PER CURIAM.
The Director of the Office of Lawyers Professional Responsibility (OLPR) served
Letourneau was admitted to the practice of law in Minnesota in 1970. He practices primarily in personal injury matters. Letourneau has three previous disciplinary incidents. In 2001, he was admonished for providing financial assistance to a client, failing to cooperate with a disciplinary investigation, and practicing law while suspended for nonpayment of the attorney registration fee. In 2003, Letourneau was placed on two-year private probation for making a loan to a client and failing to cooperate with a disciplinary investigation. In 2006, we publicly reprimanded Letourneau and placed him on one year of supervised probation for neglecting a client matter and failing to keep his client informed about her matter. See In re Letourneau, 712 N.W.2d 183 (Minn.2006).
On February 20, 1999, Frederick and Carol Ennenga retained Letourneau to pursue claims against a Kmart pharmacy for making a mistake in filling a prescription. In December 1998, the pharmacy filled Frederick Ennenga's prescription with a blood thinner instead of his prescribed blood pressure medication. As a result of taking the incorrect medication, on February 6, 1999, Ennenga suffered a ruptured aneurysm requiring surgery and four to five weeks of hospitalization. Ennenga lost kidney function and three of his toes were amputated. Letourneau took no formal legal action until February 6, 2003, the last day allowed by the four-year statute of limitations.
By the time Letourneau filed suit, Kmart had filed for Chapter 11 bankruptcy.
On May 12, 2005, Kmart moved to have the district court dismiss the Ennengas' suit. Letourneau did not file the Ennengas' response to the motion until the night before the hearing on that motion, six days after the response was due. As a result, the court refused to allow Letourneau to present oral argument. The court granted Kmart's motion, concluding that the claims against all defendants failed because (1) Mary Geronime was not a pharmacist, (2) Heidi Scheppmann was not employed by Kmart at the time Mr. Ennenga was given the wrong medication, (3) Elizabeth Geer was not timely served, and (4) the bankruptcy proceedings precluded the lawsuit against Kmart. The court also noted that Letourneau had not complied with discovery deadlines or court-ordered scheduling deadlines. Letourneau waited one month before forwarding Kmart's discovery requests to the Ennengas, responded to discovery requests three months after they were due, served his own discovery requests too late to allow for the required 30-day response period, and served a notice of taking depositions that gave only one day advance notice to depose four people. Letourneau also failed to execute a stipulation to dismiss Elizabeth Geer from the lawsuit even though he had agreed to do so in a conference with the district court and was sent a prepared stipulation for his signature. The court awarded Kmart $600 in attorney fees for the extra work due to Letourneau's untimely filings.
The Ennengas fired Letourneau in 2008, complained to the OLPR, and filed a malpractice suit against Letourneau. The malpractice suit was settled in 2010.
After receiving the Ennengas' complaint, the Director sent a notice of investigation to Letourneau on September 10, 2008, and requested a response within 14 days. Letourneau did not provide the requested information until October 29, 2008, after several communications from the Director and after Letourneau promised but failed to deliver the materials several times. The Director responded on October 30, 2008, with a request for more information. Again, Letourneau made several promises to deliver the materials but failed to do so. The Director eventually told Letourneau that he would charge Letourneau with noncooperation if the Director did not receive the responses by January 14, 2009. Letourneau sent his responses on January 16, 2009. On February 25, 2009, Letourneau agreed to provide
Letourneau challenged the petition for disciplinary action and the matter came before the referee on March 30, 2010. The referee found on conflicting testimony that Letourneau had failed on a number of occasions either to inform his clients of the status of their case or to get their consent on critical decisions affecting the case. The referee found that Letourneau did not promptly inform the Ennengas of Kmart's bankruptcy filing, explain the impact of the bankruptcy filing on their claim, tell the Ennengas about the requirements for filing a proof of claim, or explain that the bankruptcy stay could be lifted to allow the district court case to proceed. The referee found that Letourneau did not tell his clients that he had not served Elizabeth Geer before the statute of limitations had run or that the claim was likely to fail against two of the defendants because one was not a pharmacist and the other was not employed at the pharmacy until after Mr. Ennenga's prescription was filled incorrectly. The referee found that Letourneau had not told the Ennengas that attorney fees had been awarded as a result of his failure to meet deadlines, that Letourneau had agreed to dismiss Elizabeth Geer from the action without consulting the Ennengas, and that without consulting the Ennengas, Letourneau made a deal to give up their right to appeal the dismissal order in exchange for Kmart's promise not to collect the attorney fees it had been awarded. Finally, the referee found that Letourneau had not advised the Ennengas of the hearing in the district court at which the motion to dismiss their case was argued.
The referee concluded that Letourneau's failure to timely serve Elizabeth Geer violated Minn. R. Prof. Conduct 1.1
Allegations of professional misconduct must be proven by "full, clear and convincing evidence." In re Ruhland, 442 N.W.2d 783, 785 (Minn.1989). The clear-and-convincing standard is met when "the truth of the facts asserted is `highly probable.'" In re Moeller, 582 N.W.2d 554, 557 (Minn.1998) (quoting In re Miera, 426 N.W.2d 850, 853 (Minn.1988)). When a hearing transcript is ordered, the referee's findings are subject to review on the record and are upheld unless clearly erroneous. In re Westby, 639 N.W.2d 358, 367 (Minn.2002); In re Jensen, 468 N.W.2d 541, 543-44 (Minn.1991). Findings of fact are reversed only if "upon review of the entire evidence, a reviewing court is left with the definite and firm conviction that a mistake has been made." In re Pinotti, 585 N.W.2d 55, 62 (Minn.1998). The referee's findings are given great deference. Jensen, 468 N.W.2d at 543. "[A] referee's failure to make certain findings of fact is reviewed for clear error." In re Aitken, 787 N.W.2d 152, 158 (Minn.2010).
