- 1

- Supreme Court
No. 20 14

- 148

- M.P. (DSC

- 2012

- 04) (Dissent begins on page 3 7 )

In the Matter of Keven A. McKenna

. :
Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ. O P I N I O N
P ER CURIAM . This attorney d isciplinary matter comes before this Court pursuant to a recommendation of the Disciplinary Board of the Rhode Island Supreme Court (b oard) 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 t hat 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 t he 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

.- 2

- I Procedural History On November 5 , 2012, Chief Disciplinary Counsel brought disciplinary charges against respondent, alleging violation s of several of the Supreme Court Rules of P rofessional 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 I sland (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 Articl e V, Rule 1.19 of the Supreme Court Rules of Professional Conduct by failing to provide records requested by Assistant Discipli nary Counsel 1 through a subpoena and by failing to keep recor ds as mandated by Rule 1.19; and count 4 alleged that responden t vio lated 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 w ell as an attempt to disr upt tho se tribunals. On December 1 1 , 2012, res pondent 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 agains t Chief Disciplinary Counsel , Assistant Disciplinary Counsel, and the Chair of the board , alleged multiple constitutional violations and

1 T he Supreme Court appointed an Assistant Disciplinary Counsel to investigate this matter.- 3

- 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 Di strict of R hode 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 , 2 013 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 thre e - member panel of the b oard (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 B ankruptcy C ourt), 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 w ere admitted, including the transcript of the hearings in Workers’ Compensat ion 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- 4

- workers’ compensation benefits, alleging a work

- related injury

. Because th e PC was unable to provide proof that it carried workers’ compensation insurance as required by statute, a pre trial order was entered that ordered it to make weekly compensation payments to Stone. The respondent , on behalf of the PC, refused to ma ke the p ayments, 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’ Compensa tion Court, who was presiding over the hearings, to recuse himself

. Each motion was argued, and all of the motions were denied. Despite the denial s , 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 compl y 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 t o the fact that respondent refused to make payments as required by the pretrial order. T hus , the pretrial order became the court’s final order. While the Workers’ Compensation Court transcripts are replete with examples of respondent’ s apparent contemp t for the court and the proceedings as a whole, we highlight a few particularly illustrative excerpts :- 5

- “[Respondent]: I would like to enter a n 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 yourse lf, assign it to another jud ge. * * * 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 th at 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 hearing s , respondent, while testifying as a witness, refused to admit familiarity with the pretrial order that ha d 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 tel l me the addres s 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 th e address of that house that you live in? “[Respondent]: Actually, I don’t think it has an address, it has a post

- office box.- 6

- “[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 direction s 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 pre trial 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 Distri ct Court and the Supe rior 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, t he day before the hearing on his motion in the Workers’ Compensation Court , respondent filed a Chap ter 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 C ourt , see infra , respondent provided a street address for his residence.- 7

- 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 fo r 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 h a[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 conti nued to use a bank account in the name of “Law Office s 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. Th ese 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 Sup reme 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 previous ly 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.”- 8

- 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 siz able amount of unpaid fees for legal services provided to this client (hereinafter known as the “Wells r eceivable” 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 2 5, 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 thi s 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

assert ed 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 satis fy 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. Th ese 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 interes t 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 l awyer 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.- 9

- conduct that amounted to a lack of candor, dishonesty , and misrepresentation to the bankruptcy

trustee

. On August 4, 2011, th e 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 “und er oath” (despite the fact that the pet ition’s signature page included the language “I declare under penalty of perjury that the information provided in this petition is true and correc t ” and that the bankruptcy schedules contain ed similar language); wheth er 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 fe es 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. T he respondent’s actions in Bank ruptcy Court, as well as his actions during the lengthy Workers ’ Compensation Court hearings, form the basis for c ount 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 record s 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 tribuna l. 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 event s which they record:- 10

- 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 Discip linary 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 c ount 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 wh om 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 cli ents 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, fo r 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 do es not produce any such records pursuant to this Rule shall be deemed in violation of these Rules and shall be subject to disciplinary proceedings.”- 11

