STATE OF MINNESOTA
IN SUPREME COURT
A24-1567
Original Jurisdiction Per Curiam
In re Petition for Disciplinary Action
against Kassius O. Benson, a Minnesota Filed: July 29, 2026 Attorney, Registration No. 0266632. Office of Appellate Courts
Susan M. Humiston, Director, Timothy M. Burke, Senior Assistant Director, Office of Lawyers Professional Responsibility, Saint Paul, Minnesota, for petitioner.
Kassius O. Benson, Minneapolis, Minnesota, pro se; and
Melvin Welch, Welch Law Firm, LLC, Minneapolis, Minnesota, for respondent.
SYLLABUS
Disbarment is the appropriate discipline for an attorney who was convicted of
felony tax evasion arising out of the practice of law and who intentionally
misappropriated client funds, where multiple factors aggravated his misconduct.
Disbarred.
OPINION
PER CURIAM.
The Director of the Office of Lawyers Professional Responsibility brought a
petition for disciplinary action alleging that respondent Kassius O. Benson violated the
1
Minnesota Rules of Professional Conduct by (1) committing the federal felony offense of
failing to account for and pay over employment taxes, in violation of 26 U.S.C. § 7202,
for which he was convicted and sentenced in May 2024, and (2) misappropriating funds
from a private client’s family in a criminal case. A referee concluded that Benson
committed the misconduct alleged in the petition and that the misappropriation was
intentional, and found several aggravating factors and one mitigating factor. Benson does
not meaningfully dispute the referee’s factual findings with respect to the alleged rule
violations. Thus, the only question before us is the appropriate discipline to impose.
Because felony tax misconduct and intentional misappropriation are among the most
serious types of attorney misconduct and because there are aggravating factors, we
conclude the appropriate discipline is disbarment.
FACTS
Benson was admitted to practice law in Minnesota in 1996. After serving as a
public defender for several years, Benson opened a private criminal defense firm which
he operated until he became Hennepin County’s chief public defender in January 2021.
Benson has a limited disciplinary history of prior misconduct arising out of his
private law practice. In July 2015, the Director issued Benson an admonition after finding
that he had failed to adequately communicate with a client, failed to deposit an advance
fee paid by the client into a trust account, and improperly described his fee as “earned
upon receipt” in the fee agreement. See Minn. R. Prof. Conduct 1.4 (general client
communication), 1.5(b) (communication with client regarding fees), 1.15(c)(5)
(depositing advance fees received into trust). In November 2019, the Director issued
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Benson a second admonition for failing to deposit another client’s flat fee into a trust
account in the absence of an appropriate written fee agreement, failing to clearly
communicate the basis of his fees to the client, and ignoring repeated requests to provide
the client with a copy of his file following termination of the representation. See Minn. R.
Prof. Conduct 1.15(c)(4), 1.16(d).
The Director’s current petition alleges two separate counts: one based on Benson’s
tax conviction and the other for misappropriating funds belonging to a private client’s
family. We briefly describe the facts relevant to each count before reviewing the
disciplinary proceedings below.
Felony Tax Misconduct
Benson started a private criminal defense firm, Kassius Benson Law, in 2002 and
was the firm’s managing partner and sole shareholder. Although Benson initially operated
as a solo practitioner, he eventually hired associates to enable the firm to take on more
clients. Beginning in 2013, Benson failed to pay federal taxes that he withheld from these
employees’ salaries. In 21 of 24 quarters in tax years 2013 and 2015–2019, Benson either
did not pay the full amount the firm owed to the IRS or failed to file the firm’s quarterly
federal income tax returns entirely. Over these six years, Benson withheld, but did not
pay to the government, a total of $159,270.28 in employment taxes. Benson also
represented on his 2017–2019 personal tax returns that the firm had withheld and paid
over taxes on his personal income, which he knew to be false. In total, Benson owed the
IRS $213,591.81 in unpaid taxes. Instead of paying federal taxes, Benson used the money
he withheld from employees’ salaries to pay his own personal and business expenses.
3
Benson took office as Hennepin County’s chief public defender on January 1,
2021. Sometime in 2022, Benson came under federal investigation for failure to pay to
the government the employment taxes he withheld while in private practice. Benson
resigned from the public defender’s office in October 2022 after news of the investigation
became public, citing potential “distractions” for the office. He was formally indicted on
federal tax charges on February 9, 2023.
On December 4, 2023, Benson pled guilty to one count of failing to account for
and pay over employment taxes in violation of 26 U.S.C. § 7202, a felony offense. In
Benson’s sentencing briefing, his attorneys asserted that his failure to pay employment
taxes resulted from his inattention and financial mismanagement as the firm grew.
Benson’s briefing noted that he chose to do the firm’s accounting himself using “lowcost” software rather than hire an employee to administer payroll. Yet, according to
screenshots submitted by the Director, the software clearly (1) showed that the firm had
not filed required quarterly returns, (2) displayed the amounts the firm owed to the IRS,
and (3) provided options to populate and e-file required tax forms and make required
payments. Benson’s briefing also advanced the prospect of Benson’s inevitable
professional discipline as a reason for leniency in his criminal case. Many of Benson’s
friends and former colleagues sent letters of support to the sentencing judge emphasizing
Benson’s positive contributions to the bar; his commitment to criminal defense, diversity,
and mentorship; and the personal impact of the charges on Benson. The court entered a
judgment of conviction and sentenced Benson to three years’ probation, a significant
downward departure from the United States Sentencing Guidelines range of an executed
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sentence of 8 to 18 months in prison. The court also ordered Benson to pay $213,591.81
in restitution.
