In re Petition for Disciplinary Action against Steven Paul Lundeen, a Minnesota Attorney, Registration No. 273776.
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STATE OF MINNESOTA
IN SUPREME COURT
A11-0896
Original Jurisdiction
Per Curiam
In re Petition for Disciplinary Action
against Steven Paul Lundeen, a Minnesota Attorney,
Registration No. 273776
Filed: March 21, 2012
Office of Appellate Courts
________________________
Martin A. Cole, Director, Cassie Hanson, Senior Assistant Director, Office of Lawyers
Professional Responsibility, St. Paul, Minnesota, for petitioner.
Stephen O’Brien, Minneapolis, Minnesota, for respondent attorney.
________________________
SYLLABUS
Disbarment is the appropriate sanction for an attorney who misappropriated client
funds, failed to place funds in his trust account, failed to return unearned fees, failed to
appear for trial, made false statements to the court and to clients, failed to satisfy a lawrelated debt, failed to comply with court orders, neglected client matters, and failed to
cooperate in the disciplinary process.
Disbarred.
OPINION
PER CURIAM.
The Director of the Office of Lawyers Professional Responsibility filed a petition
for disciplinary action against respondent Steven Paul Lundeen on May 16, 2011,
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alleging four counts of professional misconduct, including misappropriation of client
funds, failure to pay a law-related debt, failure to return unearned fees, client neglect,
making false statements, and failure to cooperate with the disciplinary process. Lundeen
failed to file an answer to this petition.
On May 31, 2011, the Director filed a supplementary petition for disciplinary
action against Lundeen, alleging two additional counts of misconduct, including failure to
appear at trial and making false statements to the court. Lundeen failed to file an answer
to the supplementary petition. In response to a motion for summary relief from the
Director, on June 30, 2011 we ordered that the allegations in both the petition for
disciplinary action and the supplementary petition for disciplinary action be deemed
admitted.
On November 3, 2011, the Director filed a second supplementary petition for
disciplinary action against Lundeen, alleging four additional counts of misconduct,
including conversion of client funds, abandonment of client matters, unauthorized
practice of law, and a continued failure to participate in the disciplinary process.
Lundeen failed to file an answer to the second supplementary petition.
On November 14, 2011, the Director filed a petition for Lundeen’s temporary
suspension from the practice of law. Lundeen failed to file a response to this petition.
On December 1, 2011, we ordered that the allegations in the second supplementary
petition and the petition for temporary suspension be deemed admitted and temporarily
suspended Lundeen from the practice of law.
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Lundeen was admitted to the practice of law in Minnesota in 1997. Lundeen was
admonished by the Director in July 2001 for failing to diligently pursue a client matter,
failing to adequately communicate with the client, and failing to provide the client with
adequate notice of Lundeen’s intent to withdraw from representation. Lundeen was also
admonished by the Director in February 2010 for failing to satisfy a law-related debt and
for making false statements regarding payment of that debt.
The Director requests that we disbar Lundeen. We agree with the Director’s
assertion that the facts and circumstances of this case merit disbarment. The admitted
allegations in the three petitions for disciplinary action are described below as eight
matters.1
1.
J.S. Matter
During his representation of J.S., Lundeen failed to place two settlement checks in
his trust account. Additionally, Lundeen issued J.S. a settlement check drawn on his
business account that was returned for insufficient funds. J.S. obtained a conciliation
court judgment against Lundeen and the court ordered Lundeen to complete a financial
disclosure form and submit the form to J.S. Lundeen failed to provide the form to J.S. or
satisfy the judgment.
Lundeen’s conduct in the J.S. matter violated Minn. R. Prof. Conduct 1.15(a),
which requires a lawyer to safekeep client property by placing client funds in a trust
account.
Lundeen also committed professional misconduct by engaging in conduct
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Each petition contains a separate count for continued noncooperation. All three
noncooperation counts will be discussed together as a single count.
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involving dishonesty, fraud, deceit, or misrepresentation in violation of Minn. R. Prof.
Conduct 8.4(c).
2.
P.S. Matter
P.S. provided court reporting services to Lundeen. Despite repeated requests for
payment, Lundeen did not pay P.S.’s bill for those services in the amount of $924.05.
P.S. obtained a conciliation court judgment against Lundeen and the court ordered
Lundeen to complete a financial disclosure form and submit it to P.S. Lundeen failed to
complete the form or satisfy the judgment.
Lundeen’s conduct in the P.S. matter violated Minn. R. Prof. Conduct 3.4(c),
which prohibits lawyers from knowingly disobeying the rules of a tribunal. Lundeen also
engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation and in
conduct prejudicial to the administration of justice in violation of Minn. R. Prof. Conduct
8.4(c)-(d).
3.
F.P. Matter
In November 2009 Lundeen began representing F.P., a vulnerable client, in two
unrelated civil matters. Lundeen frequently failed to communicate with F.P. In July
2010, Lundeen withdrew from one of F.P.’s civil matters on which Lundeen had done no
work and returned the file to F.P. Although F.P. requested that Lundeen return the file in
his second civil case, Lundeen has not returned the file.
Lundeen’s conduct in the F.P. matter violated the Rules of Professional Conduct
requiring a lawyer to provide competent representation (Minn. R. Prof. Conduct 1.1), to
act with diligence and promptness (Minn. R. Prof. Conduct 1.3), to adequately
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communicate with clients (Minn. R. Prof. Conduct 1.4), and to protect a client’s interests
after termination of representation by returning the client’s papers and property (Minn. R.