- III Disciplinary Proceedings
A series of eight hearing s 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 a s the authority of this C ourt to regulate attorneys, respondent argued that there was no basis for sanctions. Specifically as to count 1 , respondent argued that, after the February 2011 o rder of this Court, he changed the name and purpose of his LLC to “ McKenna Support Services, LLC ” and used the ba nk account established under that LLC name to pay his employees, his rent , and his
expenses. The respond ent arg ued that the use of the account and the checks bearing the name of the former LLC did not constit ute 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 r eceivable 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 c ount 4 , respondent argued that his actions in Workers’ C ompensation 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.- 12

- The panel found that there was clear and convincin g evidence that respondent had violated the Rules of Prof essional 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 misr epresentation 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
respon dent “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 inspec t the records at his law office did nothing to mitigate this failure

. Because the subpoena directed him to produc e the records at the office of Disciplinary C ounsel, he was duty bound to do so. As t o c ount 4 , the panel found that during the Workers’
C ompensation 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, disr espectful 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.- 13

- The panel rejected respondent’s argume nt that he was being subjected to discipl inary 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 cons titutional 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 filing s with this Court and with the b oard, we have parsed them into two general areas of concern: (1) he chall enges 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

.- 14

- this Court to regu late attorneys , as well as its and the b oard’s jurisdiction over matters of attorney discipline; and (2) he alleges t hat the proceedings before the b oard and this Court have violated his procedural due process right s. 11 We will address these contentions in turn. 12
1. This Court’s Authority and Jurisdiction The r espondent challenges the authority of this Court to regu late attorneys, as well as its and the b oard’s jurisdiction over matters of attorney d iscipline. More specifically, r espondent 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 creat ion of disciplinary procedu res and the disciplinary b oard, 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 sepa ration of powers. Contrary to r espondent’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 ex plain ed almost eighty years ago:

11 We note that respondent’s motion s and memoranda are less than model s 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 viol ation 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

- l egislated 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; h owever, 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).- 15

- “ In Rhode Island, at least since the adoption of the State Constitution, [the power to license attorneys and admit them to pra ctice] has been vested in this [C] ourt. The General Assembly has conceded this by section 2, chapter 322, G.L. 1923, whe rein it is declared that: ‘The [S] upre me [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 de claratory 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, f ails 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 whi ch was the predecessor of this [C] ourt until 1798, when it became the Supreme Judicial Court. ” Rhode Island Bar Association v. Automobile Service Ass ociation , 55 R.I. 122, 129

- 30, 179 A. 139, 142 ( 1935). 14 “This broadbased power includes the power to superv ise, administrate, discipline, and serve the needs of the public in all facets of the courts.” In t he Matter of Almeida , 611 A.2d 1375, 1381 (R.I. 1992), supers eded by statute on other grounds , Ryan v. City of Providence , 11 A.3d 68, 73

- 74 (R.I. 2011). I t 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 recognize d 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) ; s ee 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 s tructure in common law England. See Rhode Island Bar Associa tio n v. Automobile Service Ass ociation , 55 R.I. 122, 132

- 33, 179 A. 139, 1 43

- 44 (1935).- 16

- admission. ”) ; s ee 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 attorney s admitted to the Rhode Island B ar.”). 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, a rticle 5 of the Rhode Island Constitution was amended to provide that the powers of the Rhode Island
governm ent 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 depa rtment, 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 expl icitly 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. a t 935

- 36, the separation of powers amendments reinforced the judiciary’s previously recognized plenary powers, including the power t o 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 practic e of law. This includes appoint ing

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 C ourt to regulate and discipline members of the bar); G.L. 1956 § 7

- 5.1

- 2(2) (identifying the Supreme C ourt 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).- 17

- disciplinary c ounsel, cre ating the b oard 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 c ounsel 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 maintain s that the General Assembly has not delegated the subpoena power to the Supreme Court.
We ca n fin d no legitimate basis for r espondent’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 evid ence * * * ”) (quoting United S t ates v. Nixon , 418 U.S. 683, 709 (1974))

. The C ourt, the b oard, and lawyers licensed to practice in Rh ode Island, as officers of the C ourt, 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, r espondent’s contention that this C ourt’s appointm ent of an A ssistant Disciplinary C ounsel 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 misgu ided. In that matter, at the request of the House- 18