Intentional Misappropriation of Client Funds
On December 30, 2020, approximately three years before he pled guilty to the
federal tax offense, T.A. and M.A. retained Benson to defend their son, A.A., against
federal felony charges. Although A.A. was not a minor, his parents served as his legal
guardians because of his significant disabilities. A.A.’s parents lived on a modest income
and supported five other children. A.A. was initially represented by a public defender, but
T.A. and M.A. became concerned with the quality of his representation. Because the
maximum sentence for A.A.’s charges was over 50 years in prison, his parents decided to
hire Benson instead. They took out a second mortgage on their home to pay his $40,000
flat fee.
Two days after A.A.’s parents hired Benson, Benson became Hennepin County’s
chief public defender. While in that position, Benson continued to represent A.A. and
several other private clients.1
On October 13, 2021, shortly before A.A.’s scheduled trial date, Benson emailed
T.A. asking for an additional $12,500 in costs related to the representation. Benson’s fee
agreement described his flat fee as “preliminary” and authorized him to charge additional
fees if a matter became more complex. Benson explicitly told T.A. that $7,500 of the
additional money would cover “dispositional / mitigation specialists” and the other
1
The Director does not allege Benson acted inappropriately by continuing to represent these private clients after becoming Hennepin County’s chief public defender.
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$5,000 would cover “trial expenses.” T.A. understood this to mean that Benson needed
this money to get A.A. the best possible outcome at trial. T.A. and M.A. took out a bank
loan—on top of the second mortgage—to come up with the additional $12,500 Benson
requested, which caused the family considerable financial hardship.
T.A. transferred $12,500 to Benson’s law firm’s operating account in two
payments, dated October 15 and 18. Rather than deposit these funds into a trust account,
Benson used the money for various personal and business expenses. On October 19, one
day after T.A.’s second payment, only $22.38 remained in the firm’s operating account.
By October 22, the account balance was negative. According to bank records for the
firm’s operating account, Benson made several ATM withdrawals, each for at least $300,
spent over $500 at various retail stores and over $150 at a liquor store, and transferred
$3,824 to a personal bank account using an online payment platform. He also used the
firm’s operating account to pay $5,250 in rent on his home and $523 to a self-storage
business. Nearly all of these transactions occurred on October 15 and 18, the same days
T.A. made the payments.
A.A.’s case never went to trial. On November 12, 2021, A.A. entered into a plea
agreement with the government and was later sentenced to 25 years in prison. Benson did
not use any of the $12,500 towards experts, specialists, or trial expenses, and he did not
return any money to T.A. once the representation ended.
After learning of Benson’s tax charges through the news, T.A. filed a complaint
with the Director alleging that Benson never returned her money and had instead used it
to cover his own legal expenses in connection with the investigation. The Director’s
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office notified Benson of the complaint through counsel on April 27, 2023. Benson made
no effort to contact T.A. until August 2023—nearly two years after A.A. pled guilty—
when he returned $6,250 to her via money order. Benson later referenced the money in an
email he sent T.A. on September 18, 2023, stating: “I hope to get you the remainder of
the refund by September 30. I will notify you immediately if anything changes. This is a
definite priority.” On November 7, 2023, T.A.—having received no additional money or
follow-up communication from Benson—replied expressing frustration that Benson had
not “follow[ed] through with the plan as stated” and asking him to contact her “as soon as
possible to confirm the delay and confirm how soon [the money] will be sent.” Benson
did not respond or contact T.A. for over eight months, until after his criminal charges
were adjudicated.
About a month after his sentencing, in a June 17, 2024 email, Benson proposed
repaying the remaining $6,250 to T.A. in three installments, with the final payment due
August 1. Benson attributed his delay in repaying T.A. as “due to ongoing matters of
which you are aware.” Benson apologized for the delay and indicated that he was “now in
a better position to take care of this outstanding debt.” T.A. received the remainder of her
money, plus roughly $1,400 in interest, on either August 7 or 8, 2024.
Disciplinary Proceedings
Shortly after Benson repaid T.A., the Director initiated this disciplinary action. A
referee held an evidentiary hearing on January 27, 2025, at which Benson and T.A.
testified. T.A.’s testimony primarily set out the circumstances of the misappropriation
described above. T.A. also testified that coming up with the additional $12,500 Benson
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requested created significant hardship for her family; T.A. was unable to work full-time
while caring for her children and had to take out a bank loan, on top of the second
mortgage for Benson’s initial fee, to pay him. T.A. stated that she was shocked,
disappointed, and “heartbroken” by the ordeal.
At the hearing, Benson did not contest the factual allegations in the Director’s
petition but at times disagreed with the Director’s characterization of these facts. On
cross-examination, Benson admitted that he should have deposited T.A.’s $12,500 into a
trust account but failed to do so, and that he never hired the experts nor incurred the
expenses he claimed the funds would cover. Benson also admitted that it did not occur to
him to repay the money until after he received the Director’s notice of T.A.’s complaint;
he testified that, in fact, the complaint “surprised” him. While acknowledging that it was
“not her responsibility,” Benson remarked that T.A. could have asked him to return the
money during conversations they had around the time of A.A.’s sentencing, but she did
not. And although Benson initially testified that the $7,500 he claimed would pay for a
mitigation specialist “should have been put into a trust account,” he also seemed to
suggest that he earned—or at least was not required to deposit into trust—$5,000 of this
money that he earmarked for “trial expenses.” Prompted by the referee, Benson testified
that it was “debatable” whether the Rules required him to deposit that $5,000 into a trust
account because “there was more additional things to do when we were preparing for
trial.” Benson insisted, however, that he was not “sitting here trying to debate” that, and
that he never intended to keep T.A.’s money. Rather, he suggested that his failure to
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timely repay T.A. was due in part to his own financial difficulties caused by his
investigation and eventual indictment.
