                                                                     Supreme Court

                                                                     No. 2014-148-M.P.
                                                                     (DSC-2012-04)
                                                                     (Dissent begins on page 37)


      In the Matter of Keven A. McKenna.          :


               Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.

                                          OPINION

       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.




                                                -1-
                                                 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 multiple constitutional violations and



1
    The Supreme Court appointed an Assistant Disciplinary Counsel to investigate this matter.
                                                -2-
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 (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


                                               -3-
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 highlight a few

particularly illustrative excerpts:




                                                 -4-
              “[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.

                                              -5-
              “[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 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




2
 It is worth mentioning that in respondent’s answer to the U.S. Trustee’s complaint objecting to
discharge in Bankruptcy Court, see infra, respondent provided a street address for his residence.
                                              -6-
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 practice of law as a limited

liability entity in violation of this Court’s order.



3
  On or around March 24, 2011, respondent changed the name of the bank account to “McKenna
Support Services, LLC”; however, he continued to use checks bearing the name “Law Offices of
Keven A. McKenna, LLC” after this date.
4
  Article V, Rule 3.3 of the Supreme Court Rules of Professional Conduct states, in pertinent
part: “Candor toward the tribunal. (a) A lawyer shall not knowingly: (1) make a false statement
of fact or law to a tribunal or fail to correct a false statement of material fact or law previously
made to the tribunal by the lawyer * * * .”
Rule 7.1 states, in pertinent part: “Communications concerning a lawyer’s services. A lawyer
shall not make a false or misleading communication about the lawyer or the lawyer’s services.”
                                                  -7-
       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




Rule 7.5 states, in pertinent part: “Firm names and letterheads. * * * (d) Lawyers may state or
imply that they practice in a partnership or other organization only when that is a fact.”
Rule 8.4 states, in pertinent part: “Misconduct. It is professional misconduct for a lawyer to:
* * * (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation * * * .”
5
  John Wells was the successor executor of the estate.
6
  This petition was later withdrawn.
                                               -8-
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 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



7
  Rule 3.5(d) states, in pertinent part: “Impartiality and decorum of the tribunal. A lawyer shall
not: * * * engage in conduct intended to disrupt a tribunal.”
8
  Article V, Rule 1.19(a) of the Supreme Court Rules of Professional Conduct requires that:
                “A lawyer shall maintain for seven (7) years after the events
               which they record:
                                                 -9-
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




                       “(1) The records of all deposits in and withdrawals from
               special accounts specified in Rule 1.15 and of any other bank
               account which records the operations of the lawyer’s practice of
               law. These records shall specifically identify the date, source and
               description of each item deposited, as well as the date, payee and
               purpose of each withdrawal or disbursement.
                       “(2) A record for special accounts, showing the source of
               all funds deposited in such accounts, the names of all persons for
               whom the funds are or were held, the amount of such funds, the
               description and amounts, and the names of all persons to whom
               such funds were disbursed.
                       “(3) Copies of all retainer and compensation agreements
               with clients.
                       “(4) Copies of all statements to clients or other persons
               showing the disbursement of funds to them or on their behalf.
                       “(5) Copies of all bills rendered to clients.
                       “(6) Copies of all records showing payments to lawyers,
               investigators or other persons, not in the lawyer’s regular employ,
               for services rendered or performed.
                       “(7) Copies of all retainer agreements and closing
               statements.
                       “(8) All checkbooks and check stubs, bank statements, pre-
               numbered cancelled checks and duplicate deposit slips with respect
               to the special accounts specified in Rule 1.15 and any other bank
               account which records the operations of the lawyer’s practice of
               law.”
9
  Rule 1.19(g) provides: “A lawyer who does not maintain and keep the accounts and records as
specified and required by this Disciplinary Rule, or who does not produce any such records
pursuant to this Rule shall be deemed in violation of these Rules and shall be subject to
disciplinary proceedings.”
                                             - 10 -
                                               III

                                    Disciplinary Proceedings

       A series of eight hearings was conducted before a three-member panel of the board,

during which both respondent and Assistant Disciplinary Counsel examined witnesses and

entered exhibits into evidence. In addition to challenging the authority of the panel to hear the

matter, as well as the authority of this Court to regulate attorneys, respondent argued that there

was no basis for sanctions.

       Specifically as to count 1, respondent argued that, after the February 2011 order of this

Court, he changed the name and purpose of his LLC to “McKenna Support Services, LLC” and

used the bank account established under that LLC name to pay his employees, his rent, and his

expenses. The respondent argued that the use of the account and the checks bearing the name of

the former LLC did not constitute the practice of law, and that he had continued to use these

checks as a mere matter of convenience. Regarding count 2, respondent argued that he had made

no false statements on his bankruptcy filings, and that he valued the Wells receivable at $63,000

because “[n]ot all of the estate[’s] billing had been posted” and the unbilled time increased the

value to $93,000. With respect to count 3, respondent argued that he had brought records to the

deposition, although he made them available for inspection only, and not for copying. Further,

respondent averred that he had invited Assistant Disciplinary Counsel to his law office to inspect

the records there, an invitation that was declined. Finally, as to count 4, respondent argued that

his actions in Workers’ Compensation Court and Bankruptcy Court are outside this Court’s

jurisdiction. He further represented that there was no evidence that he had engaged in conduct

intended to disrupt any tribunal.




                                              - 11 -
         The panel found that there was clear and convincing evidence that respondent had

violated the Rules of Professional Conduct as alleged in counts 1, 2, 3, and 4. Regarding count

1, the panel found that “[r]espondent’s use of the ‘LLC’ designation in his deposit slip/letterhead

constitutes a ‘material misrepresentation of fact or law’ and is false and misleading * * * .”

Further, the panel found that respondent’s testimony “by which he attempted to justify and/or

excuse” these actions was “palpably disingenuous.”         As to count 2, the panel found that

respondent “engaged in a course of conduct deliberately designed to hide the existence, value

and collectability of the Wells Receivable.” This conduct included making false statements of

material fact, failing to disclose material facts, and offering evidence that respondent knew to be

false.

         Regarding count 3, the panel found that respondent admitted that he did not bring all of

the records requested to either his deposition or the hearing, and that his invitation to Assistant

Disciplinary Counsel to inspect the records at his law office did nothing to mitigate this failure.

Because the subpoena directed him to produce the records at the office of Disciplinary Counsel,

he was duty bound to do so.        As to count 4, the panel found that during the Workers’

Compensation Court proceedings, respondent was “flippant, evasive, dilatory and disruptive.”

The panel noted that it was “disturbed by [respondent’s] disrespect” for the judge who was

presiding over that hearing, particularly respondent’s repeated refusal to answer simple questions

posed by the court, as well as respondent’s employing the threat of a lawsuit to support his

motion to recuse that judge. Finally, the panel found that respondent “was deliberately and

unnecessarily disruptive and dilatory, disrespectful to the [c]ourt including the judge and

opposing counsel, combative, evasive[,] unresponsive, disputatious and pugnacious in both his

testimony and in his actions as counsel for himself” before that court.


                                               - 12 -
         The panel rejected respondent’s argument that he was being subjected to disciplinary

action because of his “controversial positions on constitutional issues.”       Rather, the panel

concluded that “the allegations [were] sufficiently serious to warrant a recommendation for a

disciplinary sanction.” The panel recommended a one-year suspension from the practice of law.

On May 13, 2014, the panel’s recommendation was approved and adopted by the board.

                                               IV

                                           Discussion

         Pursuant to Article III, Rule 6(d) of the Supreme Court Rules of Disciplinary Procedure

for Attorneys, it became our unenviable task to review the record submitted by the board to

determine whether a forty-year member of the bar should be disciplined for his conduct.

Mindful of the gravity of this proceeding, we undertook a thorough review of the record,

particularly the transcripts of the proceedings in Workers’ Compensation Court and the hearings

before the panel. Because respondent has raised numerous objections based on constitutional

arguments, we shall first address these concerns, and we will then discuss the findings of the

board.

                                                   A

                              Respondent’s Constitutional Claims

         Throughout the course of these disciplinary proceedings, respondent has repeatedly

asserted claims of constitutional violations. 10       While these claims have been inserted in a

piecemeal, repetitive fashion into nearly all of respondent’s filings with this Court and with the

board, we have parsed them into two general areas of concern: (1) he challenges the authority of



10
  The respondent has filed four substantive motions with this Court: (1) a motion to stay these
proceedings pursuant to G.L. 1956 § 9-33-2; (2) a motion to recuse the justices of this Court; (3)
a motion to dismiss counts 2 and 4; and (4) a motion to dismiss count 3.
                                              - 13 -
this Court to regulate attorneys, as well as its and the board’s jurisdiction over matters of

attorney discipline; and (2) he alleges that the proceedings before the board and this Court have

violated his procedural due process rights. 11 We will address these contentions in turn. 12

                            1. This Court’s Authority and Jurisdiction

       The respondent challenges the authority of this Court to regulate attorneys, as well as its

and the board’s jurisdiction over matters of attorney discipline. More specifically, respondent

contends that this Court’s power is limited to appellate jurisdiction over statutory courts and/or

that the judiciary’s inherent power is limited to adjudicating cases and controversies. He appears

to argue that this Court’s creation of disciplinary procedures and the disciplinary board, as well

as this Court’s promulgation of rules of professional conduct, are exercises of legislative power

not delegated by the General Assembly and are, therefore, violative of the doctrine of separation

of powers.