- 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 17 6

- 77, 1 80. The justices reasoned that, under the principle of separation of powers, the legislation impermissibly encroached upon the power of the judiciary a nd threatened its independence. See id. a t 1 78

- 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 C hief Justice “threaten[ed] the institutional inte grity 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 d iscretion 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. C onst., art. 9 , sec. 12. In contrast , the role and function of disciplinary c ounsel 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 resor t 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- 19

- disciplinary procedures that allow initi al screening and review by th e board, with the assistance of Disciplinary C ounsel, in order to safeguard the due process rights of attorneys subject to discipl ine . 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 r espondent further argues that this Court does not have jurisdiction over attorney conduct outside of the Supreme Court ’s proceedings and, specifically, that attorney cond uct in the Wo rkers’ Compensation Court, the F ederal Bankruptcy C ourt, and “professional offices” falls outside of this Court’s jurisdiction. The r espondent’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 r espondent’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 a nd supervise the practice of law generally, whether in or out of court

. ” Rhode Island Bar Ass ociation , 55 R.I. at 129

- 30, 179 A. at 142 (emphasis added). Especially considering how few attorneys c ome before the Supreme Court and how infrequent such appear ances 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 his torically 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- 20

- 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 an d 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 su ch 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 Co urt may investigate and discipline attorne y conduct regardless of where that conduct takes place

. Attorneys licensed i n Rhode Island are held to the same professional standards whether they are practicing in th e Workers’ Compensation C ourt, in an other sta te court, or in a local federal court. Indeed, this
Court has regularly applied Rhode Island’s Rules of Professional C onduct 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 submitt ed a materially false affidavit to the United States District Court for the District of Rho de Island ); In re Petition of Almond , 603 A.2d at 1087 , 1090 (denying a federal prosecutor’s petition for waiver o f Article V, Rule 3.8 of the Supreme Court Rules of P rofe ssional C onduct , which had been based on his contention that

16 See Rhode Island Bar Ass ociation , 55 R.I. at 134

- 35, 179 A. at 144

- 45 for a n 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 Ass ociation , 55 R.I. a t 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. B osworth , 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”).- 21

- 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

. T here 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 C onduct (and any additional standards of conduc t 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 or der to practice in the federal Bankruptcy C ourt 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 int erruption from this Court, the board, or Disciplinary- 22

- C ounsel. Nor has r espondent contende d that any specific dis ciplinary charge or applicable R ule of Professional C onduct interferes with a particular federal rule or law. Accordingly, for the reasons stated above, this Court may exercise jurisdiction over attorney disciplin ary matters gener ally , and over r espondent specifically. 2. Due Process The r espondent raises numerous concerns implicating his procedural due process rights under the fe deral 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 C o nduct, appo ints persons to the board, hires disciplinary c ounsel, and ulti mately determines whether and how to discipline an attorney for misconduct, this amounts to a constitutionally infirm merger of investigatory, prosecutorial, and adjudi catory functions so as to deny r espondent 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. A mend. XIV; R.I. C onst. art. 1, sec. 2. This Court has quoted the United States Supreme C ourt in explaining that “[ t]he Due
Process C lause provides th at certain substantive rights

— life , liberty, and property

— cannot be deprived except pursuant to constitutionally adequate procedures. The categories of substan ce and procedure are distinct.” Germane , 971 A.2d at 574 (quoting Cleveland Board o f Education v. Loudermill , 470 U.S. 532, 541 (1985)). “The guarantee of procedural due process assures that

18 The r espondent also contends that he was fined by the Workers’ Compensation Court without an evidentiary hearing. T his quest ion is not properly before this Court; review of that contention would require a writ of certiorari issued to the Appellate Division of the Workers’ C ompensation Court. See G.L. 1956 § 28

- 35

- 30; McGloin v. Trammellcrow Services, Inc. , 987 A.2d 881, 885 (R.I. 2010).- 23

- there will be fair and adequate legal proceedings, while substantive due process acts as a bar against ‘ certain arbitrar y, 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, 2 10 (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 whet her 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 sub stitute 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 M athews , 424 U.S. at 335). As to the first fac tor, it is undisputed that r espondent’s license to practice law in this state, which h as 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 M exico , 353 U.S. 232, 238