Although Benson attempted to minimize or deflect blame for his misconduct, he
also repeatedly acknowledged wrongdoing. For example, Benson testified that the money
“should have been available to give back to [T.A.],” and explained, “I was wrong for
that .… [I]t’s unfortunate that she has a different view of myself and also lawyers in
general. I regret that.” Benson also accepted responsibility for the tax misconduct that led
to his felony conviction. He testified: “As far as remorse goes, I definitely have remorse
and feel the consequences. I’ve had consequences in the felony case. I will have
consequences obviously with licensing. However that turns out.” But while Benson
briefly apologized to T.A., most of his testimony as to why less severe discipline was
warranted focused not on remorse for the effect his actions had on others, but on how his
career, service to clients, and dedication to training early-career public defenders should
mitigate his misconduct.
As to the A.A. matter, the referee concluded that Benson intentionally
misappropriated client funds in violation of Minn. R. Prof. Conduct 1.15(a) and 8.4(c) by
receiving client money for a stated purpose, failing to deposit that money into a trust
account, and instead using the money for business and personal purposes.2 The referee
2
Rule 1.15(a) provides, as a general rule, that “[a]ll funds of clients or third persons held by a lawyer or law firm in connection with a representation shall be deposited in one or more identifiable trust accounts.” Rule 8.4(c) states that “it is professional misconduct for a lawyer to … engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.”
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further concluded Benson’s failure to return these funds at the end of representation and
again when requested to do so by T.A. violated Minn. R. Prof. Conduct 1.15(c)(4) and
1.16(d).3 The referee also noted that Benson did not return T.A.’s money until after he
had received notice of the Director’s disciplinary investigation.
Addressing Benson’s felony tax conviction, the referee relied on Rule 19(a), Rules
on Lawyers Professional Responsibility (RLPR), to conclude that Benson’s misconduct
violated Minn. R. Prof. Conduct 8.4(b) and (d).4 See Rule 19(a), RLPR (stating that a
lawyer’s criminal conviction in any American jurisdiction is conclusive evidence that the
lawyer committed the misconduct for which he was convicted). The referee found four
aggravating factors: that Benson had (1) a selfish motive in converting T.A.’s money and
employees’ taxes he had withheld to personal use, (2) substantial experience in practicing
law, (3) a history of prior discipline for similar misconduct, and (4) a lack of remorse.
Considering Benson’s remorse, the referee found that Benson’s limited expressions of
regret for the harm he caused T.A. and her family were “insincere, contrived, and not
credible.” The referee further found that Benson failed to demonstrate genuine remorse
3
Rule 1.15(c)(4) requires a lawyer to “promptly pay or deliver to the client or third person as requested the funds, securities, or other properties in the possession of the lawyer which the client or third person is entitled to receive.” Similarly, Rule 1.16(d) requires that, “[u]pon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interests, such as … refunding any advance payment of fees or expenses that has not been earned or incurred.”
4
These rules provide: “It is professional misconduct for a lawyer to … commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects” or “engage in conduct that is prejudicial to the administration of justice.” Minn. R. Prof. Conduct 8.4(b), (d).
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for the tax misconduct that led to his felony conviction, instead showing “a remarkable
lack of insight into understanding the substantial harm that he has caused.” The referee
considered Benson’s professional contributions—including his work with the public
defense bar and pro bono service—to be a mitigating factor, but ultimately concluded that
this “positive is overshadowed by his substantial ethical failures that occurred over many
years and devast[at]ed many people.”
The Director argued—and the referee agreed—that Benson should be disbarred.
The Director now requests that we impose disbarment. For his part, Benson does not
dispute the rule violations, but challenges several of the referee’s findings and
conclusions that bear on the appropriate discipline. Thus, the only issue before us is what
discipline to impose. See In re Lieber, 939 N.W.2d 284, 291 (Minn. 2020) (noting that we
consider challenges to a “referee’s findings and conclusions about certain aggravating
and mitigating factors” as “part of our analysis on the appropriate discipline”).
ANALYSIS
Because Benson timely ordered a transcript of the evidentiary hearing, “none of
the [referee’s] findings of fact or conclusions shall be conclusive.” Rule 14(e), RLPR. We
nonetheless give “great deference” to the referee’s findings and conclusions and will
uphold them if “they have evidentiary support and are not clearly erroneous.” In re
Kaminsky, 999 N.W.2d 866, 873 (Minn. 2024) (citation omitted) (internal quotation
marks omitted). In deciding what discipline to impose, we place “great weight on the
referee’s recommended discipline” but “retain ultimate responsibility for determining the
appropriate sanction.” In re Nwaneri, 896 N.W.2d 518, 525 (Minn. 2017). To reach that
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determination, we consider four factors: (1) the nature of the attorney’s misconduct,
(2) the cumulative weight of the disciplinary violations, (3) the harm caused to the public,
and (4) the harm caused to the legal profession. In re Matson, 889 N.W.2d 17, 23 (Minn.
2017). We next consider any aggravating or mitigating factors. In re Hansen, 868 N.W.2d
55, 59 (Minn. 2015). Finally, we look to similar cases to ensure consistency in discipline
for like misconduct, but proper discipline is ultimately determined “based on the unique
facts and circumstances of each case.” Matson, 889 N.W.2d at 25 (citation omitted)
(internal quotation marks omitted). When considering the appropriate sanction, we bear
in mind that the purpose of discipline is not to punish the attorney but rather “to protect
the public, to protect the judicial system, and to deter future misconduct by the
disciplined attorney as well as by other attorneys.” In re Rebeau, 787 N.W.2d 168, 173
(Minn. 2010).
A.
We first consider the four factors bearing on the appropriate discipline.
1.
We begin with the nature of each type of misconduct. Here, Benson intentionally
misappropriated client funds in violation of Minn. R. Prof. Conduct 1.15 and committed
felony tax offenses in violation of Minn. R. Prof. Conduct 8.4.5 Intentional
misappropriation and misconduct committed in the practice of law that results in a felony
tax conviction are among the most serious types of attorney misconduct. See, e.g., In re
5
Benson does not dispute the referee’s conclusion that he committed this misconduct.
