In re Petition for Disciplinary Action Against Peter Gilbert Lennington, a Minnesota Attorney, Registration No. 0223311....
Peter Gilbert Lennington, Saint Paul, Minnesota, pro se.
S Y L L A B U S
Disbarment is the appropriate discipline for an attorney who misappropriated client funds, neglected and abandoned several client matters, failed to comply with a previous suspension order, held himself out to practice law while suspended, and failed to cooperate with disciplinary investigations.
Disbarred.
O P I N I O N
PER CURIAM.
The sole issue before us in this case is the appropriate discipline to impose on attorney Peter Gilbert Lennington. The Director of the Office of Lawyers Professional Responsibility filed a petition for disciplinary action, followed by an amended and restated
FACTS
Lennington was admitted to the practice of law in Minnesota in December 1991. Effective October 6, 2020, we suspended Lennington for 6 months for engaging in a pattern of client-related misconduct impacting eight clients. In re Lennington, 948 N.W.2d 685, 685-86 (Minn. 2020) (order). The misconduct at issue involved neglecting client matters, failing to communicate with clients, failing to clarify a fee, failing to deposit advance fee payments and a filing fee into trust, failing to refund or timely refund unearned fees and a filing fee, charging an unreasonable fee, failing to return original documents to clients, and failing to cooperate in disciplinary investigations. Id.
On February 16, 2021, the Director served on Lennington a petition for disciplinary action. Having received and investigated additional complaints, the Director filed an
Lennington‘s misconduct includes six client matters and non-client related misconduct. We summarize the misconduct below.
D.G. Matter
In December 2018, D.G. hired Lennington to amend his estate plan, which included a revocable trust. D.G. paid Lennington a $6,000 flat fee for the representation. D.G. and Lennington did not sign a written fee agreement. Lennington failed to deposit the fee, which was unearned at the time of his receipt, into a trust account.
In January 2019, a dispute about the trust arose between D.G. and his son. Lennington agreed to represent D.G. in the trust dispute on an hourly basis. The parties reached a mediated settlement agreement, which required D.G. to make certain financial disclosures. Over the next several months, Lennington failed to prepare any disclosures, stopped returning D.G.‘s phone calls, and failed to respond to opposing counsel‘s communications regarding the required disclosures. In July 2020, D.G. terminated the representation.
F.C. Matter
In September 2018, F.C. and his sister hired Lennington to handle the probate of their father‘s estate. Lennington e-mailed them an engagement letter that outlined his hourly feеs and requested a $3,500 advance fee retainer. F.C. paid Lennington $3,500, the majority of which was unearned at the time of receipt. Lennington deposited the unearned fees into his operating account. Lennington‘s communication with the siblings was sporadic and included months-long periods of noncommunication until approximately mid-July 2020, when he stopped responding to the siblings altogether. During this time, Lennington failed to timely inform the siblings about an offer to purchase some real estate they inherited from their father. Lennington further failed to take any action after the siblings instructed him to finalize a deal for the sale.
In August 2020, the siblings terminated the representation. They retained new counsel to complete the probate of their father‘s estate and paid a new retainer. The siblings requested a refund. Lennington declined to make any refund or otherwise account for his fees.
R.C. and T.C. Matter
In October 2019, R.C. and T.C. retained Lennington to probate their father‘s estate. They paid a flat fee of apрroximately $3,000, split between cash and credit card, and gave Lennington original documents related to the estate. Lennington deposited the advance unearned fee payments into his business account. He provided T.C. with a receipt for the cash portion of the retainer, but she did not countersign it.
Lennington abandoned the matter and failed to respond to numerous communications over the next several months. In June 2020, the siblings retained a new attorney, who informed them that Lennington had nеver filed a petition for probate. R.C. then e-mailed Lennington, terminating the representation, and requesting a refund and return of the original documents. Lennington took nearly a month to comply, and he did so only after R.C. threatened to file an ethics complaint.
