In re Disciplinary Action Against Letourneau

• Decision Date: 05 January 2011
• Docket Number: No. A09-1861.,A09-1861.
• Citation: 792 N.W.2d 444
• Parties: In re Petition for DISCIPLINARY ACTION AGAINST Dennis R. LETOURNEAU, a Minnesota Attorney, Registration No. 62443.
• Court: Minnesota Supreme Court

792 N.W.2d 444

In re Petition for DISCIPLINARY ACTION AGAINST Dennis R. LETOURNEAU, a Minnesota Attorney, Registration No. 62443.

No. A09-1861.

Supreme Court of Minnesota.

Jan. 5, 2011.

Syllabus by the Court

Indefinite suspension with no right to petition for reinstatement for a minimum of one year is the appropriate discipline when a lawyer neglects a client matter by failing to timely serve a potential defendant until after the statute of limitations had expired; failing to timely respond to discovery requests or file responsive pleadings; failing to pursue alternative dispute resolution proceedings; not adequately communicating with his clients; agreeing to forego certain claims without consulting his clients; and not cooperating in a timely manner with the Director's investigation of the complaint.

Martin A. Cole, Director, Patrick R. Burns, First Assistant Director, Office of Lawyers Professional Responsibility, St. Paul, MN, for petitioner.

Edward F. Kautzer, Ruvelson & Kautzer, Chartered, St. Paul, MN, for respondent.

OPINION

PER CURIAM.

The Director of the Office of Lawyers Professional Responsibility (OLPR) servedand filed a petition for discipline in September 2009 alleging that Dennis R. Letourneau neglected a client matter, did not adequately communicate with his clients, did not obtain his clients' approval before agreeing to forego certain claims, and failed to cooperate with the Director's office in its investigation of the complaint against him. Following a hearing, a referee appointed pursuant to Rule 14, Rules on Lawyers Professional Responsibility (RLPR), concluded that Letourneau had committed the violations as alleged and recommended that Letourneau be indefinitely suspended from the practice of law with no eligibility to apply for reinstatement for one year. We conclude that the referee's findings are not clearly erroneous and suspend Letourneau from the practice of law with no right to petition for reinstatement for a minimum of one year.

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.¹ Letourneau commenced an action in Hennepin County District Court by serving Kmart Corporation, Kmart Pharmacies of Minnesota, and employees Heidi Scheppmann and Mary Geronime with a summons and complaint. The complaint also named the pharmacist on duty, Elizabeth Geer, as a defendant, but she was not served until February 9, 2005, after the four-year health-care provider and six-year personal injury statutes of limitations had both expired.

By the time Letourneau filed suit, Kmart had filed for Chapter 11 bankruptcy.² As a result of the bankruptcy, all attempts to collect on debts arising before January 22, 2002—including civil lawsuits in state court—were automatically stayed.³See 11 U.S.C. § 362 (2006). The deadline for submitting a proof of claim in the bankruptcy proceeding was July 31, 2002. Letourneau nevertheless filed a proof of claim on May 1, 2003, two months after Kmart informed Letourneau of the bankruptcy. Kmart filed an omnibus objection in bankruptcy court seeking relief from (among other things) the Ennengas' claim. The bankruptcy court continued consideration of Kmart's motion with respect to the Ennengas' claim.⁴ Letourneau took no action to lift the bankruptcy stay and did not pursue recovery in bankruptcy court, claiming that he did not want his clients to have to settle for the 6.25% to 9.7% of damages Kmart's reorganization plan would have paid to the Ennengas.

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 providethe Director with additional documents by March 18, 2009. Letourneau did not provide the information until the pre-hearing discovery phase. During the disciplinary proceedings, Letourneau was served with discovery requests on November 24, 2009, but did not respond until March 18, 2010.

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 ⁵ and 1.3; ⁶ that his failure to explain to his clients the effect of Kmart's bankruptcy on the state court litigation, Kmart's motion for dismissal, the district court's dismissal, and his clients' appeal right violated Minn. R. Prof. Conduct 1.4(b); ⁷ that his failure to consult with his clients before agreeing to dismiss Elizabeth Geer from the action and agreeing to waive their right to appeal violated Minn. R. Prof. Conduct 1.2(a) ⁸ and 1.4; ⁹ that his failure to timely respondto discovery requests violated Minn. R. Prof. Conduct 1.1, 3.2,¹⁰ 3.4(c),¹¹ and 8.4(d); ¹² that his failure to pursue alternative dispute resolution procedures violated Minn. R. Prof. Conduct 1.1, 1.3, and 3.2; and that his failure to...