12
Rooney, 709 N.W.2d 263, 268 (Minn. 2006) (characterizing intentional misappropriation
as “serious misconduct that generally warrants disbarment”); In re Perez, 688 N.W.2d
562, 567 (Minn. 2004) (“We view felony convictions as serious misconduct ….”). The
referee and the Director therefore recommend that we disbar Benson.
Indeed, “[m]isappropriation alone usually warrants disbarment absent clear and
convincing evidence of substantial mitigating factors.” In re Padden, 10 N.W.3d 291, 299
(Minn. 2024) (citation omitted) (internal quotation marks omitted). Rule 1.15 requires a
lawyer to deposit fees received into a trust account and withdraw those fees only once
earned. Minn. R. Prof. Conduct 1.15(c)(5). We have held that intentional
misappropriation occurs when “funds belonging to a client are not deposited in a trust
account and are used for any purpose other than that specified by the client.” In re
Eskola, 891 N.W.2d 294, 299 (Minn. 2017) (citation omitted) (internal quotation marks
omitted). Benson intentionally misappropriated T.A.’s funds by explicitly requesting that
T.A. pay $12,500, in addition to his flat fee, for the stated purpose of covering anticipated
trial expenses, which Benson then kept for himself. Not only did Benson direct T.A. to
transfer these funds to the firm’s operating account and fail to hold them in trust, but he
also spent virtually all of this money on cash withdrawals, rent, purchases at retail stores,
and payments to himself on the very same days T.A. sent the payments. Moreover,
Benson never incurred the anticipated trial-related expenses, yet he failed to fully
reimburse T.A. until after T.A. filed a complaint with the Director’s office, over two-anda-half years later. See Minn. R. Prof. Conduct 1.15(c)(4), 1.16(d) (requiring attorneys to
“promptly” pay funds due to a client and, upon termination of the representation,
13
“refund[] advance payment of fees or expenses that has not been earned”). As the
Director points out, all this occurred while Benson was serving in a position of public
trust as Hennepin County’s chief public defender. This misconduct, alone, is serious.
But Benson was also convicted of a felony for failing to account for and pay over
employment taxes arising out of his law practice. The presumptive discipline for this
misconduct, as with intentional misappropriation, is also disbarment. In re McNeilly,
18 N.W.3d 774, 780 (Minn. 2025) (“The presumptive discipline for a felony conviction is
disbarment, particularly where the criminal conduct occurs (as in this case) within the
practice of law.” (citation omitted) (internal quotation marks omitted)). Over a period of
six years, Benson knowingly failed to pay over more than $150,000 in withheld
employment taxes and, on his personal income tax returns, falsely claimed that he had
paid employment taxes on his own salary. In his sentencing briefing for his criminal trial,
Benson’s attorneys noted that he chose not to hire an employee to administer payroll for
the firm but instead opted to do the firm’s accounting himself to free up resources for
client representation. Yet Benson’s accounting software clearly indicated that the firm had
not filed required federal tax forms. It also calculated and displayed the amount due for
each quarter, provided options to populate and e-file these forms, and linked to an online
payment platform for making the required payments. Benson knew of his obligation to
pay taxes and had ample opportunity to do so; he instead chose to use the withheld tax
money for personal and business purposes. This misconduct, which led to a felony
conviction, arose out of and was directly related to Benson’s legal practice. See In re
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Andrade, 736 N.W.2d 603, 605 (Minn. 2007) (noting that a felony conviction is
especially serious “where the criminal conduct occurs … within the practice of law”).
As in In re McNeilly, where the lawyer committed intentional misappropriation
resulting in a felony theft conviction, “the nature of [Benson’s] misconduct weighs
heavily in favor of a severe sanction.” 18 N.W.3d at 780.
2.
Next, we consider the cumulative weight of Benson’s disciplinary violations.
Generally, we differentiate between “a brief lapse in judgment or a single, isolated
incident and multiple instances of misconduct occurring over a substantial amount of
time.” In re Pearson, 888 N.W.2d 319, 322 (Minn. 2016) (citation omitted) (internal
quotation marks omitted). Thus, the cumulative weight and severity of multiple violations
may compel severe discipline “even when a single act standing alone would not have
warranted such discipline.” In re Oberhauser, 679 N.W.2d 153, 160 (Minn. 2004). Here,
we agree with the referee that Benson’s tax misconduct was not an isolated act. Rather,
Benson failed to pay employment taxes owed to the federal government repeatedly over a
substantial period of time—Benson underpaid or entirely failed to pay withheld taxes in
nearly every quarter of tax years 2013 through 2019.
Benson’s misappropriation—which occurred two years after the conduct for which
he was convicted of the federal tax offense—fits this same pattern of financial
misconduct. After securing funds from T.A., Benson repeatedly ignored or failed to
timely respond to communications from her regarding the money and ultimately failed to
fully reimburse her for more than two-and-a-half years after receiving payment. In both
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instances of misconduct, Benson wrongfully kept and knowingly spent money that was
not his. The cumulative weight of Benson’s misconduct paints a troubling picture of an
attorney who repeatedly placed his own financial wants and needs over his legal
obligations and fiduciary duties to his client. This, too, warrants a severe sanction.
3.
Finally, we evaluate the harm the misconduct caused to the public and the legal
profession. Matson, 889 N.W.2d at 24. Here, the referee found that Benson’s tax
misconduct caused substantial harm to the public and the Hennepin County Public
Defender’s Office. He also found that Benson’s misappropriation caused serious financial
and emotional difficulties for T.A. and her family.