Z.H. Matter
In March 2020, Z.H. retained Lennington to probate his father‘s estate for a flat fee of $3,500. Z.H. did not sign a written fee agreement. Z.H. also gave Lennington original documents, including a will, death certificate, property records, and tax reсords. Lennington deposited the unearned $3,500 into his business account. Shortly thereafter, Lennington stopped communicating with Z.H. and performed no legal work on the matter. Lennington did not provide a status update despite Z.H.‘s numerous texts, calls, and e-mails over the course of 4 months.
In January 2021, Z.H. left Lennington a voicemail indicating he was terminating the representation. Z.H. then retained new counsel and incurred additional legal fees. Lennington never initiated the probate process for Z.H.‘s father‘s estate, nor did he refund Z.H. the $3,500 or return any of the original documents.
J.B. Matter
Lennington drafted a family trust for H.B. and J.B. in 2010 and updated the trust in 2017. After H.B.‘s death in 2019, J.B. and his daughter met with Lennington in August 2019 about updating the family trust. The same day, J.B. signed a written fee agreement
Neither J.B. nor his daughter had contact with Lennington after the August 2019 meeting, despite their numerous requests for informаtion. They requested a refund in January 2021, but Lennington did not return the funds. Nor did Lennington ever provide any trust paperwork, draft or otherwise, to J.B. or his daughter.
D.L. and K.L. Matter
In September 2006, Lennington completed an estate plan for D.L. and K.L. The estate plan included an irrevocable life insurance trust. The trust instrument required Lennington, acting as trustee, to render an annual accounting to the income beneficiaries of the trust upon written request. Additionally, the trust‘s financial records and documentation were to be available for inspection by the trust beneficiaries and their representatives.
In November 2020, the couple hired a new attorney to update their estate plan. The next month, the new attorney sent Lennington a letter requesting copies of the couple‘s estate planning documents. The letter also notified Lennington that he was being removed as trustee and requested an accounting of his activities as trustee along with financial records related to the trust. Lennington did not respond, which viоlated his statutory obligations as trustee to keep beneficiaries “reasonably informed about the administration of the trust and of the material facts necessary to protect their interests.”
In January 2021, the couple‘s new attorney again wrote to Lennington requesting the same information. The documents Lennington eventually provided did not include a compliant accounting, which violated Lennington‘s statutory obligation to keep adequate records of trust administration. See
Misconduct in Client Matters
Lennington‘s сonduct in these six matters violated numerous rules of professional conduct. His abandonment or neglect of client matters and failure to communicate in the D.G., F.C., R.C./T.C., Z.H., and J.B. matters violated
In addition to the client-related misconduct detailed above, Lennington engaged in further violations of the rules of professional conduct. First, Lennington did not cooperate with the Director‘s investigation of the complaints filed in the R.C./T.C., Z.H., J.B., and D.L./K.L. matters, which violated
ANALYSIS
Because we have already deemed the allegations in the petition and amended and restated supplementary petition admitted, the sole issue before us is what discipline we should impose for Lennington‘s misconduct. See In re Gorshteyn, 931 N.W.2d 762, 765, 769 (Minn. 2019) (considering only the appropriate discipline to impose where attornеy failed to respond to Director‘s petition). The Director recommends disbarment “for the combination of misappropriation and client abandonment across multiple files, given [Lennington‘s] non-participation in [the] proceedings, lack of mitigating evidence and recent disciplinary history.” We agree with the Director that disbarment is the appropriate discipline for the misconduct at issue here.
We have “the ultimate responsibility for determining what discipline should be imposed for attorney misconduct.” Id. at 770. The purpose of imposing 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). To determine the appropriate discipline, we consider four factors: (1) the nature of the misconduct; (2) the cumulative weight of the violations; (3) the harm to the public; and (4) the harm to the legal profession. In re Kleyman, 960 N.W.2d 566, 572 (Minn. 2021). In addition, we consider aggravating and mitigating circumstances. Id. Finally, although we impose discipline according to the unique facts of each case, we look to similar cases for guidance. In re Capistrant, 905 N.W.2d 617, 620 (Minn. 2018).
