Legal Ethics

Lawyer's deposition question was 'serious misconduct,' top state court says in suspension order

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A lawyer who asked a court-appointed parenting consultant in a deposition about past allegations of sex with minors, without any good faith basis to make the accusation, committed “serious misconduct,” according to the Minnesota Supreme Court.

The inappropriate question was part of a “pattern of misconduct” by lawyer Marc Kurzman, according to the Nov. 25 opinion. The Legal Profession Blog has highlights from the decision, which imposed a 60-day suspension and a two-year supervised probation. The court rejected a recommendation that Kurzman be required to apply for reinstatement.

“Asserting without a good faith basis that [the consultant] had been accused of sex with minors was serious misconduct,” the court said. Later in the opinion, the court said damage caused by asking the question was less serious than other rule violations, however.

Besides asking the inappropriate question, Kurzmman failed to submit records to a court within a 30-day deadline; failed to return a complete file to a client for six months; and included materials from other clients when the file was shipped to the client. Kurzman paid for return of the wrongly shipped files. “Considered together, Kurzman’s rule violations were serious and weighty,” the court said.

Kurzman was on probation in another ethics case when he asked the parenting consultant about allegations of sexual misconduct, the court said. Kurzman’s deposition question: “When you were accused of inappropriate contact with some of your clients, boys, at that time did you undergo a polygraph examination?”

The consultant denied any inappropriate contact with boys who were patients, spurring Kurzman to ask: “Have you ever been accused of inappropriate contact with any children?”

The consultant replied: “No. Not that I’m aware of, no. Never any allegations. I would love to see any documentation of that. It actually can’t exist.”

Kurzman testified during an evidentiary hearing that he recalled the consultant had been accused of sexual contact with minors, but Kurzman supplied no evidence to support that recollection.

The court said Kurzman had previously been disciplined 10 times. He has received eight private admonitions, one private probation and one public reprimand, which included two years of supervised probation.

Kurzman did not immediately respond to an email seeking comment.

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