       Contrary to respondent’s protestations, “[i]t is well settled that the authority of the

Supreme Court to discipline the members of the bar * * * is plenary in nature.” In re Lallo, 768

A.2d 921, 924 (R.I. 2001). As this Court explained almost eighty years ago:

11
   We note that respondent’s motions and memoranda are less than models of clarity, and we
have employed our best efforts to decipher and address his various constitutional claims. The
following verbatim quote is but one example of the manner in which respondent composed his
memoranda submitted to this Court:
                        “It was a violation of due process to have been civilly
                prosecuted by a persons appointed by the Supreme Court to
                prosecute for McKenna for violations created by illegal legislative
                actions of the R.I. Supreme Court. It was violation of Due Process
                to have those self-legislated rules enforced by the Judicial Bank
                and not be enforced by Executive regulatory appointment not
                appointed by the Governor.”
12
   The respondent also appears to claim that the disciplinary process has violated his rights under
the First Amendment; however, his discussion of this issue is perfunctory at best, and certainly
insufficient to form a cognizable claim for us to address. See Manchester v. Pereira, 926 A.2d
1005, 1015 n.8 (R.I. 2007) (repeating well-established rule that this Court will not substantively
address an issue that is not adequately briefed).
                                               - 14 -
               “In Rhode Island, at least since the adoption of the State
               Constitution, [the power to license attorneys and admit them to
               practice] has been vested in this [C]ourt. The General Assembly
               has conceded this by section 2, chapter 322, G.L. 1923, wherein it
               is declared that: ‘The [S]upreme [C]ourt * * * shall by general or
               special rules regulate the admission of attorneys to practice in all
               the courts of the state.’[13] This language has long been accepted
               by common consent to be declaratory of the power inherent in this
               [C]ourt to control and supervise the practice of law generally,
               whether in or out of court. A careful examination of the public
               laws, even before the adoption of the Constitution, and as far back
               as the year 1800, fails to reveal an enactment of the General
               Assembly assuming to regulate the matter by statute. On the other
               hand, there is ample evidence of the exercise of this power as a
               matter of course by the Superior Court of Judicature established in
               1746-47 which was the predecessor of this [C]ourt until 1798,
               when it became the Supreme Judicial Court.” Rhode Island Bar
               Association v. Automobile Service Association, 55 R.I. 122, 129-
               30, 179 A. 139, 142 (1935). 14

“This broadbased power includes the power to supervise, administrate, discipline, and serve the

needs of the public in all facets of the courts.” In the Matter of Almeida, 611 A.2d 1375, 1381

(R.I. 1992), superseded by statute on other grounds, Ryan v. City of Providence, 11 A.3d 68, 73-

74 (R.I. 2011). It further includes “the authority to exercise necessary means to regulate and

control the practice of law by promulgating and enforcing rules to discipline attorneys.” Id. at

1382. “Since the early days of English common law, it has been widely recognized that courts

possess the inherent power to regulate the conduct of attorneys who practice before them and to

discipline or disbar such of those attorneys as are guilty of unprofessional conduct.” Howell v.

State Bar of Texas, 843 F.2d 205, 206 (5th Cir. 1988); see In re Snyder, 472 U.S. 634, 643

(1985) (“Courts have long recognized an inherent authority to suspend or disbar lawyers. * * *

This inherent power derives from the lawyer’s role as an officer of the court which granted

13
  This statute is now codified at G.L. 1956 § 8-1-2.
14
  This Court went on to explain the historical roots of this institutional structure in common law
England. See Rhode Island Bar Association v. Automobile Service Association, 55 R.I. 122,
132-33, 179 A. 139, 143-44 (1935).
                                              - 15 -
admission.”); see also In re Petition of Almond, 603 A.2d 1087, 1087 (R.I. 1992) (“This court is

responsible for promulgating rules regulating the practice of law and ethical standards for the

conduct of attorneys admitted to the Rhode Island Bar.”). 15

       The passage of the separation of powers amendments in 2004 did not in any way dilute,

but rather served to solidify and strengthen, this inherent judicial authority. In 2004, article 5 of

the Rhode Island Constitution was amended to provide that the powers of the Rhode Island

government are distributed into “three separate and distinct departments: the legislative,

executive and judicial.” R.I. const., art. 5.     “In practice, this doctrine operates to confine

legislative powers to the legislature, executive powers to the executive department, and judicial

powers to the judiciary * * * .” In re Request for Advisory Opinion from House of

Representatives (Coastal Resources Management Council), 961 A.2d 930, 933 (R.I. 2008). Just

as “the separation of powers amendments did not, either explicitly or implicitly,[] limit or abolish

the power of the General Assembly in any other area where we have previously found its

jurisdiction to be plenary,” see id. at 935-36, the separation of powers amendments reinforced

the judiciary’s previously recognized plenary powers, including the power to regulate the

practice of law. See State v. Germane, 971 A.2d 555, 590 (R.I. 2009) (separation of powers

doctrine prohibits “unwarranted legislative invasion of the judicial power”).

       Accordingly, this Court has the authority, as it has had since its inception, to promulgate

and enforce rules of conduct and procedure for the regulation of attorneys, as well as to exercise

necessary means to regulate and control the practice of law.             This includes appointing



15
   See also G.L. 1956 § 8-6-2 (judicial authority to promulgate rules of practice and procedure);
G.L. 1956 § 11-27-18 (recognizing right of this Court to regulate and discipline members of the
bar); G.L. 1956 § 7-5.1-2(2) (identifying the Supreme Court as the regulatory agency for
attorneys at law); G.L. 1956 § 7-16-3.1 (applying § 7-5.1-2(2) to professional limited liability
companies).
                                                - 16 -
disciplinary counsel, creating the board to carry out this Court’s disciplinary powers, and

subpoenaing witnesses and materials in investigations related to attorney misconduct.

       Next, respondent claims that the appointment of disciplinary counsel as a “special

prosecutor” and use of the subpoena power are exercises of the executive power and violate the

separation of powers doctrine, and he also maintains that the General Assembly has not

delegated the subpoena power to the Supreme Court.

       We can find no legitimate basis for respondent’s assertion that the subpoena power is an

executive power or that it must be delegated to the judiciary by the General Assembly. See, e.g.,

State v. Guido, 698 A.2d 729, 734 (R.I. 1997) (recognizing “the subpoena power of the

judiciary”); Bartlett v. Danti, 503 A.2d 515, 517 (R.I. 1986) (same); Donatelli Building Co. v.

Cranston Loan Co., 87 R.I. 293, 297, 140 A.2d 705, 707 (1958) (recognizing court’s inherent

power to issue subpoenas); see also Taylor v. Illinois, 484 U.S. 400, 409 (1988) (“To ensure that

justice is done, it is imperative to the function of courts that compulsory process be available for

the production of evidence * * * ”) (quoting United States v. Nixon, 418 U.S. 683, 709 (1974)).

The Court, the board, and lawyers licensed to practice in Rhode Island, as officers of the Court,

including Disciplinary Counsel, may all properly exercise the judiciary’s inherent subpoena

power. See In re Snyder, 472 U.S. at 644 (recognizing that “as an officer of the court, a lawyer

can cause persons to drop their private affairs and be called as witnesses in court, and for

depositions and other pretrial processes,” although “subject to the ultimate control of the court”).

       Similarly, respondent’s contention that this Court’s appointment of an Assistant

Disciplinary Counsel as a “special prosecutor” is a violation of the separation of powers

doctrine—contrary to the advisory opinion in In re House of Representatives (Special

Prosecutor), 575 A.2d 176 (R.I. 1990)—is misguided. In that matter, at the request of the House


                                               - 17 -
of Representatives, the five members of this Court issued an advisory opinion, opining that

proposed legislation relating to the appointment of special prosecutors by the Chief Justice for

crimes involving public officials was unconstitutional. See id. at 176-77, 180. The justices

reasoned that, under the principle of separation of powers, the legislation impermissibly

encroached upon the power of the judiciary and threatened its independence. See id. at 178-79.

It did so by permitting the Chief Justice both to appoint and supervise special prosecutors (which

included defining the scope of the special prosecutors’ jurisdiction, releasing the special

prosecutors’ findings to the public, and removing special prosecutors) and to review on appeal

any felony prosecutions tried by the special prosecutor. Id. at 179. The justices concluded that

these conflicting roles by the Chief Justice “threaten[ed] the institutional integrity of the Judicial

Branch.” Id. (quoting Commodity Futures Trading Commission v. Schor, 478 U.S. 833, 851

(1986)).

       The proposed legislation at issue in In re House of Representatives impermissibly

transferred to the judiciary a fundamental executive power—specifically, the “power and

discretion to prosecute crimes”—which power is vested in the Office of the Attorney General by

the Rhode Island Constitution. See In re House of Representatives, 575 A.2d at 179-80; see also

R.I. Const., art. 9, sec. 12. In contrast, the role and function of disciplinary counsel appointed by

this Court is a means to carry out an inherent judicial function: the regulation of attorneys.

