcy Court for the District of Rhode Island (Bankruptcy Court), misrepresenting his interest in a receivable to that court, and by engaging in conduct that amounted to a lack of candor, dishonesty, and misrepresentation to the bankruptcy trustee; count 3 alleged that respondent violated Article V, Rule 1.19 of the Supreme Court Rules of Professional Conduct by failing to provide records requested by Assistant Disciplinary Counsel[1] through a subpoena and by failing to keep records as mandated by Rule 1.19; and count 4 alleged that respondent violated Rule 3.3 and Article V, Rule 3.5(d) of the Supreme Court Rules of Professional Conduct by engaging in conduct during proceedings in the Workers' Compensation Court and Bankruptcy Court that demonstrated a lack of candor, as well as an attempt to disrupt those tribunals.

On December 11, 2012, respondent filed an answer to the petition, stating that the " answers to the Petition for Disciplinary Action are hereby set forth in the attached Federal Court Complaint." The federal complaint, brought against Chief Disciplinary Counsel, Assistant Disciplinary Counsel, and the Chair of the board, alleged

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multiple constitutional violations and sought to " temporarily, preliminarily, and permanently restrain" the board from enforcing the provisions of the Rules of Professional Conduct. In the federal complaint, respondent argued that this Court has no authority to regulate " non court room [sic] and non-attorney client activities of R.I. [a]ttorneys * * * ." The United States District Court for the District of Rhode Island (District Court) dismissed the complaint, holding that abstention was required under Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), because the relief respondent sought would require federal interference in an ongoing state judicial proceeding. McKenna v. Gershkoff, 2013 WL 3364368 at *1-*2 (D.R.I. July 3, 2013) (not officially reported).

The respondent also filed numerous motions with the board, seeking to avoid the board's review of this matter by alleging multiple constitutional violations. A three-member panel of the board (the panel) convened and conducted eight hearings on this matter between February 18, 2013 and October 16, 2013. The panel heard testimony from respondent, attorney Kevin Heitke (who, for a time, represented respondent's professional corporation in Bankruptcy Court), Sheila Bentley McKenna (respondent's wife), attorney Thomas Quinn (Chapter 11 trustee in respondent's professional corporation's bankruptcy case), and Daniel Marks (a client of respondent). Numerous exhibits were admitted, including the transcript of the hearings in Workers' Compensation Court that provided the genesis of the proceedings now before this Court.

II

Facts

The following facts are gleaned from the voluminous record of the board's proceedings. In May 2009, respondent was practicing law under the duly licensed entity " Keven A. McKenna, P.C." (the PC). Also in May 2009, an employee of the PC, Sumner Stone, filed a claim for workers' compensation benefits, alleging a work-related injury. Because the PC was unable to provide proof that it carried workers' compensation insurance as required by statute, a pretrial order was entered that ordered it to make weekly compensation payments to Stone. The respondent, on behalf of the PC, refused to make the payments, arguing that this order violated his due process rights. Over the course of several months and a dozen hearings, respondent made multiple motions to dismiss and repeatedly asked the Chief Judge of the Workers' Compensation Court, who was presiding over the hearings, to recuse himself. Each motion was argued, and all of the motions were denied. Despite the denials, respondent continued to press the same arguments at virtually every hearing.

The respondent repeatedly argued that he was being denied his right to a full hearing on the merits; however, the entire course of the proceedings in the Workers' Compensation Court consisted of the disposition of his own motions and of the employee's motions relating to respondent's failure to comply with the pretrial order. After presiding over the numerous hearings, the Chief Judge observed that respondent was " simply using the procedures of this court to delay and harass." Eventually, the Chief Judge dismissed respondent's claim for trial, due to the fact that respondent refused to make payments as required by the pretrial order. Thus, the pretrial order became the court's final order.