- 39 (1957) ; see also Mackey v. Montrym , 443 U.S. 1, 10 n.7 (1979)

. As t o the third factor, it appears r espondent does not dispute that the state has an in terest 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 r espondent appears to dispute, instead, which governmen t branch has authority to do so; this issue has been addressed supra .- 24

- life, liberty, or property be preceded by notice and opportunity for hearing appropria te to the nature of the case.” Germane , 971 A.2d at 579 (quoting Loudermill , 470 U.S. at 542 ); s ee In re Ruffalo , 390 U.S. 544, 550 (1968) (an attorney subject to dis cipline must be afforded fair notice of the charge and a meaningful opportunity to respond). Although r espondent contends that he was not able to “present evidence and argue law” and wa s denied a hearing by the full b oard, 20 it is indisputable th at r espondent was given a meaningful opportunity to be heard. A panel of the b oard convened and conducted eight hearings on this matter over an eight

- month pe riod, heard testimony from r espondent and other witnesses, admitt ed numerous exhibits from both D isci pli nary C ounsel and respondent, and gave

r espondent the opportun ity to present and argue numerous motions. The r espondent was also permitted to submit to the b oard a post

- hearing memorandum summarizing his position on the facts and law. Furthermore, due process does not require a hearing be fore the full b oard;
h eari ngs held before a panel of the b oard are appropriate to the nature of disciplinary matters.
S ee Barbe r v. Exeter

- West Greenwich School Comm ittee , 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 gua rantees 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 Associa tes 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 r e spondent has not alleged that he did not receive proper notice of the charges or hearing.- 25

- body’ does not amount to a denial of due process or signify that the agency’s structu re or operations is subj ect 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 ad ministrative process successfully on the grounds of a combination of incompatible functions, a respondent mus t 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 adminis trative agency that allot s ‘ the prosecutorial func tion to a staff of attorneys or other personnel who will not participate in the eventual decision, is a common and recommended feature of America n 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 aggress ive 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 28 5

. 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 attorne y disciplinary rules,- 26

- appoints board members, and hires disciplinary c ounsel to enforce these rules is typical of administrative enforcement. 21 There is absolutely no ind ication from this Court ’s Rules of Disciplinary P rocedure 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 o f unfairness intolerably high. All investigations, whether upon complaint or otherwise, are initiated and conducted by Disciplinary C ounsel who presents r ecomme ndations to the b oard b ut does not participate in the b oard’s decision. See Rule 6 (a) , (b). Furthermore, the b oard may commence formal proceedings only after a screening panel finds probable cause to believe the respondent

- attorney is guilty of misc onduct (although a respondent

- attorney may demand f ormal 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, In c. , 419 A.2d at 285 (quoting Withrow , 421 U.S. at 47 ). Additionally, the b oard’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 attor ney misconduct, i t is the responsibility of the b oard to recommend a sanction, including , but not limited to , public cen sure, suspension, or disbarment; however, the board’s decisions are not final and it lack s enforcement authority. See Rules 4 and 6(d). Because of the b oard’s limited authority, this Court is obligated to review the record a nd the evidence adduced by the b oard , in order to enter an appropriate order

. S ee Rule 6(d). Any proceedings before this
Court are to be conducted by Disciplinary C o unsel, 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 is sue its own rules and regulations and to hire and appoint enforcement personnel, and establishing a process of adjudication of disputed enforcement actions).- 27

- adversarial and adjudicatory functions. S ee id

. Accordingly, we are not persuaded by

r espondent’s apparent argument that the procedures utilized result in a merger of investigatory, prosecutorial, and adjudicat ory 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 C ourt, claiming a procedural due process violation and a violation of the Code of Judicial Conduct based on allegatio ns of personal hostility toward

— and bias against

— him by members of this Court

. He asserts three bases for these allegat ions: (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 Cou rt

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

. ” As mentioned above, t he due process clause “entitles a person to an impartial and disinterested tribunal.” Marshall v. Jerrico, Inc. , 446 U.S. 238 , 2 42 (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 presumpti on may be overcome through evidence that ‘ the same person(s) involved in building one party’s adversarial case is also adjudi cating the determinative issues’ or if ‘ other special circumstances render the risk of unfairness intolerably high. ’ ” Champlin’s R ealty Associates , 989 A.2d at 443 (quoting Kent County Water Authority v. State (Department of Health) , 723 A.2d 1132, 1137 (R.I. 1999))