Furthermore, this Court is not, in the context of attorney discipline, jeopardizing its function as

the court of last resort of criminal matters. Rather, this Court is the only tribunal with authority

over matters of attorney discipline. See In re Commission on Judicial Tenure and Discipline, 916

A.2d 746, 751 (R.I. 2007) (noting that this Court has “steadfastly held” that the authority of this

Court to discipline the bar and bench is “plenary and exclusive”). This Court has established


                                                - 18 -
disciplinary procedures that allow initial screening and review by the board, with the assistance

of Disciplinary Counsel, in order to safeguard the due process rights of attorneys subject to

discipline. Furthermore, in the event an attorney disciplinary proceeding uncovers the possibility

that a crime may have been committed, such matters are referred to the Office of the Attorney

General to investigate and act on in accordance with its prosecutorial discretion.

        The respondent further argues that this Court does not have jurisdiction over attorney

conduct outside of the Supreme Court’s proceedings and, specifically, that attorney conduct in

the Workers’ Compensation Court, the Federal Bankruptcy Court, and “professional offices”

falls outside of this Court’s jurisdiction.

        The respondent’s contention that this Court’s jurisdiction over attorney conduct is limited

to actions in the Supreme Court is not warranted in law or fact. Not only would respondent’s

argument render much of the professional rules of conduct nugatory, it is contrary to the well-

established “power inherent in this [C]ourt to control and supervise the practice of law generally,

whether in or out of court.” Rhode Island Bar Association, 55 R.I. at 129-30, 179 A. at 142

(emphasis added). Especially considering how few attorneys come before the Supreme Court

and how infrequent such appearances are by the majority of attorneys who practice in this state,

such a rule would utterly prevent this Court from protecting the public from incompetent,

unethical, or irresponsible representation. Rather, the ethical standards imposed on attorneys

historically have extended—and do still extend—beyond the courtroom. See id. at 134, 179 A. at

144 (in the English colonies, “[a]dmission to the bar meant admission to practice law, and

admission to practice law comprehended all the activities of a lawyer in advising and assisting




                                               - 19 -
others in all matters of law both in and out of court”). 16 Indeed, over a century ago, this Court

recognized:

               “[A]ny conduct which demonstrates a moral condition inconsistent
               with the proper appreciation and discharge of professional duties
               and obligations may also form a just basis for disbarment or the
               imposition of some lesser punishment. In fact, any conduct which
               would preclude admission to the bar might well justify a
               disbarment thereafter, whether such conduct be associated with the
               discharge of strictly professional duties and obligations or clearly
               separated therefrom.” Crafts v. Lizotte, 34 R.I. 543, 546, 84 A.
               1081, 1082 (1912). 17

       In accordance with these principles, it is undeniable that this Court may investigate and

discipline attorney conduct regardless of where that conduct takes place. Attorneys licensed in

Rhode Island are held to the same professional standards whether they are practicing in the

Workers’ Compensation Court, in another state court, or in a local federal court. Indeed, this

Court has regularly applied Rhode Island’s Rules of Professional Conduct to attorneys practicing

in the local federal district court. See, e.g., In the Matter of Schiff, 677 A.2d 422, 423, 425 (R.I.

1996) (suspending attorney from the practice of law for eighteen months for her violation of the

Supreme Court Rules of Professional Conduct after she submitted a materially false affidavit to

the United States District Court for the District of Rhode Island); In re Petition of Almond, 603

A.2d at 1087, 1090 (denying a federal prosecutor’s petition for waiver of Article V, Rule 3.8 of

the Supreme Court Rules of Professional Conduct, which had been based on his contention that



16
   See Rhode Island Bar Association, 55 R.I. at 134-35, 179 A. at 144-45 for an historical and in-
depth discussion rejecting the argument that the regulation of lawyers should be limited to
conduct occurring in court.
17
   See also Rhode Island Bar Association, 55 R.I. at 135, 179 A. at 144 (quoting the Supreme
Court of South Carolina, in In Re Duncan, 65 S.E. 210, 211 (S.C. 1909), as stating that “[i]t is
too obvious for discussion that the practice of law is not limited to the conduct of cases in
courts”); Anderson v. Bosworth, 15 R.I. 443, 445, 8 A. 339, 341 (1887) (“it is now well settled
that the jurisdiction [of the court’s disciplinary power] extends to any matter in which an
attorney has been employed by reason of his professional character”).
                                               - 20 -
the rule conflicted with federal rules and standards and was a violation of the supremacy clause

of the United States Constitution). Further, attorneys are held to the same ethical standards

whether they are practicing in court, in a professional office, at home, on the street, over the

phone, in a coffee shop, or anywhere else.          There are no geographic or location-specific

limitations to an attorney’s ethical obligations.

       Next, respondent claims that the supremacy clause of the United States Constitution

prevents this Court from exercising authority over attorney conduct in federal courts.         “In

analyzing a claim under the supremacy clause, it is axiomatic that the supremacy clause is

relevant only when there is impermissible state interference with federal law.” In re Petition of

Almond, 603 A.2d at 1090 (citing Hillsborough County v. Automated Medical Laboratories,

Inc., 471 U.S. 707, 712 (1985)). In the instant matter, there is no such interference because the

state and federal courts have consistently been in harmony as to the proper ethical conduct of

attorneys practicing in their respective courts. For instance, the United States District Court for

the District of Rhode Island has adopted the Supreme Court Rules of Professional Conduct (and

any additional standards of conduct set forth in its local rules). See Rule 208 of the Local Rules

of the United States District Court for the District of Rhode Island. In order to practice in the

federal Bankruptcy Court in Rhode Island, an attorney must be in good standing with the bar of

the Supreme Court of Rhode Island and must be admitted to practice in the United States District

Court for the District of Rhode Island. See Rule 9010-1(a) of the Rules of the United States

Bankruptcy Court for the District of Rhode Island. Further, there is no indication that these

disciplinary proceedings in any way disrupted the bankruptcy proceedings in federal court,

which continued to transpire without interruption from this Court, the board, or Disciplinary




                                                - 21 -
Counsel. Nor has respondent contended that any specific disciplinary charge or applicable Rule

of Professional Conduct interferes with a particular federal rule or law.

       Accordingly, for the reasons stated above, this Court may exercise jurisdiction over

attorney disciplinary matters generally, and over respondent specifically.

                                           2. Due Process

       The respondent raises numerous concerns implicating his procedural due process rights

under the federal and state constitutions. First, he contends he was denied his procedural due

process right to “present evidence and argue law” and to be heard by the “full board.” Second,

he appears to be arguing that, because this Court promulgates and enforces the Rules of

Professional Conduct, appoints persons to the board, hires disciplinary counsel, and ultimately

determines whether and how to discipline an attorney for misconduct, this amounts to a

constitutionally infirm merger of investigatory, prosecutorial, and adjudicatory functions so as to

deny respondent procedural due process. 18

       Both the federal and state constitutions provide that no person shall be deprived of “life,

liberty, or property, without due process of law.” U.S. Const. Amend. XIV; R.I. Const. art. 1,

sec. 2. This Court has quoted the United States Supreme Court in explaining that “[t]he Due

Process Clause provides that certain substantive rights—life, liberty, and property—cannot be

deprived except pursuant to constitutionally adequate procedures. The categories of substance

and procedure are distinct.” Germane, 971 A.2d at 574 (quoting Cleveland Board of Education v.

Loudermill, 470 U.S. 532, 541 (1985)). “The guarantee of procedural due process assures that



18
  The respondent also contends that he was fined by the Workers’ Compensation Court without
an evidentiary hearing. This question is not properly before this Court; review of that contention
would require a writ of certiorari issued to the Appellate Division of the Workers’ Compensation
Court. See G.L. 1956 § 28-35-30; McGloin v. Trammellcrow Services, Inc., 987 A.2d 881, 885
(R.I. 2010).
                                               - 22 -
there will be fair and adequate legal proceedings, while substantive due process acts as a bar

against ‘certain arbitrary, wrongful government actions regardless of the fairness of the

procedures used to implement them.’” Id. (quoting L.A. Ray Realty v. Town Council of

Cumberland, 698 A.2d 202, 210 (R.I. 1997)).

       When addressing procedural due process concerns, this Court “ha[s] previously

employed the three-part test articulated by the United States Supreme Court in Mathews v.

Eldridge, 424 U.S. 319, 335 * * * (1976).” Germane, 971 A.2d at 574. Under the Mathews test,

three factors are to be considered in determining whether a procedure violates due process:

               “First, the private interest that will be affected by the official
               action; second, the risk of an erroneous deprivation of such interest
               through the procedures used, and the probable value, if any, of
               additional or substitute procedural safeguards; and finally, the
               Government’s interest, including the function involved and the
               fiscal and administrative burdens that the additional or substitute
               procedural requirement would entail.” Germane, 971 A.2d at 574-
               75 (quoting Mathews, 424 U.S. at 335).

       As to the first factor, it is undisputed that respondent’s license to practice law in this state,

which has been in place for forty continuous years, is a property interest sufficient to invoke due

process protections. See Barry v. Barchi, 443 U.S. 55, 64 (1979); Schware v. Board of Bar

Examiners of New Mexico, 353 U.S. 232, 238-39 (1957); see also Mackey v. Montrym, 443

U.S. 1, 10 n.7 (1979).