While the Workers' Compensation Court transcripts are replete with examples of respondent's apparent contempt for the court and the proceedings as a whole, we

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highlight a few particularly illustrative excerpts:

" [Respondent]: I would like to enter an order on that, that you're denying me a right to a speedy civil trial * * * .
" * * *
" [Respondent]: I will drag this on forever.
" * * *
" [Respondent]: I have filed, and I will file again a motion to recuse you because I'm suing you personally for due process rights, violations, and that is a requirement for you to recuse yourself, assign it to another judge. * * * This is a rump court proceeding. You're aiding and abetting a criminal getting benefits * * * .
" * * *
" [Respondent]: [Stone is] making a mockery of this court, Your Honor, because of your dislike for me. You will not give me a trial. I'm going to ask for a trial on this one, you're not going to give it to me. You're just going to continue this thing on with the hope that you will be generating money.
" * * *
" The Court: Mr. McKenna, are you alleging, first of all, you're not denying that you have not made payments; is that correct? " [Respondent]: I'm not going to answer that question. You're not the prosecutor, Your Honor.
" * * *
" [Respondent]: That's why we don't want judges doing administrative function. [sic] We don't like judges pandering to attorneys and nonprofit corporations like you do with [opposing counsel] * * * ."

During the ninth day of hearings, respondent, while testifying as a witness, refused to admit familiarity with the pretrial order that had been the subject of the previous eight hearings. Opposing counsel then attempted to confirm the address of respondent's house:

" [Opposing Counsel]: Mr. McKenna, where do you live?
" [Respondent]: In a house.
" [Opposing Counsel]: Can you tell me the address of your house?
" [Respondent]: No.
" * * *
" [Respondent]: I don't have a house.
" [Opposing Counsel]: Where, well, you just said you did. You just said - -
" [Respondent]: I did not. I live in a house.
" [Opposing Counsel]: You live in a house. What is the address of that house that you live in?
" [Respondent]: Actually, I don't think it has an address, it has a post-office box.
" [Opposing Counsel]: Does your house, is your house on a street anywhere?
" [Respondent]: No.
" [Opposing Counsel]: It's not? Is it on an avenue?
" [Respondent]: No.
" [Opposing Counsel]: Is it on a court?
" [Respondent]: No.
" [Opposing Counsel]: Well, if I was to come and visit you, how would I get there?
" [Respondent]: You would have to get directions from me." [2]

In December 2009, the Workers' Compensation Court entered an order finding respondent in contempt for his refusal to

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make payments to Stone as required by the pretrial order. The respondent appealed from this order. After temporarily staying the order, this Court declined to hear the appeal and remanded the matter to the Workers' Compensation Court, noting that respondent had not claimed an inability to comply with the order. The respondent next sought a stay of the order from the United States District Court and the Superior Court and, after failing to receive the stay, he filed a motion with the Workers' Compensation Court claiming an inability to meet the payment obligations " due to circumstances beyond his control, including but limited [sic] to a priority U.S. I. R.S. [sic] [levy] of [$]171,000 upon his bank account."

On January 25, 2010, the day before the hearing on his motion in the Workers' Compensation Court, respondent filed a Chapter 11 bankruptcy petition on behalf of the PC and then presented that filing to the court during the hearing on his motion, arguing that it automatically stayed any action by the Workers' Compensation Court. The Chief Judge noted that respondent was also named personally in Stone's claim, and he set a hearing for that same afternoon on the issue of whether the bankruptcy stay applied to respondent personally. During the break, respondent filed a petition for personal bankruptcy.

Subsequent to the appointment of a Chapter 11 trustee for the PC, respondent applied to this Court for a license to practice law as a limited liability company under the name " The Law Offices of Keven A. McKenna, LLC" (the LLC). On February 23, 2011, because respondent had " made no provision for the transfer of any client files to any other entity, nor ha[d] the PC withdrawn its appearance in any pending cases," this Court entered an order directing respondent to satisfy the Court that the PC would no longer engage in the practice of law. We stated that, until that time, respondent " may continue to practice law in his individual capacity only and not in any corporate form." On March 24, 2011, respondent withdrew his application for a license to practice law as an LLC.