Before us, Benson challenges only the referee’s finding that his tax misconduct
harmed the public defender’s office, which we review for clear error. See Kaminsky,
999 N.W.2d at 873 (stating that we uphold a referee’s factual findings when they have
evidentiary support in the record and are not clearly erroneous). In making this
determination, the referee stated that Benson’s misconduct harmed the public defender’s
office, in part, because “[w]hen Respondent was indicted for this misconduct, he was the
Chief Public Defender for Hennepin County.” Benson is correct that this specific factual
finding was clearly erroneous—Benson resigned as chief public defender in
October 2022, but was not indicted until February 2023. But the referee’s overall
conclusion that Benson’s misconduct and the resulting investigation, indictment, and
conviction caused harm to his previous office was correct. In his sentencing briefing and
before the referee, Benson admitted that his legal problems had (or threatened to have)
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negative impacts on the work of the Hennepin County Public Defender’s Office. Benson
told his sentencing judge that he voluntarily resigned as the chief public defender after
the Director’s investigation “came out publicly” because “[h]is legal problems threatened
to distract from the important work” of the office. Benson offered the referee the same
explanation for his resignation. Equally important, the referee noted that the position of
chief public defender is one of public trust. Thus, the referee could have readily
concluded—based on the record as a whole—that the widely publicized investigation into
the chief public defender for federal tax crimes harmed the public’s perception of and
trust in the office, even if the investigation did not directly interfere with Benson’s work.
Finally, although the referee did not specifically note it, Benson placed considerable
weight on his efforts to improve training and diversity at the public defender’s office
when arguing for mitigation. Yet he fails to appreciate how his abrupt resignation could
have jeopardized those efforts and impacted his colleagues’ day-to-day work. For these
reasons, we conclude that the referee’s finding that Benson’s tax misconduct harmed the
public defender’s office has ample evidentiary support in the record and therefore was not
clearly erroneous. See id.
We also agree with the referee that Benson’s tax misconduct caused considerable
harm to the public. Put simply, Benson wrongfully kept over $200,000 of money owed to
the government for himself. And, as the referee noted, Benson’s felony tax misconduct
also “breach[ed] the trust established between employer and employee, and call[ed] on
governmental resources to enforce compliance with the law by those who are sworn to
uphold it.” In re Moulton, 721 N.W.2d 900, 905 (Minn. 2006) (citation omitted) (internal
17
quotation marks omitted) (imposing a 90-day suspension on an attorney who consistently
failed to timely file and pay over employment taxes but was not criminally prosecuted),
amended by In re Moulton, 733 N.W.2d 777 (Minn. 2007) (order).
We further agree with the referee’s determination that Benson’s misappropriation
caused T.A. significant financial and emotional hardship. T.A. and M.A. had taken out a
second mortgage on their home to pay Benson’s initial fee and had to take out another
loan to cover the additional $12,500 Benson requested for trial expenses. Benson’s failure
to timely repay T.A., coupled with her inability to work full-time, made it difficult for
T.A. to keep current on the family’s loan payments. In addition to these financial harms,
we recognize that failure to refund unearned fees can cause “delay, anxiety, distress, and
loss of faith in the legal system” for victims of misappropriation. In re McCloud,
26 N.W.3d 445, 454 (Minn. 2025) (citation omitted) (internal quotation marks omitted).
Indeed, T.A. reasonably testified that she was shocked, disappointed, and “heartbroken”
by Benson’s conduct.
For similar reasons, we agree with the referee’s finding that Benson’s misconduct
harmed the legal profession and “seriously damaged the reputation of the Minnesota
Bar.” We have held that “[m]isappropriation of client funds, by its very nature, harms …
the legal profession[] and the administration of justice.” In re Bradley, 7 N.W.3d 604, 609
(Minn. 2024) (citation omitted) (internal quotation marks omitted). Surely a prominent
attorney’s highly publicized conviction for felony tax crimes undermines the public’s
confidence in Minnesota’s public defender system and its perception of lawyers
18
generally. Benson’s harm to the public, T.A., and the legal profession weighs in favor of
severe discipline.
B.
Next, we consider whether aggravating or mitigating circumstances bear on the
appropriate discipline for Benson. Matson, 889 N.W.2d at 24–25. Here, the referee found
four aggravating factors: Benson’s history of prior discipline, his experience practicing
law, the selfish motive behind his misconduct, and his lack of remorse. The referee also
found Benson’s professional contributions, including his public service and pro bono
work, to be a mitigating factor, although not substantial enough to affect his ultimate
recommendation to disbar. Before us, Benson challenges the referee’s finding that he
lacked genuine remorse for his misconduct and appears to argue that the referee did not
give his professional contributions adequate weight as a mitigating factor. We review the
referee’s findings and conclusions related to aggravating and mitigating factors for clear
error and discuss each factor in turn. See In re Ulanowski, 800 N.W.2d 785, 801 (Minn.
2011).
1.
First, the referee did not clearly err in finding that Benson’s history of prior
discipline is an aggravating factor. We consider a history of prior discipline to be an
aggravating factor because we expect “a renewed commitment to comprehensive ethical
and professional behavior” after disciplinary proceedings. In re Nelson, 733 N.W.2d 458,
464 (Minn. 2007) (citation omitted) (internal quotation marks omitted). Prior discipline
for similar misconduct is especially concerning because “similarity of misconduct is
19
evidence of a lack of renewed commitment.” In re Klein, 609 N.W.2d 230, 233 (Minn.
2000).
Benson received an admonition in 2015 for failing to deposit client funds into a
trust account without an appropriate written fee agreement, failing to adequately
communicate with a client, and improperly describing his fee as “earned upon receipt” in
his fee agreement. In 2019, Benson received another admonition, again for failing to hold
an advance fee in trust, failing to clearly communicate the basis of his fees to a client, and
failing to timely return a client’s file upon termination of the representation despite
repeated requests. We agree with the Director that this carelessness with client funds and
failure to adequately communicate, especially regarding fees, is similar to Benson’s
misconduct in the matter regarding T.A.’s funds, albeit less severe. Moreover, much of
Benson’s misconduct in the tax matter occurred after he received the first admonition. His
misappropriation of T.A.’s funds occurred after both admonitions. Because Benson’s
misappropriation of T.A.’s funds and tax misconduct indicate that he did not renew his
commitment to ethical behavior following his admonitions, the referee’s conclusion that
Benson’s prior disciplinary history aggravates his current misconduct is not clearly
erroneous.