.- 28

- Likewise, A rticle VI of the Supreme Court Code of Judicial Conduct requires that judges

“ avoid impropriety and the appearance of impropriety in all of [ the ir] activities” and “ perform the duties of judicial office impartially and diligently .” Code of Judicial Conduct Canons 2, 3. Thus, “ j udicial officers are duty

- bound to recuse themselves if they are ‘ unable to rende r 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 c ode p rovides that “[a] judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality m ight 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, 9 99 (R.I. 2011) (quoting Ryan , 941 A.2d at 185). “ T he 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] impartia lity seriously and to sway his or her judgment.’” Id. (quoting Mattatall v. State , 947 A.2d 896, 902 (R.I. 2008)).
Here , r espondent has failed to provide any facts that would demonstrate either bias or the appearance of bias. First, a s explained above, th is Court ’s appoin t ment of Assistant Disciplinary Counsel does not constitute a structural defect in viol ation of the due p rocess clause ; and, for the- 29

- same reasons, it does not present an issue of bias warranting recusal. Second , res pondent appears to assert that the j ustices of this Court harbor persona l animus toward s him because th e retired Chief Justice serves the Cour t in the capacity of a n appellate mediator and is “friendly” with members of the Court. A ssuming , 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, resp ondent implies that the current Chief Justice of this Court may harbor bias against responde nt 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 hav e 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 t his case respondent has simply failed to establish any fact s 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, r espondent 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 c ounsel] who was hired by this Court

22 The member of the panel in question was not appointed to the position.- 30

- 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 sp eech and legitimate petitioning’ under the United States and Rhode Island Constitutions ‘ by granting those activities conditional immunity from puniti ve 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 i mmune 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 ) ).
Th e purpose and application of the anti

- SLAPP statute are wholly inapplicable to

attor ney disciplinary proceedings. The r espondent is not being sued for his exercise of First Amendment rights of free speech; rather, h e is the subject of a disc iplinary complaint , der iving from his conduct as a licensed attorney, brought by D isciplinar y C ounse l under the rules of this Court after a thorough investigation

. We find no merit in r espondent’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 applicabil ity to this type of proceeding. Accordingly, we deny respondent’s motion to stay these pr oceedings pursuant to § 9

- 33

- 2

. D The Disciplinary Board’s Findings In addressing the b oard ’s findings on the four counts, we begin by notin g that no client has brought this complaint, and there is no allegation that respondent ever improperly accessed- 31

- any client funds . That is one circumstance that sets this apart from m any of the discipli nary cases that make their way to this Court . However, i t is the responsibility of this Court to give force and effect to all of the R ules of P rofessional C onduct. 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 M ulti

- 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 R ules of P rofessional C onduct, 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 o ffice of attorney and counselor [ I ] will do no falsehood, nor consent to any being done; [ I ] will not wittingly or willingly p romote, 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 r espects 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 c ourt as to [ my ] client; and that [ I ] will support the constitution and laws of this s tate, and the c onstitution and laws of the United S tates. S o 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 obser ve 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

.- 32

- We do not question respondent ’s fidelity to the c onstitution

— 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 persisten t, intentional , and repeated violations of the Rules of Professional Conduct. Neither can we hold young attorne ys 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 summarizi ng the hearing s before the panel, respondent stat ed 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 per son “ 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 (10 th 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 jud icial 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 c o - operation [were]- 33

- 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 r ule. 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 princip le 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 a n 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 45 7

- 5 8. It is clear that respondent’s actions in Workers’ Com pensation Court were not candid and not directed towards the truth, however literally true some of his responses may have been

— e.g. ,- 34

- “I live in a house.” We are further troubled by responden t’s conduct in Bankruptcy Court