       As to the third factor, it appears respondent does not dispute that the state has an interest

in regulating attorneys. 19 Regarding the second factor, the state’s interest in regulating attorneys

must be enforced with sufficient procedural safeguards as to protect an attorney’s property

interest in his license to practice. “[A]n essential principle of due process is that a deprivation of



19
   The respondent appears to dispute, instead, which government branch has authority to do so;
this issue has been addressed supra.
                                                - 23 -
life, liberty, or property be preceded by notice and opportunity for hearing appropriate to the

nature of the case.” Germane, 971 A.2d at 579 (quoting Loudermill, 470 U.S. at 542); see In re

Ruffalo, 390 U.S. 544, 550 (1968) (an attorney subject to discipline must be afforded fair notice

of the charge and a meaningful opportunity to respond).

          Although respondent contends that he was not able to “present evidence and argue law”

and was denied a hearing by the full board, 20 it is indisputable that respondent was given a

meaningful opportunity to be heard.         A panel of the board convened and conducted eight

hearings on this matter over an eight-month period, heard testimony from respondent and other

witnesses, admitted numerous exhibits from both Disciplinary Counsel and respondent, and gave

respondent the opportunity to present and argue numerous motions. The respondent was also

permitted to submit to the board a post-hearing memorandum summarizing his position on the

facts and law. Furthermore, due process does not require a hearing before the full board;

hearings held before a panel of the board are appropriate to the nature of disciplinary matters.

See Barber v. Exeter-West Greenwich School Committee, 418 A.2d 13, 20 (R.I. 1980) (“[d]ue

process is a flexible concept and the degree of protection afforded to an individual may vary with

the particular situation”). Accordingly, the principle of notice and a hearing has been complied

with in this case.

          The due process clause also guarantees a hearing before a tribunal that is not “biased or

otherwise indisposed from rendering a fair and impartial decision.” La Petite Auberge, Inc. v.

Rhode Island Commission for Human Rights, 419 A.2d 274, 283 (R.I. 1980); see Champlin’s

Realty Associates v. Tikoian, 989 A.2d 427, 443 (R.I. 2010). “[T]he mere existence of a

combination of ‘investigatory, inquisitorial, and adjudicative roles in a single administrative



20
     The respondent has not alleged that he did not receive proper notice of the charges or hearing.
                                                 - 24 -
body’ does not amount to a denial of due process or signify that the agency’s structure or

operations is subject to constitutional attack.” In re Commission on Judicial Tenure and

Discipline, 916 A.2d at 750 (quoting La Petite Auberge, Inc., 419 A.2d at 284). The United

States Supreme Court has explained that, “in order to challenge an administrative process

successfully on the grounds of a combination of incompatible functions, a respondent must show

that the procedures ‘pos[e] such a risk of actual bias or prejudgment that the practice must be

forbidden if the guarantee of due process is to be adequately implemented.’” La Petite Auberge,

Inc., 419 A.2d at 284 (quoting Withrow v. Larkin, 421 U.S. 35, 47 (1975)).

       This Court has recognized that “the procedures employed in a modern administrative

agency that allots ‘the prosecutorial function to a staff of attorneys or other personnel who will

not participate in the eventual decision, is a common and recommended feature of American

administrative enforcement activity.’” In re Commission on Judicial Tenure and Discipline, 916

A.2d at 751 (quoting La Petite Auberge, Inc., 419 A.2d at 284). “[A]cceptable accommodation

can be reached between the needs for aggressive enforcement of [the] public-interest * * * and

fairness to individual * * * respondents, within the framework of a single agency’s

organizational processes.” La Petite Auberge, Inc., 419 A.2d at 285.

       The attorney disciplinary procedures in this state are designed in such a way that

complaints against attorneys are addressed fairly in accordance with state and federal law. As

discussed above, this Court steadfastly has held that “the authority of this Court to discipline

[attorneys] is plenary and exclusive.” In re Commission on Judicial Tenure and Discipline, 916

A.2d at 751. The fact that this Court promulgates and enforces attorney disciplinary rules,




                                              - 25 -
appoints board members, and hires disciplinary counsel to enforce these rules is typical of

administrative enforcement. 21

       There is absolutely no indication from this Court’s Rules of Disciplinary Procedure or the

record of the present case that the same individuals are involved in the building of an adversarial

case and the deciding of the issues, or that other special circumstances make the risk of

unfairness intolerably high.     All investigations, whether upon complaint or otherwise, are

initiated and conducted by Disciplinary Counsel who presents recommendations to the board but

does not participate in the board’s decision. See Rule 6(a), (b). Furthermore, the board may

commence formal proceedings only after a screening panel finds probable cause to believe the

respondent-attorney is guilty of misconduct (although a respondent-attorney may demand formal

proceedings as of right). See id. These procedures ensure unbiased review of charges of attorney

misconduct while safeguarding against any “risk of actual bias or prejudgment.” La Petite

Auberge, Inc., 419 A.2d at 285 (quoting Withrow, 421 U.S. at 47).

       Additionally, the board’s role is restricted to making recommendations to this Court. See

Art. III, Rules 4(d)(2) and 6(d) of the Supreme Court Rules of Disciplinary Procedure. Upon a

finding of attorney misconduct, it is the responsibility of the board to recommend a sanction,

including, but not limited to, public censure, suspension, or disbarment; however, the board’s

decisions are not final and it lacks enforcement authority. See Rules 4 and 6(d). Because of the

board’s limited authority, this Court is obligated to review the record and the evidence adduced

by the board, in order to enter an appropriate order. See Rule 6(d). Any proceedings before this

Court are to be conducted by Disciplinary Counsel, which again ensures the separation of

21
   See, e.g., G.L. 1956 chapter 17.1 of title 42 and chapter 17.7 of title 42 (creating the state
Department of Environmental Management, granting it the power to issue its own rules and
regulations and to hire and appoint enforcement personnel, and establishing a process of
adjudication of disputed enforcement actions).
                                              - 26 -
adversarial and adjudicatory functions. See id.        Accordingly, we are not persuaded by

respondent’s apparent argument that the procedures utilized result in a merger of investigatory,

prosecutorial, and adjudicatory functions such that his right to due process was denied. The

respondent’s motions to dismiss counts 2, 3, and 4 are therefore denied.

                                                B

                                Respondent’s Motion to Recuse

       Next, respondent has moved to recuse the members of this Court, claiming a procedural

due process violation and a violation of the Code of Judicial Conduct based on allegations of

personal hostility toward—and bias against—him by members of this Court.         He asserts three

bases for these allegations: (1) Assistant Disciplinary Counsel was appointed by this Court; (2)

the chair of the panel that heard respondent’s case applied to the Chief Justice to be appointed a

magistrate during the course of the disciplinary proceedings; and (3) the members of this Court

are “friendly” with a retired Chief Justice, who “[r]eportedly * * * has a bias toward

[respondent].”

       As mentioned above, the due process clause “entitles a person to an impartial and

disinterested tribunal.” Marshall v. Jerrico, Inc., 446 U.S. 238, 242 (1980). However, “[a]

respondent who raises this sort of irregularity must overcome a ‘presumption of honesty and

integrity in those serving as adjudicators.’” La Petite Auberge, Inc., 419 A.2d at 284 (quoting

Withrow, 421 U.S. at 47). “This presumption may be overcome through evidence that ‘the same

person(s) involved in building one party’s adversarial case is also adjudicating the determinative

issues’ or if ‘other special circumstances render the risk of unfairness intolerably high.’”

Champlin’s Realty Associates, 989 A.2d at 443 (quoting Kent County Water Authority v. State

(Department of Health), 723 A.2d 1132, 1137 (R.I. 1999)).


                                              - 27 -
       Likewise, Article VI of the Supreme Court Code of Judicial Conduct requires that judges

“avoid impropriety and the appearance of impropriety in all of [their] activities” and “perform

the duties of judicial office impartially and diligently.” Code of Judicial Conduct Canons 2, 3.

Thus, “judicial officers are duty-bound to recuse themselves if they are ‘unable to render a fair or

an impartial decision in a particular case.’” Ryan v. Roman Catholic Bishop of Providence, 941

A.2d 174, 185 (R.I. 2008) (quoting Kelly v. Rhode Island Public Transit Authority, 740 A.2d

1243, 1246 (R.I. 1999)).    Absent actual bias, the code provides that “[a] judge shall disqualify

himself or herself in a proceeding in which the judge’s impartiality might reasonably be

questioned * * * .” Code of Judicial Conduct Canon 3E1. The pertinent inquiry in this regard is

whether “a reasonable person might question [the judge’s] ability to remain impartial in hearing

the case,” particularly where facts exist “that would prompt a reasonable question in the mind of

a well-informed person about the judge’s capacity for impartiality * * * .” In re Bulger, 710 F.3d

42, 46 (1st Cir. 2013).

       While judicial officers are obligated to recuse themselves under necessitating

circumstances, they “have an equally great obligation not to disqualify themselves when there is

no sound reason to do so.” State v. Mlyniec, 15 A.3d 983, 999 (R.I. 2011) (quoting Ryan, 941

A.2d at 185). “The burden is on the party seeking recusal to set forth facts establishing that the

justice possesses a ‘personal bias or prejudice by reason of a preconceived or settled opinion of a

character calculated to impair his [or her] impartiality seriously and to sway his or her

judgment.’” Id. (quoting Mattatall v. State, 947 A.2d 896, 902 (R.I. 2008)).