2.
Second, the referee properly found Benson’s substantial experience in the practice
of law, and criminal defense specifically, to be an aggravating factor. See In re Fett,
790 N.W.2d 840, 851–52 (Minn. 2010) (“[W]e have also considered the attorney’s
experience in a particular area of the law to be an aggravating factor when the
20
misconduct arises from that area of practice.”). At the time of his felony conviction,
Benson had practiced law for more than 25 years and had represented several clients
facing the exact same charges he faced in 2024. Benson also had nearly 20 years of
experience operating a private criminal defense firm at the time he represented A.A.
Thus, the record supports the referee’s conclusion that Benson’s significant experience in
relevant areas of law aggravates his misconduct.
3.
Third, the referee’s finding that Benson had a selfish motive in committing tax
evasion and misappropriation is not clearly erroneous. We recognize selfish and
pecuniary motives behind attorney misconduct as aggravating factors. See, e.g., In re
Harrigan, 841 N.W.2d 624, 630 (Minn. 2014) (noting that selfish motive was an
aggravating factor when the attorney misused client funds for personal expenses).
Although Benson initially maintained that he had no intention of keeping T.A.’s money,
he no longer disputes that he intentionally used T.A.’s money for his own purposes.
Benson’s bank records show that he spent T.A.’s money on various personal expenses on
the very same days that she sent payments to the firm’s operating account. Benson’s
responses to T.A.’s communications regarding a refund also suggest that he paid his own
expenses related to his criminal case rather than promptly returning T.A.’s money. Thus,
the record supports the referee’s finding that Benson’s misconduct had a selfish motive
because he converted T.A.’s money and the taxes he owed the IRS to “his own personal
and business use.” The referee’s conclusion that Benson’s misconduct resulted from a
selfish motive, which constitutes an aggravating factor, was not clearly erroneous.
21
4.
Fourth, we consider the referee’s finding that Benson lacked remorse for his
misconduct. “A lack of recognition by an attorney of their misconduct—and a lack of
remorse for such conduct—constitutes an aggravating factor.” In re Langree, 9 N.W.3d
159, 171 (Minn. 2024). “To express remorse, an attorney must express genuine regret and
moral anguish for his or her conduct and the effect it had on others.” In re Severson,
860 N.W.2d 658, 670 (Minn. 2015). Here, the referee found Benson’s limited expressions
of regret at his evidentiary hearing insufficient to show genuine remorse, and also found
that Benson demonstrated “a remarkable lack of insight into understanding the substantial
harm he has caused.” Benson argues these findings are clearly erroneous because the
evidence establishes that he accepted responsibility for his misconduct and acknowledged
wrongdoing throughout the sentencing hearing for his tax offense and in his testimony at
the evidentiary hearing in this case. He further argues that he has adequately
demonstrated remorse and that the referee should have instead considered this to be a
mitigating factor.
The record supports the referee’s findings that Benson lacked insight into the harm
his misconduct caused and that he did not express genuine remorse. First, the record
establishes that Benson did not appreciate his misconduct’s effects on others or on the
profession. Nothing in his testimony in this case or in the sentencing briefing in his
criminal case demonstrates that Benson understands the effects of his failure to pay over
$200,000 in taxes owed to the federal government, including the substantial public
resources that were necessary to investigate and prosecute him for that failure. See
22
Moulton, 721 N.W.2d at 905 (observing that “the failure to pay employer’s withholding
taxes is tantamount to taking employees’ money for the attorney’s own use, breaches the
trust established between employer and employee, and calls on governmental resources to
enforce compliance with the law by those who are sworn to uphold it” (citation omitted)
(internal quotation marks omitted)). And Benson demonstrated little appreciation for the
harm his tax misconduct caused the public defender’s office or the public’s perception of
the profession. Instead, Benson’s testimony focused on the effects his misconduct would
have on him—his criminal sentence, inevitable professional discipline, and loss of
reputation among friends, colleagues, and family. For example, Benson demonstrated a
lack of appreciation for the significance of his misconduct and the harm he had caused
when he testified at the evidentiary hearing in this case that he took the chief public
defender position despite the IRS’s civil audit because he only expected the audit to result
in “a bill.” That is perplexing because Benson knew his failure to pay was a felony—he
was an experienced criminal defense attorney who had represented at least five clients
charged with the same crime. And contrary to Benson’s suggestion that he resigned as
chief to protect the public defender’s office, he did not do so until several months after
learning of the criminal investigation, and then only after news of the investigation
became public. Considered together, Benson’s actions do not indicate that he understood
the consequences of his conduct, but instead that he thought he would suffer no
consequences at all. Thus, the Director’s characterization of Benson’s understanding of
the consequences as primarily “regret[ting] the consequences to himself” is a fair one.
23
Even before us, Benson quibbles with the referee’s minor factual error regarding
the timing of his resignation while completely missing the referee’s broader point that the
criminal case against Benson harmed the public defender’s office regardless of the stage
of the case when he resigned. Viewing the record as a whole, there is significant
evidentiary support for the referee’s finding that Benson did not appreciate the
consequences of his tax misconduct.