. W e 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 in formation in his answer to the complaint objecting to d ischarge , constitute d 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 regard ing 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 pr esented in this case, and which we find established by clear and convincing evidence, would occur without a mindset purposely predisposed to preventing th e disclosure of assets which [r espondent ] deliberately attempted to hide from creditors, including the Bankruptcy Trustee.” Furthermore, a reading of the Workers’ Compensation Court transcript s , containing respondent’s painfully repetitive arguments and his steadfast resistance to the procedural boundaries of the proceedings, shows conduct clearly inte nded 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 re ceiving an order of this Court explicitly prohibiting respondent from practicing law as an LLC, he continued to us e a bank account under the name of the LLC. H e 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 responde nt’s justifications and excuses for these actions

were “palpably disingenuous.”- 35

- Additionally, we concur with the board’s finding that respondent’s failure to provide the records requested through Assistant Disciplinary Counsel’s subpoena constitute d a vi olation 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 Co unsel 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 t o 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 discre tion 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, 53 0 (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 t he se 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- 36

- 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, t he record before us clearly ill ustrates 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 mis conduct, respondent reminds us that no client has brought a complaint against him. Unfortunately, t hat is not particularly relevant; the simple fact is that respondent was representin g himself when the conduct that is the basis for the disciplinary action took place. The Rules of Pr ofessional Conduct are in place not solel y to protect individual clients but also to protect the integrity of the judicial system itself. We would not be true to our duty of safeguard ing the integrity of the profession if we w ere 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- 37

- clients and the bar , including his par ticipation 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 attri butes will be employed more appropriately

. V C onclusion For the reasons s tated 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 th e orderly transfer of the respondent ’ s client matters to new co unsel

. At the conclusion of this one

- year period of suspension, the respondent mu st 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 respectful ly 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 under take 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 res pond 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.- 38

- Having carefully reviewed the entire record in this proceeding and in light of t he 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 discipli ne. 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 beca use 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 pr actice 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 deci sion 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
Co unsel. 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- 39

- recommendation of public censure for an attorney who filed a fal se 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 a uthority 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 imp osing 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 g enerally 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 u ltra 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 lawy er, 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 re spondent toward anyone connected with the investigation and prosecution of this case, including the chair of the- 40

- 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 h is 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 whi ch 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 perform ed 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 Ass istant 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 t hen 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 S upreme 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.)- 41

- In my opinion, the fact that Assistant Disciplinary Counsel resorted to issuing subpoenas for respondent’s ba nk records is of no moment to this discussion. The r espondent 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 recommen dation 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 violatio n 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 FEDE RAL 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- 42

- 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 nausea m . 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 C ounsel, 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- 43

- 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 in troduce, 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 Ch air 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 mul titude 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 subpo ena 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 p owers 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.”- 44

- 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 serv e 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 tha t 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 respond ent 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’ C ompensation 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 cer tified 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 McK enna Support Services, LLC constitutes the practice of law as a n 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.- 45

- 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 Bank ruptcy 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 faile d 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 P robate 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 e ven 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 ad mit 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 disc lose under sworn- 46

- 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 “enga ged 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 offer ing 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 an d 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 la wyers 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- 47

- 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 a nd 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. S ee 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 disc iplinary 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 bring s 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 becau se 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 questi ons. The board found that respondent was “deliberately and unnecessarily disruptive and dilatory, disrespectful to the [c]ourt[,] including the judge and opposing counsel,- 48

- 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 recom mendations 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 b oard failed to set forth any discussion of its reasons for rejecting the recommendation and instead recommend ed 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 length y 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 injur e 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 just ice of the Superior Court and other members of the bar. Id

. at 328

- 30.- 49

- 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 righ ts 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[,]” i d

. at 330, are relevant to this analysis. In conclusion, it is my opinion that the san ction recommended by the b oard, 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 su ggests, 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 Co urt’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 subpo ena. This Court has never overlooked an attorney’s refusal to produce records sought by
D isciplinary C ounsel. 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 shoul d not be readmitted u ntil he complies with Rule 1.19.

### R HODE 

### I SLAND 

### S UPREME 

### C OURT 

### C LERK 

### ’ S 

### O FFICE 

### Clerk’s Office Order/O pinion Cover Sheet

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

. CASE NO : No. 20 1 4

- 148

- M.P. (DSC

- 2012

- 04) COURT: Suprem e Court DATE ORDER FILED: February 2 7 , 2015 JUSTICES: S uttell, 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