       Here, respondent has failed to provide any facts that would demonstrate either bias or the

appearance of bias. First, as explained above, this Court’s appointment of Assistant Disciplinary

Counsel does not constitute a structural defect in violation of the due process clause; and, for the


                                               - 28 -
same reasons, it does not present an issue of bias warranting recusal. Second, respondent

appears to assert that the justices of this Court harbor personal animus towards him because the

retired Chief Justice serves the Court in the capacity of an appellate mediator and is “friendly”

with members of the Court. Assuming, arguendo, that the former Chief Justice has a bias toward

respondent, the former Chief Justice’s cordial relationship with the current members of this

Court is insufficient to impute bias or the appearance of bias. Similarly, respondent implies that

the current Chief Justice of this Court may harbor bias against respondent because a member of

the panel had applied to this Court for appointment to a magistrate position during the time when

this disciplinary matter was pending. 22 This fact alone does not demonstrate bias by the Chief

Justice in this proceeding, and respondent has not supported his serious allegations with any

additional relevant facts. Instead, he appears content to rest his claims on mere conjecture. As

we have previously stated, “[r]ecusal is not in order by a mere accusation that is totally

unsupported by substantial fact.” Mlyniec, 15 A.3d at 1000 (quoting State v. Clark, 423 A.2d

1151, 1158 (R.I. 1980)). We do not take motions for recusal lightly, but in this case respondent

has simply failed to establish any facts showing our apparent or actual bias. Accordingly, his

motion to recuse the members of this Court is denied.

                                                  C

                  Respondent’s Motion to Stay Pursuant to G.L. 1956 § 9-33-2

          In addition to his constitutional objections, respondent has moved this Court to stay the

proceedings pursuant to G.L. 1956 § 9-33-2, commonly referred to as the “anti-SLAPP” statute,

arguing that “[t]he purpose of the activities of [disciplinary counsel] who was hired by this Court




22
     The member of the panel in question was not appointed to the position.
                                                - 29 -
is to chill the free speech rights of Keven A. McKenna as an attorney by having his [sic]

suspended from the practice of law for pre-textual minor allegations * * * .”

       “The General Assembly enacted the anti-SLAPP statute in order to ‘prevent vexatious

lawsuits against citizens who exercise their First Amendment rights of free speech and legitimate

petitioning’ under the United States and Rhode Island Constitutions ‘by granting those activities

conditional immunity from punitive civil claims.’” Palazzo v. Alves, 944 A.2d 144, 150 (R.I.

2008) (quoting Alves v. Hometown Newspapers, Inc., 857 A.2d 743, 752 (R.I. 2004)). “Section

9-33-2 provides that, when that conditional immunity attaches, it renders ‘the petitioner or

speaker immune from any civil claims for statements, or petitions, that were not sham by virtue

of being objectively or subjectively baseless.’” Id. (quoting Global Waste Recycling, Inc. v.

Mallette, 762 A.2d 1208, 1211 (R.I. 2000)).

       The purpose and application of the anti-SLAPP statute are wholly inapplicable to

attorney disciplinary proceedings. The respondent is not being sued for his exercise of First

Amendment rights of free speech; rather, he is the subject of a disciplinary complaint, deriving

from his conduct as a licensed attorney, brought by Disciplinary Counsel under the rules of this

Court after a thorough investigation. We find no merit in respondent’s claim that this process is

somehow being used as a vehicle for chilling his free speech rights, nor in his claim that the anti-

SLAPP statute has any applicability to this type of proceeding.            Accordingly, we deny

respondent’s motion to stay these proceedings pursuant to § 9-33-2.

                                                 D

                               The Disciplinary Board’s Findings

       In addressing the board’s findings on the four counts, we begin by noting that no client

has brought this complaint, and there is no allegation that respondent ever improperly accessed


                                               - 30 -
any client funds. That is one circumstance that sets this apart from many of the disciplinary

cases that make their way to this Court. However, it is the responsibility of this Court to give

force and effect to all of the Rules of Professional Conduct. In doing so, we are mindful of the

high threshold of ethical conduct expected of members of the bar in this state. Aspiring lawyers

are required to pass the Multi-State Professional Responsibility Examination 23 and to

successfully undergo a character and fitness interview. Law students customarily take a course

in professional ethics, during which they are schooled in the high ethical standards expected of

an officer of the court. Newly admitted attorneys are required to take a day-long “Bridge the

Gap” course, which focuses heavily on professional ethics. It is our intent that all lawyers hold a

healthy respect for the Rules of Professional Conduct, and that they carry forward in their careers

the oath they swore upon entering this profession:

                        “[I] solemnly swear that in the exercise of the office of
               attorney and counselor [I] will do no falsehood, nor consent to any
               being done; [I] will not wittingly or willingly promote, sue or
               cause to be sued any false or unlawful suit; or give aid, or consent
               to the same; [I] will delay no man’s cause for lucre or malice; [I]
               will in all respects demean [myself] as an attorney and counselor
               of this [C]ourt and of all other courts before which [I] may practice
               uprightly and according to law, with fidelity as well to the court as
               to [my] client; and that [I] will support the constitution and laws of
               this state, and the constitution and laws of the United States. So
               help [me] God.” Article II, Rule 8 of the Supreme Court Rules for
               Admission of Attorneys and Others to Practice Law.

It is our expectation that newly admitted attorneys will observe adherence to that oath reflected

in the practice of the more senior members of the bar.




23
   “Any applicant for the bar examination shall be required to have obtained a Multi-State
Professional Responsibility Examination (MPRE) scaled score of 80 in order to be eligible to sit
for the Rhode Island bar examination.” Note to Article II, Rule 1 of the Supreme Court Rules for
Admission of Attorneys and Others to Practice Law.
                                               - 31 -
       We do not question respondent’s fidelity to the constitution—even if, from time to time,

we disagree with his interpretation of that document. However, the role of attorney demands

more. There are dozens of rules that govern professional conduct which, read together, demand

a high level of ethics and professionalism from members of this bar. We cannot maintain the

integrity of the profession if we ignore persistent, intentional, and repeated violations of the

Rules of Professional Conduct. Neither can we hold young attorneys to the standards we have

set if we allow more senior, seasoned members of the bar to flout those rules with impunity.

       In his brief summarizing the hearings before the panel, respondent stated that “[t]he

cliché that lawyers are ‘officers’ of the Supreme Courts [sic] is no more than a cliché.” We beg

to differ. An attorney’s position as an officer of the court is a sacred trust. “Courts have long

recognized an inherent authority to suspend or disbar lawyers. * * * This inherent power derives

from the lawyer’s role as an officer of the court which granted admission.” In re Snyder, 472

U.S. at 643. An officer of the court is a person “who is charged with upholding the law and

administering the judicial system. Typically * * * a judge, clerk, bailiff, sheriff, or the like, but

the term also applies to a lawyer, who is obliged to obey court rules and who owes a duty of

candor to the court.” Black’s Law Dictionary, 1259 (10th ed. 2014). “‘[T]he courts not only

demand [lawyers’] loyalty, confidence and respect but also require them to function in a manner

which will foster public confidence in the profession and, consequently, the judicial system.’” In

re Griffiths, 413 U.S. 717, 723-24 (1973). Benjamin Cardozo, then Chief Justice of the New

York Court of Appeals, wrote:

               “‘Membership in the bar is a privilege burdened with conditions.’
               * * * [An attorney is] received into that ancient fellowship for
               something more than private gain. He [becomes] an officer of the
               court, and, like the court itself, an instrument or agency to advance
               the ends of justice. His co-operation with the court [is] due,
               whenever justice would be imperiled if co-operation [were]

                                               - 32 -
                withheld. * * * He might be censured, suspended, or disbarred for
                ‘any conduct prejudicial to the administration of justice.’” People
                ex rel. Karlin v. Culkin, 162 N.E. 487, 489 (N.Y. 1928).

        The duty of candor, then, is the foundation of a lawyer’s profession. That duty is not

limited by the dictates of Rule 3.3 of the Rules of Professional Conduct; rather, courts have held

that there is a general duty of candor to the court that is broader than the rule. See United States

v. Shaffer Equipment Co., 11 F.3d 450, 457 (4th Cir. 1993) (“[W]e are confident that a general

duty of candor to the court exists in connection with an attorney’s role as an officer of the

court.”). The basis of this general duty of candor is “the principle that lawyers, who serve as

officers of the court, have the first line task of assuring the integrity of the process.” Id.

                         “Our adversary system for the resolution of disputes rests
                on the unshakable foundation that truth is the object of the
                system’s process which is designed for the purpose of dispensing
                justice. However, because no one has an exclusive insight into
                truth, the process depends on the adversarial presentation of
                evidence, precedent and custom, and argument to reasoned
                conclusions—all directed with unwavering effort to what, in good
                faith, is believed to be true on matters material to the disposition.
                Even the slightest accommodation of deceit or a lack of candor in
                any material respect quickly erodes the validity of the process.” Id.

        The integrity of the justice system is not served when an attorney, who has been sworn to

tell the whole truth in a proceeding, refuses to answer simple, straightforward questions, whether

posed by the court or by opposing counsel. Nor is it served by an attorney who disregards an

order of this Court, fails to respond to a subpoena, or deliberately misrepresents his assets to a

bankruptcy trustee. “The system can provide no harbor for clever devices to divert the search,

mislead opposing counsel or the court, or cover up that which is necessary for justice in the end.”