We first consider the nature of Lennington‘s misconduct, the most serious of which is misappropriation of client funds. Misappropriation occurs when a lawyer “performs no work on client matters and never returns the funds to the clients.” Id. (citation omitted) (internal quotation marks omitted). Misappropriation alone “usually warrants disbаrment absent clear and convincing evidence of substantial mitigating factors.” In re Garcia, 792 N.W.2d 434, 443 (Minn. 2010) (citation omitted).
Lennington‘s conduct in the Z.H. and J.B. matters is clear misappropriation of client funds. In the Z.H. matter, Lennington placed the entire, unearned $3,500 flat fee in his business account rather than into a trust account, performed no work on the matter, and failed to make a refund. Similarly, in the J.B. matter, Lennington received a $7,250 flat fee but performed no work on the matter and has not made a refund. In total, Lennington
Lennington‘s misconduct did not end there. He also engaged in a pattern of neglect and non-communication in multiple client matters, which we consider serious misconduct. See In re Brooks, 696 N.W.2d 84, 88 (Minn. 2005) (“A continuing pattern of client neglect is serious misconduct often warranting indefinite suspension by itself when no evidence of mitigating circumstances is present.“). In fact, depending on the severity, we have indicated client neglect alone may also warrant disbarment. Capistrant, 905 N.W.2d at 621. Lennington performed no work in the Z.H. and J.B. matters; he abandoned the D.G. and R.C./T.C. matters; he neglected the F.C. matter and D.L./K.L. matters. Moreover, he repeatedly failed to respond to client communications in all six matters, often for months at a time. In the F.C. matter, Lennington also failed to respond to correspondence from opposing counsel and failed to timely cоnvey a proposed offer to his clients.
Additionally, Lennington failed to comply with court orders and rules. This is also serious misconduct. See Hulstrand, 910 N.W.2d at 443. Lennington failed to follow court rules and our previous order by not notifying pending clients of his suspension, not paying the restitution we ordered, holding himself out as authorized to practice law despite suspension, and not cooperating with the Director‘s investigations. See In re Grzybek, 567 N.W.2d 259, 264–65 (Minn. 1997) (stating that “repeated failure to comply with court orders” is a “serious violatiоn” that itself is a ground for disbarment); see also In re Rhodes, 740 N.W.2d 574, 579 (Minn. 2007) (concluding that failure to cooperate with the Director‘s investigation was “serious misconduct” that is “separate grounds for discipline“).
Having determined that Lennington‘s misconduct was serious, we next consider the cumulative weight of Lennington‘s disciplinary violations. “[T]he cumulative weight and severity of multiple disciplinary rule 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). We distinguish а “brief lapse in judgment” or a “single, isolated incident” from “multiple instances of mis[conduct] occurring over a substantial amount of time,” the latter of which warrants greater discipline. Capistrant, 905 N.W.2d at 621 (alteration in original) (citation omitted) (internal quotation marks omitted).
Here, Lennington‘s misconduct was neither a single, isolated incident nor a brief lapse in judgment. Lennington committed numerous acts of misconduct ranging from misappropriation to client neglect. His misconduct involved six client matters and occurred оver a span of more than 2 years. See In re Hummel, 839 N.W.2d 78, 82 (Minn. 2013) (holding that misconduct occurring over the course of several months was an “extended period of time“). Lennington also ignored the Director‘s communications for months and did not comply with the terms of his existing suspension. Lennington‘s misconduct demonstrates a pattern of misconduct over an extended period of time.
We also consider the harm that Lennington caused to the public. In evaluating such harm, we consider the number of clients harmed and thе extent of their injuries. In re Sayaovong, 909 N.W.2d 575, 583 (Minn. 2018). Here, Lennington‘s misconduct spanned 6 matters involving 10 clients. Two of these clients were permanently deprived of funds due to Lennington‘s misappropriation and failure to return unearned fees. Four clients had to retain new counsel and incur additional legal fees as result of Lennington‘s neglect and abandonment. Aside from pecuniary harm, Lennington‘s failures caused his clients substantial inconvenience and unnecessary frustration.