Benson’s conduct in the misappropriation matter tells a similar story. Benson knew
or should have known that T.A. would have significant difficulty coming up with the
additional $12,500 he requested for trial expenses because he knew that A.A. was initially
represented by a public defender and that T.A. had expressed concerns with the cost of
hiring a private defense attorney. Yet it did not occur to Benson to repay this money until
the Director notified him of T.A.’s complaint.6 Even after T.A. filed her complaint,
Benson only partially reimbursed her, ignoring T.A.’s follow-up communications for
nearly nine months. And he did not repay in full for more than two-and-a-half years after
the initial misappropriation—all while T.A. was struggling to make ends meet. Benson’s
testimony that he could not timely repay T.A. due to financial difficulties brought on by
6
To the extent Benson argues that his eventual repayment to T.A. demonstrates remorse or that it should independently be considered a mitigating factor, we disagree. That argument is inconsistent with our cases holding that restitution to a misappropriation victim is not a mitigating factor if the attorney only makes restitution after receiving notice of a disciplinary complaint. See, e.g., In re Fairbairn, 802 N.W.2d 734, 746 (Minn. 2011) (explaining that restitution is not a mitigating factor if it is “prompted by an attorney’s fear of getting caught”). Here, it did not occur to Benson to reimburse T.A. until the Director notified him of T.A.’s complaint, and it took another year-and-a-half for him to fully repay her. These facts suggest that Benson’s eventual restitution was not motivated by genuine remorse but rather was made to avoid more severe discipline.
24
the investigation and his eventual indictment confirms that Benson prioritized himself
over his fiduciary obligations to his former client. Thus, the record supports the referee’s
finding that Benson did not fully appreciate the difficulties his misappropriation
misconduct caused T.A. and her family.
Furthermore, the referee did not clearly err in finding that Benson’s expressions of
regret were not genuine. Indeed, Benson initially disputed that his failure to safeguard
and return T.A.’s money was misappropriation at all. Only when the referee questioned
him did Benson acknowledge that he misappropriated T.A.’s money. Even then, Benson
insisted that his misappropriation “would fall in the negligent category.” But see Eskola,
891 N.W.2d at 299 (finding intentional misappropriation when “funds belonging to a
client are not deposited in a trust account and are used for any purpose other than that
specified by the client” (citation omitted) (internal quotation marks omitted)). And while
Benson conceded that he should have held the $7,500 he claimed was for a mitigation
specialist in trust and returned the money following A.A.’s sentencing, he indicated that it
was “debatable” whether he should have deposited the $5,000 for “trial expenses” into a
trust account. But see Minn. R. Prof. Conduct 1.15(c)(5) (requiring a lawyer to “deposit
all fees received in advance of the legal services being performed into a trust account and
withdraw the fees as earned” (emphasis added)). Despite Benson’s attempt to minimize
this testimony, we agree with the referee that equivocal words like “debatable” do not
“express genuine regret.” Severson, 860 N.W.2d at 670.
Moreover, although Benson has apologized for putting T.A. and her family
through “what they had to go through” and expressed that it was “unfortunate” that T.A.
25
thought less of him and of lawyers in general because of his wrongdoing, Benson
continued to minimize and attempted to excuse his misconduct. For example, Benson
suggested that he did not promptly return T.A.’s money, in part, because she never
affirmatively asked him to. Similarly, Benson’s sentencing briefing in his criminal tax
case describes his failure to pay taxes as “falling behind”—a natural result of his need to
make payroll for employees and serve clients in a firm that grew beyond his capacity to
manage alone—as opposed to an intentional failure to meet known tax obligations. The
referee did not clearly err in finding these explanations did not “genuinely” convey
“regret and moral anguish.” Id.
Relatedly, and most importantly, Benson does not address the referee’s finding
that, regardless of the substance of his testimony, his expressions of remorse were
“insincere, contrived, and not credible.” We give particular deference to a referee’s
findings related to an attorney’s “credibility, demeanor, or sincerity” in disciplinary
proceedings. In re Wentzell, 656 N.W.2d 402, 405 (Minn. 2003). Here, the referee had the
opportunity to observe Benson’s testimony in person and assess his tone and body
language. He found the sincerity of Benson’s limited apologies and expressions of
remorse wanting, and we decline Benson’s invitation to reweigh the evidence in light of
this credibility determination.
For these reasons, the referee’s conclusion that Benson’s lack of remorse—further
evidenced by his lack of appreciation for the harms he caused—aggravated his
misconduct is not clearly erroneous.
26
5.
Benson further argues that the referee erred in failing to consider Benson’s “good
works” as a “substantial mitigating factor.” Importantly, though, the referee here did find
that Benson’s professional contributions, including pro bono and public service work,
were a mitigating factor. The referee ultimately concluded, however, that “[t]he
aggravating factors tower in comparison to [this] mitigating factor[]” and that Benson’s
contributions were “overshadowed by his substantial ethical failures that occurred over
many years and devast[at]ed many people.” Thus, we consider whether the referee
properly weighed this mitigating factor in making his ultimate recommendation for
discipline.
We agree with the referee that contributions to the legal profession or significant
pro bono work can be a mitigating factor when otherwise-severe discipline would be
warranted. See, e.g., Rooney, 709 N.W.2d at 271 (holding that the attorney’s good
character, pro bono legal work, and volunteer work helped mitigate presumptive
disbarment for misappropriation to an 18-month suspension). We also agree with the
referee that these contributions should be considered a mitigating factor in this case. The
record contains many letters from Benson’s friends, colleagues, mentors, and clients that
speak powerfully to his good character, commitment to improving criminal defense
representation, and positive contributions to the Hennepin County Public Defender’s
Office. These accounts of Benson’s character and contributions to the profession
undoubtedly weigh in favor of mitigation. Benson also presented evidence showing his
commitment to vigorous criminal defense advocacy, improving diversity in the bar, and
27
mentoring younger trial lawyers. Indeed, he spent several years as a public defender and
volunteered a substantial amount of time at a trial skills academy he helped found to train
early-career public defenders.