Shaffer Equipment Co., 11 F.3d at 457-58.

        It is clear that respondent’s actions in Workers’ Compensation Court were not candid and

not directed towards the truth, however literally true some of his responses may have been—e.g.,

                                                 - 33 -
“I live in a house.” We are further troubled by respondent’s conduct in Bankruptcy Court. We

agree with the board’s conclusion that respondent’s failure to disclose the nature of the Wells

receivable, as well as his refusal to admit or deny basic information in his answer to the

complaint objecting to discharge, constituted a lack of candor toward the tribunal in violation of

Rule 3.3. We also agree with the board’s findings that respondent’s conduct regarding the Wells

receivable was dishonest, in violation of Rule 8.4(c). As the board concluded:

                      “It is unfathomable that the serial misrepresentations and
               omissions of material fact, as unearthed and presented in this case,
               and which we find established by clear and convincing evidence,
               would occur without a mindset purposely predisposed to
               preventing the disclosure of assets which [respondent] deliberately
               attempted to hide from creditors, including the Bankruptcy
               Trustee.”

Furthermore, a reading of the Workers’ Compensation Court transcripts, containing respondent’s

painfully repetitive arguments and his steadfast resistance to the procedural boundaries of the

proceedings, shows conduct clearly intended to disrupt the tribunal in violation of Rule 3.5(d).

       We also agree with the board that respondent’s actions with regard to his use of the name

“Keven A. McKenna, LLC” violated Rules 7.1, 7.5, and 8.4(c) of the Rules of Professional

Conduct. After receiving an order of this Court explicitly prohibiting respondent from practicing

law as an LLC, he continued to use a bank account under the name of the LLC. He deposited

checks for legal services into this account, with at least one made out to the LLC.               The

respondent used this account to pay for expenses specifically associated with the practice of law,

including his attorney registration fee, court filing fees, transcript fees, and title search expenses.

We note the board’s determination that respondent’s justifications and excuses for these actions

were “palpably disingenuous.”




                                                - 34 -
       Additionally, we concur with the board’s finding that respondent’s failure to provide the

records requested through Assistant Disciplinary Counsel’s subpoena constituted a violation of

Rule 1.19. The respondent admitted at his deposition that he had not brought all of the records as

requested, seemingly relying on a last-minute motion to quash the subpoena, which was not

granted.   As explained supra, Assistant Disciplinary Counsel clearly had the authority to

subpoena respondent’s records, and respondent intentionally failed to comply with this request.

                                                  E

                                              Sanction

       Chief Justice John Marshall once observed:

                        “On one hand, the profession of an attorney is of great
               importance to an individual, and the prosperity of his whole life
               may depend on its exercise. The right to exercise it ought not to be
               lightly or capriciously taken from him. On the other, it is
               extremely desirable that the respectability of the bar should be
               maintained, and that its harmony with the bench should be
               preserved. For these objects, some controlling power, some
               discretion ought to reside in the Court. This discretion ought to be
               exercised with great moderation and judgment; but it must be
               exercised; and no other tribunal can decide, in a case of removal
               from the bar, with the same means of information as the Court
               itself.” Ex parte Burr, 22 U.S. (9 Wheat.) 529, 530 (1824).

So too, it is the ultimate responsibility of this Court to fashion an appropriate sanction for

respondent’s violations of the Rules of Professional Conduct. In so doing, we customarily give

great weight to the recommendation of the board. See In re Foster, 826 A.2d 949, 953 (R.I.

2003); In re Cozzolino, 811 A.2d 638, 641 (R.I. 2002). Nevertheless, this Court is the final

arbiter of professional discipline. In re Foster, 826 A.2d at 953.

       We have carefully considered the voluminous record of these proceedings, as well as the

recommendation of disbarment by Assistant Disciplinary Counsel, and indeed the judgment of

our dissenting colleague that the board’s recommendation is inadequate. We commend the

                                                - 35 -
members of the board, and the members of the hearing panel in particular, for their patience in

considering respondent’s sometimes repetitive arguments and continual challenges to their

authority. We are ever aware of the significant role that the board plays in protecting the public

and upholding the integrity of the bar and the legal profession.

       This Court has often said that “the purposes of discipline are not punishment of the

attorney but protecting the public and maintaining the integrity of the profession.” In re Scott,

694 A.2d 732, 736 (R.I. 1997). We are satisfied that the board’s recommendation of a one-year

suspension from the practice of law is warranted in this case and appropriately meets the dual

purposes of professional discipline. In our opinion, the record before us clearly illustrates a

persistent pattern of obstreperous behavior from 2009 to the present day, and before several

courts, that derogates sharply from the ethical standards to which we expect attorneys in this

state to adhere.   We disagree, however, with the dissent’s characterization of a one-year

suspension as a mere “slap on the wrist.” We do not consider insignificant a one-year hiatus in

one’s chosen profession with the consequent effect on his or her livelihood.

       In an apparent attempt to mitigate his misconduct, respondent reminds us that no client

has brought a complaint against him. Unfortunately, that is not particularly relevant; the simple

fact is that respondent was representing himself when the conduct that is the basis for the

disciplinary action took place. The Rules of Professional Conduct are in place not solely to

protect individual clients but also to protect the integrity of the judicial system itself. We would

not be true to our duty of safeguarding the integrity of the profession if we were to ignore

respondent’s conduct.

       We do not take lightly the responsibility of crafting a meaningful sanction for this

conduct. We are mindful of and take into account the respondent’s many years of service to his


                                               - 36 -
clients and the bar, including his participation in the state constitutional convention and his

significant pro bono work. The respondent is clearly an intelligent attorney and a passionate

advocate. We profoundly hope that, in the future, those attributes will be employed more

appropriately.

                                                 V

                                           Conclusion

       For the reasons stated above, we order that the respondent be suspended from the practice

of law for a period of one year, said period of suspension to commence thirty days from the date

of this opinion. In order to protect the interests of his current clients, we authorize Disciplinary

Counsel to supervise the orderly transfer of the respondent’s client matters to new counsel. At

the conclusion of this one-year period of suspension, the respondent must apply to this Court for

reinstatement pursuant to Article III, Rule 16 of the Supreme Court Rules of Disciplinary

Procedure.




       Justice Goldberg, concurring in part and dissenting in part. I respectfully dissent

from that portion of the majority decision that adopts the recommendation of the Disciplinary

Board of the Rhode Island Supreme Court (the board) that the respondent be suspended from the

practice of law for a period of one year. I do not undertake this dissent lightly, but do so in

accordance with my firm belief that the duty to protect the integrity of this profession rests with

this Court and, in light of that responsibility, the sanction adopted by the majority is inadequate

and fails to respond to the egregious nature and sheer number of material misrepresentations

made by the respondent and, importantly, also ignores the respondent’s conduct before the board.


                                               - 37 -
       Having carefully reviewed the entire record in this proceeding and in light of the

recommendation of disbarment by Assistant Disciplinary Counsel who prosecuted the petition, I

cannot agree with such a minimal sanction, which, in my opinion, does little to further any of the

Court’s well-established goals in imposing attorney discipline. In the face of this egregious

misconduct, this sanction does scant justice and overlooks the sad fact that this lawyer of many

years refuses or is unable to accept the authority of the Supreme Court over the conduct of

attorneys. In my opinion, this sanction amounts to a slap on the wrist.

       I begin by noting that, before the board, Assistant Disciplinary Counsel advocated that

respondent should be disbarred.      The board found, by clear and convincing evidence, that

respondent violated the Rules of Professional Conduct in each and every count of the petition.

The board also rejected respondent’s conspiracy-theory defense and his “unsupported and

inflammatory assertions * * * that he [was] being subjected to disciplinary action and/or

persecuted because of his controversial positions on constitutional issues,” and it concluded that

his “arguments and suppositions [were] mere sophistry which [did] nothing to dissuade [the

board] from its conclusion.”

       Next, the board recommended a suspension from the practice of law for a period of one

year, but did not set forth any reasoning for this recommendation. The board also failed to

address the recommendation of Assistant Disciplinary Counsel that respondent be disbarred. It is

this aspect of the board’s decision with which I take issue. I join the majority in commending

the board, and particularly the members of the panel, for their herculean efforts in this matter and

for the fine work of the Court’s Assistant Disciplinary Counsel and Deputy Disciplinary

Counsel. However, it is this Court’s responsibility to impose discipline that responds to the

circumstances of the case. See In re Schiff, 677 A.2d 422, 424-25 (R.I. 1996) (refusing to adopt a


                                               - 38 -
recommendation of public censure for an attorney who filed a false fee affidavit and instead

imposing an eighteen-month suspension).

       In his memorandum to this Court—a copy of which is attached to this opinion as an

Addendum—Assistant Disciplinary Counsel acknowledged the board’s recommendation of a

one-year suspension; but, nonetheless, in light of respondent’s serial violations of misconduct, he

argued “that the severity of [r]espondent’s actions as well as the lack of mitigation factors[,]

coupled with his utter disregard for not only this process, but this Court’s authority and the

protection of not only the integrity of the profession[,] but the public as well[,] warrants a

significant sanction beyond the one (1) year suspension recommended by the [b]oard.”

(Emphasis added.) I concur.