The fourth factor we consider is harm to the lеgal profession. Lennington‘s misconduct harmed the legal profession. “Misappropriation and the failure to return unearned fees is a breach of trust that reflects poorly on the entire legal profession and erodes the public‘s confidence in lawyers.” Id. (citation omitted) (internal quotation marks omitted). Lennington‘s neglect of client matters and lack of communication were not only intensely frustrating to the clients, but also reflected adversely on the bar, and were destructive of public confidence in the legal system. See id.; In re O‘Brien, 894 N.W.2d 162, 167 (Minn. 2017). Finally, failure to cooperate with disciplinary investigations “undermin[es] the integrity of the attorney disciplinary system” and “weakens the public‘s perception of the legal profession‘s ability to self-regulate.” In re Brost, 850 N.W.2d 699, 705 (Minn. 2014) (citation omitted) (internal quotation marks omitted). Here, Lennington‘s multiple instances of misconduct eroded the public confidence in lawyers and the legal profession.
In addition to the four factors above, we consider аny aggravating and mitigating circumstances. Here, there are no mitigating factors for us to consider because Lennington did not respond to the petition or amended and restated supplementary petition. In re Matson, 889 N.W.2d 17, 25 (Minn. 2017) (declining to consider any mitigating circumstances because the attorney did not file an answer to the petition); In re Ladd, 463 N.W.2d 281, 283 (Minn. 1990) (“[R]espondent‘s failure to answer the petition with any mitigating circumstances bars our consideration of such issues.“).
There are, however, two aggravating factors. The first is Lennington‘s disciplinary history. In re Cutting, 671 N.W.2d 173, 175 (Minn. 2003) (providing that “previous misconduct of the same type is considered an aggravating factor“). We suspended Lennington, effective in September 2020, for, among other things, neglect, non-communication, failing to safekeep client funds, failing to refund unearned fees, and failing to cooperate in disciplinary investigations—the same type of misconduct involved in this case. Lennington, 948 N.W.2d at 685–86. This factor “weighs heavily” because Lennington‘s prior discipline was for similar misconduct. In re Tigue, 900 N.W.2d 424, 432 (Minn. 2017).
Second, the timing of Lennington‘s misconduct—coming directly on the heels of prior discipline—makes Lennington‘s history a “serious” aggravating factor. Rhodes, 740 N.W.2d at 580 (determining that because “most of [the attorney‘s] new misconduct occurred at the same time as, and in the months immediately following, the previous disciplinary proceedings against [the attorney] for similar violations,” the disciplinary history was a “serious” aggravating factor).
Finally, we look to guidance from similar past cases. We have ordered disbarment in factually similar cases involving the constellation of misappropriation of client funds, a pattern of client neglect and abandonment across multiple client matters, and prior
And Lennington‘s misconduct here went beyond misappropriation. In re Gryzbek, in particular, is similar to this case. 567 N.W.2d at 265. There, three separate grounds supported disbarment: (1) repeated neglect of client matters and noncooperation with the disciplinary process less than a year after receiving a 6-month suspension for similar misconduct; (2) misappropriation of $750 in client funds and no attempt to return the money; and (3) repeated lack of compliance with court orders. Id. Like the attorney in Gryzbek, Lennington has repeatedly neglected client matters—both аs part of the misconduct underlying his October 2020 suspension and here—and has failed to cooperate with disciplinary investigations less than a year after receiving a suspension for similar misconduct. Moreover, Lennington misappropriated $10,750 of client funds—substantially more than the amount of money taken in Gryzbek—and has made no attempt to return the funds. And Lennington failed to comply with court rules and our prior order.
In light of all of the relevant factors, we conclude that the appropriate discipline for Lennington is disbarment.
CONCLUSION
For the foregoing reasons, respondent Peter Gilbert Lennington is disbarred from the practice of law in the State of Minnesota, effective on the date of this opinion. Respondent shall comply with
Disbarred.