Letourneau argues that he did not neglect the Ennengas' lawsuit and that his
We disagree. Letourneau demonstrated incompetent representation of a client under Minn. R. Prof. Conduct 1.1 by not communicating with his clients, consistently missing deadlines, failing to make filings needed to preserve his clients' claim, and failing to serve a potential defendant before the statute of limitations had run.
Letourneau also disputes findings that Letourneau did not inform his clients of the significant events in their litigation and failed to respond promptly to their inquiries. Letourneau and the Ennengas offered conflicting testimony as to the frequency and extent of Letourneau's communications with them. The referee credited the Ennengas' testimony over Letourneau's. We give particular deference to a referee's determination of credibility. In re Winter, 770 N.W.2d 463, 467 (Minn. 2009). The findings that Letourneau did not inform his clients of the significant events in their litigation are supported by the record.
Letourneau further argues that the referee erred by finding that Letourneau had not cooperated with the Director's investigation. Letourneau claims that he eventually provided all documents the Director requested. He admits, however, that he did not respond in writing to the Director's last request for documents and other information until the discovery phase of the disciplinary process had begun. After a thorough review of the record, we conclude that the referee's findings that Letourneau failed to cooperate with the Director's investigation and failed to timely respond to the Director's discovery requests are not clearly erroneous.
The referee recommended that Letourneau be indefinitely suspended from the practice of law with eligibility to apply for reinstatement after one year, with reinstatement conditioned on Letourneau seeking professional help to address his trouble with deadlines. Letourneau argues that the recommended discipline is excessive.
"Although a referee's recommendation for discipline carries great
The misconduct in this case involves incompetent legal representation, neglect of a client matter, failure to communicate with clients, failure to obtain client approval before agreeing to forego claims, and not fully cooperating with an investigation. "Indefinite suspension is typical in cases involving continued or repeated neglect of client matters without evidence of mitigating circumstances." In re Merlin, 572 N.W.2d 737, 741 (Minn. 1998). Failure to cooperate with the Director's investigation is a violation of Rule 25, RLPR, and Minn. R. Prof. Conduct 8.1(b), and is misconduct that may result in suspension. See In re Karlsen, 778 N.W.2d 307, 312 (Minn.2010). Although we have imposed less severe sanctions on attorneys who responded to the Director's requests late than we have on attorneys who failed to respond at all,
Furthermore, Letourneau represented the Ennengas in this matter during his two probationary periods.
We generally impose "more severe sanctions when the current misconduct is similar to misconduct for which the attorney has already been disciplined." In re Moore, 692 N.W.2d 446, 450 (Minn. 2005). Letourneau has previously been disciplined for failure to cooperate in the disciplinary process and for neglecting a client matter and failing to keep his clients
We further consider the harm to the public resulting from the attorney's actions. The harm to the client in this case is clear. Despite Letourneau's protestations about complicating factors, the Ennengas had a strong case. Kmart provided the wrong medication and Mr. Ennenga suffered serious physical harm as a result. The Ennengas had a strong case on liability and there is no suggestion that Mr. Ennenga was at all to blame for his injuries. The Ennengas received only a relatively small legal malpractice settlement. Furthermore, client neglect "generally `undermines public confidence in the legal profession, which harms the public, the legal profession and the justice system.'" Albrecht, 779 N.W.2d at 542 (quoting In re Keate, 488 N.W.2d 229, 235 (Minn.1992)).
Letourneau's conduct harmed the legal system in other ways. He pursued a case in district court long after it was clear the case could not go forward against any of the defendants and refused to participate in the mediation process. By doing so, he needlessly increased the burden on a heavily loaded and underfunded court system. Lack of cooperation with a disciplinary investigation also harms the legal system because it "undermine[s] ... the integrity of the lawyer disciplinary system." In re Gomsrud, 618 N.W.2d 803, 805 (Minn.2000); see also, e.g., In re Neill, 486 N.W.2d 150, 151 (Minn.1992) (writing that "respondent's complete lack of cooperation" with the Director exhibited "a disturbing disregard for the disciplinary process and complete indifference to the profession").
Based on Letourneau's misconduct, and the aggravating circumstances found, the referee recommended that Letourneau be suspended indefinitely with no right to apply for reinstatement for one year. The referee also recommended that Letourneau be permitted to reapply only if he had sought professional help to address his chronic inability to perform his duties in a timely manner and proves that he understands the root causes of his problem and has satisfactorily remedied it. We do not formally adopt the recommendation that Letourneau seek professional help as a requirement of his discipline. Before any attorney may be reinstated, he must meet the standards for reinstatement. These standards include an acknowledgement of wrongdoing and indication that there has been a change of heart. Given the record before us, we see no compelling reason to otherwise deviate from the referee's recommendation.
Accordingly, we order that:
1. Respondent Dennis R. Letourneau be indefinitely suspended from the practice of law, effective 14 days after the filing of this order, and that he be ineligible to petition for reinstatement for a minimum of one year from the effective date of the suspension.
2. Letourneau shall comply with the requirements of Rule 26, RLPR (requiring notice of suspension to clients, opposing counsel, and tribunals).
3. If Letourneau seeks reinstatement, he shall comply with the requirements of Rule 18(a)-(c), RLPR.
4. Letourneau shall pay $900 in costs pursuant to Rule 24, RLPR.
So ordered.
Minn. R. Prof. Conduct 1.4. Before 2005, Rule 1.4(a) stated: "A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information." Minn. R. Prof. Conduct 1.4(a) (2004).