Because we retain “ultimate responsibility for determining the appropriate
sanction,” Nwaneri, 896 N.W.2d at 525, we need not defer to a referee’s recommendation
for discipline and may weigh mitigating factors differently than the referee. Here,
however, we agree with the referee that, generally, professional contributions and good
works “do not militate against the imposition of discipline in matters of serious ethical
misconduct.” Rooney, 709 N.W.2d at 271 (citation omitted) (internal quotation marks
omitted). Our determination of the appropriate discipline in light of any mitigating factors
ultimately depends on the “unique facts and circumstances of each case.” Matson,
889 N.W.2d at 25 (citation omitted) (internal quotation marks omitted). Here, other facts
support the referee’s conclusion that Benson’s professional contributions should not be
treated as a substantial mitigating factor.
First, most of Benson’s letters of support were initially submitted to the federal
court in connection with Benson’s criminal sentencing. They speak primarily to why a
prison sentence would not have been appropriate in his criminal case, and most do not
consider Benson’s misappropriation in the A.A. matter. Some even rely on the
inevitability of Benson receiving serious professional discipline—including possible
disbarment—as a reason for leniency at sentencing. We find these letters less helpful in
assessing Benson’s current fitness to practice law given the totality of his misconduct.
28
Second, pro bono work is not a mitigating factor if an attorney did no more pro
bono or volunteer work than expected. See In re Hanvik, 609 N.W.2d 235, 239–40 (Minn.
2000). Here, Benson spent most of his career practicing private criminal defense. And
although Benson testified that he often took contract work from public defenders’ offices
around the state, he does not quantify, and the record does not show, what portion of his
services he provided at reduced or no cost.
Thus, we agree with the referee that the evidence of Benson’s professional
contributions does not sufficiently offset the seriousness of his misconduct considering
the other aggravating factors present here.
C.
Having reviewed the “unique facts and circumstances” relevant to the mitigating
factor the referee found, we now look to similar cases to decide whether this mitigating
factor warrants a departure from the presumptive discipline of disbarment given the
nature and cumulative weight of Benson’s misconduct, the harms caused, and the
aggravating factors discussed above. Matson, 889 N.W.2d at 25. For the following
reasons, we conclude it does not.
To start, we reiterate that the presumptive discipline for either intentional
misappropriation or tax misconduct resulting in a felony conviction, considered
individually, is disbarment. Bradley, 7 N.W.3d at 608 (discussing misappropriation);
McNeilly, 18 N.W.3d at 780 (discussing felony convictions). We do not, however,
automatically disbar attorneys convicted of felonies. In re Koss, 572 N.W.2d 276, 277
(Minn. 1997). Instead, we “consider the circumstances surrounding the criminal act to
29
determine if some discipline, short of disbarment, is appropriate.” Id. Similarly, we can
“consider mitigating circumstances in cases involving intentional misappropriation of
client funds and … in certain cases such mitigating factors may result in a sanction less
severe than disbarment.” Rooney, 709 N.W.2d at 270–71. However, “when the
misconduct includes other ethical violations in addition to the misappropriation …
mitigating factors usually will not militate against disbarment.” Id. at 272.
The referee recommended that Benson be disbarred, concluding that “[o]n
balance, the aggravating factors tower over and outweigh the mitigating factor.” Although
we generally give “great weight” to a referee’s recommendation, we have the ultimate
responsibility for determining the appropriate sanction based on the specific facts of each
case. In re Greenman, 860 N.W.2d 368, 376 (Minn. 2015) (citation omitted) (internal
quotation marks omitted). Here, however, we see little room in our case law to depart
from the referee’s recommendation.
Benson points us to a number of cases in which we imposed discipline short of
disbarment for either intentional misappropriation or a felony conviction when
significant mitigating circumstances existed. Benson cites In re Sea, 832 N.W.2d 851
(Minn. 2013) (order); In re McCloud, 826 N.W.2d 529 (Minn. 2013) (order); In re Jones,
763 N.W.2d 38 (Minn. 2009) (order); and In re Butler, 960 N.W.2d 540 (Minn. 2021), in
arguing that we have routinely elected to suspend, rather than disbar, attorneys convicted
of filing materially false income tax returns. He also cites In re Klotz, 909 N.W.2d 327,
340–41 (Minn. 2018); Rooney, 709 N.W.2d at 272–73; and In re Fairbairn, 802 N.W.2d
734, 747–48 (Minn. 2011), for the proposition that suspension may be warranted in
30
intentional misappropriation cases when substantial mitigating factors are present. In
those cases, we imposed discipline ranging from an 18 month suspension to indefinite
suspensions depending on the severity of the misconduct and the relative strength of the
mitigating circumstances.
But critically, none of the attorneys in Sea, McCloud, Jones, or Butler intentionally
misappropriated client funds in addition to committing felony tax offenses. Likewise,
none of the attorneys who intentionally misappropriated funds in Klotz, Rooney, or
Fairbairn were also convicted of felony tax fraud arising out of their law practice.
Benson cites no case in which a lawyer who intentionally misappropriated client funds
and committed a separate felony in the course of practicing law was suspended rather
than disbarred, and we have found none.
Under the circumstances of this case, we conclude that a suspension would not
adequately protect the public or the judicial system. For nearly a decade, Benson willfully
and repeatedly put his own financial needs over his duties to the public and to his clients.
This pattern of misconduct caused serious harm, the extent of which Benson still fails to
fully grasp and for which he does not convincingly express remorse. Instead of
demonstrating a renewed commitment to ethical practice following his earlier
admonitions for similar misconduct, Benson engaged in more serious, sustained
misconduct. We acknowledge that Benson has done much good for the public throughout
his career. But, in Minnesota, the practice of law “is a privilege, not a right.” In re
Swanson, 405 N.W.2d 892, 893 (Minn. 1987). By his actions Benson has forfeited that
privilege, and disbarment is the only appropriate sanction.
31
CONCLUSION
For the foregoing reasons, respondent Kassius O. Benson is disbarred from the
practice of law in the State of Minnesota, effective on the date of this opinion.
Respondent must comply with Rule 26, RLPR (requiring notice to clients, opposing
counsel, and tribunals), and must pay $900 in costs under Rule 24(a), RLPR.
Disbarred.
32