Notwithstanding this Court's order, respondent continued to use a bank account in the name of " Law Offices of Keven A. McKenna, LLC." [3] He deposited checks made payable to the LLC, as well as other checks, and he wrote checks for expenses directly related to the practice of law, including the Supreme Court attorney registration fee, Rhode Island Bar Association dues, and court filing fees. These actions form the basis for count 1, alleging respondent's violation of Rules 3.3, 7.1, 7.5, and 8.4(c)[4] by engaging in the unauthorized

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practice of law as a limited liability entity in violation of this Court's order.

During the bankruptcy proceedings for the PC, an issue arose regarding legal services that respondent had provided to the Estate of Amelia Carmone for a number of years prior to filing the bankruptcy petition. Despite having accrued a sizable amount of unpaid fees for legal services provided to this client (hereinafter known as the " Wells receivable" [5] ), respondent failed to report the existence of this receivable on his initial corporate bankruptcy filing. The respondent filed the required Schedule B disclosure of assets on January 25, 2010, and amended it on May 3, 2010; on neither occasion did he list the Wells receivable. In March 2011, respondent disclosed to the bankruptcy trustee that the Wells receivable amounted to $63,000 and was uncollectable. During this period of time, respondent had been attempting to purchase the PC's receivables from the trustee for $10,000.

On June 7, 2011, respondent appeared in the Probate Court for the Town of Bristol and asserted a lien for attorney's fees in the amount of $93,000 against real property owned by the Carmone estate, as well as a petition for approval to sell property located at 10 Hope Street in the Town of Bristol, to satisfy the lien.[6] Although respondent represented to the bankruptcy trustee that the receivable was largely uncollectable, he did not disclose that there was real property in the estate that could potentially secure the debt. In addition, respondent did not have authority from the trustee to attempt to collect the debt himself. These actions form the basis for count 2, alleging that respondent violated Rules 3.3 and 8.4(c) by failing to disclose his income to the Bankruptcy Court, misrepresenting his interest in a receivable to that court, and by engaging in conduct that amounted to a lack of candor, dishonesty, and misrepresentation to the bankruptcy trustee.

On August 4, 2011, the U.S. Trustee filed a complaint objecting to discharge. In his answer to the complaint, respondent neither admitted nor denied a large number of the allegations, including those that were straightforward and clearly within his knowledge; for example, whether he had filed his bankruptcy petition and bankruptcy schedules " under oath" (despite the fact that the petition's signature page included the language " I declare under penalty of perjury that the information provided in this petition is true and correct" and that the bankruptcy schedules contained similar language); whether he had a " Wells receivable" as property of the PC's bankruptcy estate; and whether the exhibits to the complaint, viz., copies of his motions in the Bristol Probate Court to collect attorney's fees for the work performed regarding the Wells receivable, were " true and accurate" copies of his own pleadings.

Subsequent to the U.S. Trustee's complaint, respondent filed an application for waiver of discharge; the waiver was granted, and the Trustee dismissed the complaint. The respondent's actions in Bankruptcy Court, as well as his actions during the lengthy Workers' Compensation Court hearings, form the basis for count 4, alleging that he violated Rules 3.3 and 3.5(d)[7] by engaging in conduct before both tribunals that demonstrated a lack of candor, as

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well as an attempt to disrupt these tribunals.

On September 12, 2011, Assistant Disciplinary Counsel issued a subpoena to respondent, directing him to produce the records identified in Rule 1.19(a)(1)-(8)[8] and to testify regarding the veracity and completeness of the production. The respondent appeared at the deposition but failed to produce the requested records. Instead, he challenged the authority of Assistant Disciplinary Counsel to issue the subpoena, and he stated that he needed more time. The respondent's failure to comply with the subpoena is the basis of count 3, alleging a violation of Rule 1.19.[9]

III

Disciplinary Proceedings


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