       It is my belief that, when imposing attorney discipline, this Court should look to the

totality of the circumstances, including the proceedings before the board. Indeed, the level of

cooperation before the board and respondent’s cooperation with Disciplinary Counsel are factors

that generally are brought to this Court’s attention in disciplinary matters.

       This was not an easy road for Assistant Disciplinary Counsel. The respondent challenged

his authority at every level as an ultra vires appointment by this Court. His integrity was

assailed, he was referred to on numerous occasions by respondent as a “hit man for the * * *

Supreme Court,” who was hired to “search and destroy” him; and, significantly, he alleged that,

as a practicing lawyer, Assistant Disciplinary Counsel could expect favorable advantage because

of his service to this Court. Assistant Disciplinary Counsel was sued four times—three times in

federal court and once in Superior Court. The level of vilification directed by respondent toward

anyone connected with the investigation and prosecution of this case, including the chair of the




                                                - 39 -
panel and the Court’s Deputy Disciplinary Counsel and Assistant Disciplinary Counsel, is

shocking and should not be overlooked by this Court.

       I share Assistant Disciplinary Counsel’s concern that, in addition to the unassailable

findings of misconduct “demonstrat[ing] a lack of candor amounting to dishonesty in dealing

with various tribunals” and respondent’s “refusal or inability to recognize his obligations under

the Rules of Professional Conduct[,]” respondent also violated a direct order from this Court

prohibiting him from practicing law in the corporate form and thereafter engaged in a course of

conduct, throughout these proceedings, in which he consistently and blatantly sought to

“circumvent this Court’s authority over his law practice[.]”

       By way of apparent mitigation of respondent’s misconduct, the majority notes that

respondent has been a member of the bar for many years and has performed pro bono services

during that time. This mitigation does not tip the scales for me.

       To this day, respondent has failed to produce the documents sought by Assistant

Disciplinary Counsel in defiance of a lawfully issued subpoena, on the ground that Assistant

Disciplinary Counsel had no authority to issue it. He moved to quash the subpoena, not before

this Court, but before the board, the day before the return date. He appeared at the deposition

and flatly refused to produce the records. His statement to the board about why he refused to

produce the sought-after records is emblematic:

               “I did bring the records, I did not give them to him because, as I
               have said before, he’s an employee hired by the Supreme Court
               who has no authority to do this. And I then filed a lawsuit against
               him in Federal Court. So I met the request even though I thought
               he had no statutory or constitutional authority [to] do anything of
               the kind. He’s not an Assistant Disciplinary Counsel. He’s a hired
               gun by the Rhode Island Supreme Court by cont[r]act. He gets
               paid an hourly fee and he has no authority [to] do depositions or to
               request subpoenas.” (Emphasis added.)


                                               - 40 -
In my opinion, the fact that Assistant Disciplinary Counsel resorted to issuing subpoenas for

respondent’s bank records is of no moment to this discussion. The respondent should have been

suspended from the practice of law for noncompliance with Article V, Rule 1.19 of the Supreme

Court Rules of Professional Conduct like every other attorney who fails to comply with Rule

1.19. In no event should respondent be readmitted to the practice of law until he produces all

records that were subject to subpoena.

       As noted, during the course of these proceedings, respondent filed numerous lawsuits

against the Chief Justice, the board, Assistant Disciplinary Counsel, and various court employees

challenging the authority of the board and Assistant Disciplinary Counsel. Finally, after hearings

that spanned over one year, the board issued its findings and submitted its recommendation to

this Court. We issued an order directing respondent to appear before this Court in order to

respond to the findings of the board. In response, respondent moved to recuse the members of

this Court based on bias, unethical conduct, and a violation of his right to due process. Next, he

filed yet another federal lawsuit—his third—seeking to restrain this Court from proceeding.

That complaint was entitled “COMPLAINT TO STAY SUSPENSION OF PLAINTIFF FROM

PRACTING [sic] LAW FOR HIS ACTS IN FILING FEDERAL BANKING [sic]

PROCEEDING,        ANSWERING          FEDERAL          ADVERSARY       PROCEEDURES          [sic],

CHALLENGING UNCONSTITUTIONAL ACTS IN FEDERAL COURT.” The respondent’s

rambling discourse in this pleading, as well as his conduct in his appearances before the panel of

the board, convince me that he has no insight into his obligations as a member of the bar or the

gravity of his dishonesty and attorney misconduct.

       In this eleventh-hour salvo, respondent alleged that the Supreme Court was not an

adequate or fair forum to hear this matter; that the Court has no authority to suspend respondent


                                              - 41 -
in the absence of a complaint from a client or a judge or the Bankruptcy Trustee; that the Rules

of Professional Conduct are “unconstitutional”; and that Assistant Disciplinary Counsel, at the

direction of his client, this Court, has undertaken “an otherwise unfounded and unconstitutional

pre-textual administrative inquisition of the [p]laintiff’s practice of law to seek possible technical

violations of the Rule[s] * * * of Professional Conduct[.]” He alleged that this Court has no

authority over lawyers “outside of the walls of the R.I. Supreme Court, and in particular within

the U.S. Bankruptcy Court”; and that the appointment of Assistant Disciplinary Counsel was in

retaliation for respondent’s exercise of his rights under the First Amendment.

       I pause to note that respondent, clearly and unequivocally, has every right to express his

opinions about the members of this Court, the constitution, and his version of the separation of

powers in this state and the United States; he even is free to amalgamate those doctrines as he

often does. See, e.g., In re Application of Roots, 762 A.2d 1161, 1170 (R.I. 2000). Nonetheless,

he must comply with the Rules of Professional Conduct.

       The respondent was found by the board to have filed numerous motions out of time,

which were declared to be specious and designed to delay the tribunal. He continued to file the

same motions and make the same arguments ad nauseam. The respondent contended that the

numerous allegations in the petition filed by Disciplinary Counsel amounted to “pettifoggery”

and “frivolous little things” taken out of context. He also accused, without apparent foundation

or good-faith basis, Barbara Margolis, the Court’s Deputy Disciplinary Counsel, of participating

in the discussions and deliberations of the board. Ms. Margolis did not attend any deliberations

or discussions of the board, and respondent was admonished by the Chair.

       On numerous occasions respondent moved the Chair to recuse herself, based on his

contention that her evidentiary rulings demonstrated bias. At the conclusion of the hearings


                                                - 42 -
before the board, respondent refused to rest his case. He had no further witnesses to call. When

asked if he had any other exhibits to introduce, he stated that he did, but that the Chair would

“have to wait until I get them.” When informed that the exhibits were required to be produced

later that day, respondent refused to produce any further evidence and refused to rest his case.

The Chair declared the evidence closed. The respondent’s actions before the board, in my

opinion, amounted to unprofessional conduct in violation of Article III, Rule 6(e) of the Supreme

Court Rules of Disciplinary Procedure. 1

         The respondent’s conduct, his multitude of lawsuits challenging the authority of this

Court, his deceitful behavior and lack of candor―as set forth in the petition and findings of the

board―his refusal to cooperate with Disciplinary Counsel, and his disobedience to a lawfully

issued subpoena duces tecum, merit a significantly longer period of suspension and an order that

respondent must reapply for admission to the bar, must produce the records demanded by the

subpoena, and must demonstrate his fitness to practice law, including his obligation to comply

with the Rules of Professional Conduct. Unless he is able to do that, respondent should be

deemed unfit to practice law.

         The respondent’s personal opinions about the current or former members of this Court

have no bearing on my opinion in this case, nor do his quixotic ramblings concerning his view of

our constitutional structure. The judicial power rests with this Court. The respondent’s view of

the state’s separation of powers as including overlapping responsibilities and authority among



1
    Article III, Rule 6(e) of the Supreme Court Rules of Disciplinary Procedure provides:

         “Duty to Cooperate. The failure of an attorney whose conduct is the subject of an
         investigation authorized by these rules to comply with the reasonable orders and
         requests of either Counsel or the Board shall constitute unprofessional conduct,
         and any such failure shall be referred forthwith to this Court for such action as it
         deems appropriate.”
                                                - 43 -
the branches is irrelevant in the context of attorney regulation and discipline. Moreover,

respondent’s flexible and fluid arguments about this state’s constitutional structure do not serve

as a shield against his perfidious conduct or block scrutiny by this Court.

       In addition to respondent’s behavior during the course of this investigation, my concern

about the inadequate penalty also extends to the breadth and nature of his misconduct that led to

the petition. It is important to note that the petition filed by Disciplinary Counsel did not concern

merely one event or proceeding. The violations of the Rules of Professional Conduct did not

involve a client or any zealous advocacy by respondent to protect the rights of a client. This

disciplinary petition solely dealt with respondent’s operation of his law practice and his behavior

before the state and federal tribunals concerning his own affairs.

       In count 1, the board noted that respondent admitted that he was not insolvent, but he

filed two bankruptcy petitions solely to obtain a stay of an order in the Workers’ Compensation

Court that compelled him to pay money to a former employee. This action was taken in order to

impede the Workers’ Compensation proceeding. The respondent then filed an application with

this Court for permission to practice law as a limited liability company (LLC). This Court issued

an order prohibiting respondent from practicing law in any corporate form until he certified that

he was no longer practicing law as Keven A. McKenna, PC. He defied this order, changed the

name of the corporation to McKenna Support Services, LLC, and continued to practice law

under that corporate form. Significantly, practicing law as McKenna Support Services, LLC

constitutes the practice of law as an LLC, the very conduct this Court proscribed.              The

respondent failed to change his bank account, continued to deposit client checks and draw funds

for operating expenses from that account, and did so until he was advised that a subpoena had

issued for his banking records. He then filed a federal lawsuit seeking to quash that subpoena.


                                               - 44 -
       The board found that respondent held himself out as an LLC in violation of an express

order from this Court. The board also found respondent’s attempts to justify his conduct and

“minimize the gravity of his diversion from the applicable disciplinary rules, as palpably

disingenuous.” (Emphasis added.) Standing alone, this finding warrants further suspension.

This Court frequently is asked by Disciplinary Counsel to consider an attorney’s lack of candor

to Disciplinary Counsel and the board during a disciplinary proceeding.

       Count 2 of the petition focused on respondent’s unprofessional conduct before the

Bankruptcy Court—in failing to disclose income, misrepresenting his interest in a receivable,

and engaging in conduct that amounted to a lack of candor and dishonesty—and in his failure to

cooperate with the U.S. Trustee’s investigation. The respondent failed to report the receivable

in his sworn statement to the Bankruptcy Court and to his own attorney. He unilaterally, and

without notice to the Bankruptcy Trustee, filed a motion for a whopping attorney’s fee and filed

an affidavit, in the Town of Bristol Probate Court, designed to place a lien against the probate

estate of a former client. He got caught. The U.S. Trustee filed an adversary complaint against

him and objected to any discharge. In response to this complaint, respondent proceeded to

commit even more violations of the Rules of Professional Conduct, including lack of candor and

actions intended to disrupt the proceeding. In his answer to the adversary complaint, respondent

refused to admit or deny basic information, including his refusal to admit that copies of his own

pleadings were true and accurate copies. He also failed to comply with a subpoena to produce

records.

       In addressing count 2, the board made a plethora of adverse findings against respondent,

including that he “made serial misstatements and misrepresentations regarding his financial

affairs, or omitted material facts which he was under an obligation to disclose under sworn


                                             - 45 -
statement in the Bankruptcy Court and in testimony at hearing on the instant [p]etition.” The

board set forth seven separate material misrepresentations with respect to this receivable.

Additionally, the board found that respondent “engaged in a course of conduct deliberately

designed to hide the existence, value and collectability of the Wells Receivable. This course of

conduct included the making of false statements of material fact, the failure to disclose material

facts and the offering of evidence that the [r]espondent knew to be false.” The board concluded

that this conduct simply cannot be countenanced. The board also declared:

                      “It is unfathomable that the serial misrepresentations and
               omissions of material fact, as unearthed and presented in this case,
               and which we find established by clear and convincing evidence,
               would occur without a mindset purposely predisposed to
               preventing the disclosure of assets which [respondent] deliberately
               attempted to hide from creditors, including the Bankruptcy
               Trustee.”

        The board also found that respondent’s conduct was intended to and did disrupt the

tribunal. The board also rejected, as ringing hollow, respondent’s tired refrain that neither the

board nor this Court has jurisdiction over lawyers in federal court proceedings. See In re Schiff,

677 A.2d at 424 (attorney disciplined for filing false document in United States District Court for

the District of Rhode Island).

       Count 3 relates to respondent’s unprofessional conduct with respect to a deposition

conducted by Assistant Disciplinary Counsel and respondent’s subsequent refusal to maintain

records as mandated by Rule 1.19. The respondent was served with a lawfully issued subpoena

directing him to appear and bring certain records and to testify with respect to the veracity and

completeness of the records produced. He refused to do so. The night before the scheduled

deposition, he moved to quash the subpoena on the ground that Assistant Disciplinary Counsel

did not have the authority to conduct the disciplinary investigation. The board could discern no


                                              - 46 -
credible authority to support this assertion and found that respondent refused to comply with the

subpoena in violation of Rule 1.19 and, further, that he engaged in obstreperous tactics and

conduct before the board. This conduct is unacceptable. Attorneys are required to cooperate in

any investigation by Disciplinary Counsel or face serious consequences. This Court has not

hesitated to respond appropriately when called upon to do so. See In re D’Ambrosio, 29 A.3d

1241, 1241-42 (R.I. 2011) (mem.) (suspending respondent from the practice of law for failure to

comply with a duly authorized subpoena directing him to provide financial records to

Disciplinary Counsel in connection with a disciplinary complaint); In re Williams, 791 A.2d 486,

486 (R.I. 2002) (mem.) (disbarring an attorney―after an initial suspension―for disregard of the

Court’s order to comply with subpoenas issued in connection with a disciplinary investigation).

       Count 4 brings us to yet another forum, the Workers’ Compensation Court, where

respondent disrupted the proceedings, failed to exhibit candor, accused the Chief Judge of bias

against him, and threatened the Chief Judge, declaring that he was “suing you personally because

you’re trying to make, take money out of my pocket. I’m going to take money out of your

pockets.” The board found that respondent was flippant, evasive, dilatory, and disruptive when

he refused to disclose his home address to the Workers’ Compensation Court, noting that

documents he filed in the Bankruptcy Court, the Office of the Secretary of State, and in everyday

correspondence included the number and name of the street address he refused to disclose to the

court. Additionally, the board found that respondent refused to admit the existence of pretrial

orders that were part of the court record and refused to answer straightforward questions and

feigned a lack of recollection of his claim for a trial and feigned a lack of understanding of

simple questions. The board found that respondent was “deliberately and unnecessarily

disruptive and dilatory, disrespectful to the [c]ourt[,] including the judge and opposing counsel,


                                              - 47 -
combative, evasive, unresponsive, disputatious and pugnacious in both his testimony and in his

actions as counsel for himself before the Workers’ Compensation Court * * *.”

       Accordingly, based on the numerous, indeed successive and escalating, incidents of

dishonesty and unprofessional conduct committed by respondent, all of which related to his

conduct as an attorney and officer of this Court, I am of the belief that a suspension of one year

does not respond to the seriousness of the violations, their number, or their scope. Although this

Court appropriately accords deference to the recommendations of the board, we also pay close

attention to the arguments of the Disciplinary Counsel, who have an opportunity to appear before

the Court when discipline is recommended.         In this instance, although acknowledging the

recommendation of Assistant Disciplinary Counsel, the board failed to set forth any discussion of

its reasons for rejecting the recommendation and instead recommended a suspension of one year.

       In appropriate cases, this Court has elected not to adopt the recommendation of the board.

See In re Schiff, 677 A.2d at 424-25 (declining to follow the board’s recommendation of a public

censure and imposing an eighteen-month suspension for filing a false fee affidavit in federal

court); Lisi v. Resmini, 603 A.2d 321, 324 (R.I. 1992) (rejecting the board’s recommendation of

a sixty-day suspension and ordering a suspension of one year for filing a false jurat). In Carter v.

Muka, 502 A.2d 327 (R.I. 1985), this Court initially suspended and, after a lengthy evidentiary

proceeding before the full Court—which was necessary because a respondent filed suit against

the entire disciplinary board—subsequently disbarred Betty Muka for, among other things, filing

unfounded lawsuits with the intent to harass or injure another; knowingly advancing a claim that

was unwarranted under existing law; engaging in conduct which was degrading to a tribunal; and

knowingly making false accusations against a judge, including vituperative and unsupported

accusations against a justice of the Superior Court and other members of the bar. Id. at 328-30.


                                               - 48 -
Although Muka certainly represents an extreme case, this Court’s concerns for the rights of

individuals who were hauled into court based on Attorney Muka’s baseless claims and the rights

of litigants in our courtrooms, including her “utter disregard for the requirements of law and the

rights of any person who has the temerity to disagree with her[,]” id. at 330, are relevant to this

analysis.

       In conclusion, it is my opinion that the sanction recommended by the board, and adopted

by the majority, is wholly inadequate and, when compared to discipline imposed upon other

members of the bar for a single violation of the disciplinary rules, is disparate.

       Although I do not, as the majority suggests, consider “a one-year hiatus” from the

practice of law to be “insignificant,” I continue to believe that the sanction in this case, for what

is serial misconduct involving deceit and dishonesty, is a nominal sanction that does not respond

to this Court’s goal of maintaining the integrity of this honorable profession.

       Furthermore, it is my belief that the respondent should not be readmitted to the practice

of law unless and until he produces the records that were the subject of a lawfully issued

subpoena. This Court has never overlooked an attorney’s refusal to produce records sought by

Disciplinary Counsel. We should not do so here.

       Accordingly, it is my opinion that the respondent should be suspended from the practice

of law for two years and should not be readmitted until he complies with Rule 1.19.




                                                - 49 -
                          RHODE ISLAND SUPREME COURT CLERK’S OFFICE

                                 Clerk’s Office Order/Opinion Cover Sheet




TITLE OF CASE:      In the Matter of Keven A. McKenna.

CASE NO:            No. 2014-148-M.P.
                    (DSC-2012-04)

COURT:              Supreme Court

DATE ORDER FILED:   February 27, 2015

JUSTICES:           Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.

WRITTEN BY:         Per Curiam

JUDGE FROM LOWER COURT:

                    N/A

ATTORNEYS ON APPEAL:

                    For Petitioner:   Marc DeSisto, Esq.
                                      Assistant Disciplinary Counsel

                    For Respondent: Keven A. McKenna, Esq., Pro Se