Prof. Conduct 1.16(d)). Lundeen also committed misconduct by engaging in conduct
involving dishonesty, fraud, deceit, or misrepresentation in violation of Minn. R. Prof.
Conduct 8.4(c).
4.
W.N. Matter
Lundeen accepted $712 in advance fees from W.N. to cancel a contract for deed
but performed no work on the matter. W.N. demanded an accounting and a refund.
Lundeen falsely stated to W.N. that he had recorded a cancellation of the contract for
deed. Lundeen also promised W.N. a refund of unearned fees, but failed to appear at
three scheduled meetings with W.N. After W.N. filed an ethics complaint with the Office
of Lawyers Professional Responsibility, Lundeen told W.N. he would no longer provide a
refund. Lundeen has not refunded any unearned fees to W.N.
Lundeen’s conduct in the W.N. matter violated all of the same Minnesota Rules of
Professional Conduct that he violated in the F.P. matter. Lundeen’s conduct in the W.N.
matter also violated the Rules of Professional Conduct prohibiting a lawyer from
charging unreasonable fees (Minn. R. Prof. Conduct 1.5(a)), prohibiting a lawyer from
knowingly making false statements (Minn. R. Prof. Conduct 4.1), and requiring a lawyer
to provide an accounting of unearned fees and to deliver funds to a client when that client
is entitled to receive them (Minn. R. Prof. Conduct 1.15(b), (c)(4)).
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5.
W.E. Matter
During his representation of W.E. in a criminal trial, Lundeen was arrested on
suspicion of cocaine possession. As a result, Lundeen failed to appear for the second day
of W.E.’s trial. In the days following his arrest and failure to appear, Lundeen made
multiple false statements to the court about the reason for his absence.
The court
declared a mistrial. Lundeen later pleaded guilty to fifth-degree drug possession.
Lundeen’s conduct in this matter violated the Rules of Professional Conduct
requiring candor toward the tribunal (Minn. R. Prof. Conduct 3.3(a)) and fairness to the
opposing party and counsel (Minn. R. Prof. Conduct 3.4(c)), and prohibiting knowing
false statements (Minn. R. Prof. Conduct 4.1). Lundeen also committed professional
misconduct by committing a criminal act that reflected adversely on his honesty,
trustworthiness, or fitness as a lawyer; by engaging in conduct involving dishonesty,
fraud, deceit, or misrepresentation; and by engaging in conduct prejudicial to the
administration of justice, in violation of Minn. R. Prof. Conduct 8.4(b)-(d).
6.
K.P., N.G., J.B., and P.A. Matters
Lundeen’s representation of K.P., N.G., J.B., and P.A. followed a similar pattern:
Lundeen accepted advance fees but performed no work, failed to communicate with the
clients, refused to return unearned fees, and made false statements to the clients. In
addition, Lundeen was verbally and physically aggressive toward K.P. on one occasion
when K.P. requested a refund. Lundeen has also failed to satisfy K.P.’s conciliation court
judgment against him. Finally, Lundeen failed to comply with the conciliation court’s
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order for financial disclosure in the K.P. matter until after a bench warrant was issued for
his arrest.
Lundeen’s conduct in the K.P., N.G., J.B., and P.A. matters violated the Rules of
Professional Conduct requiring lawyers to provide competent representation (Minn. R.
Prof. Conduct 1.1), to act with diligence and promptness (Minn. R. Prof. Conduct 1.3), to
adequately communicate with clients (Minn. R. Prof. Conduct 1.4), and to refrain from
making false statements (Minn. R. Prof. Conduct 4.1).
Lundeen also committed
misconduct by engaging in conduct involving dishonesty, fraud, deceit, or
misrepresentation; and by engaging in conduct prejudicial to the administration of justice,
in violation of Minn. R. Prof. Conduct 8.4(c)-(d). Additionally, Lundeen’s failure to
comply with the district court’s order for financial disclosure in the K.P. matter until after
a bench warrant was issued violated Minn. R. Prof. Conduct 3.4(c), prohibiting lawyers
from knowingly disobeying the rules of a tribunal.
7.
Unauthorized Practice of Law
In June 2011 Lundeen wrote a check in payment of his annual lawyer’s
registration fee that was returned for insufficient funds. Lundeen failed to make a
substitute payment and was administratively suspended for failing to pay his lawyer
registration fee. While he was suspended, Lundeen appeared in court, or attempted to
appear, on behalf of multiple clients.
Lundeen’s conduct violated Minn. R. Prof. Conduct 5.5(a), which prohibits the
unauthorized practice of law.
Lundeen also committed misconduct by engaging in
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conduct prejudicial to the administration of justice, in violation of Minn. R. Prof.
Conduct 8.4(d).
8.
Noncooperation
Lundeen did not respond to any of the notices of investigation or numerous
follow-up letters sent by the Director regarding complaints against Lundeen, even though
the notices and letters were sent to the address listed for Lundeen with the Lawyer
Registration Office. After July 2011, mail sent to that address was returned to the
Director as undeliverable. The Director then attempted to contact Lundeen using the
email address listed on Lundeen’s website. Lundeen did not respond to this email.2
Lundeen’s noncooperation in the investigations of the above matters violated
Minn. R. Prof. Conduct 8.1(b), prohibiting a lawyer from knowingly failing to respond to
a lawful demand for information in a disciplinary matter, and Rule 25 of the Rules on
Lawyers Professional Responsibility, requiring lawyers to cooperate with disciplinary
investigations.
Appropriate Discipline
Because the allegations of the petitions are deemed admitted, the only question
remaining is the appropriate discipline. In re Grzybek, 567 N.W.2d 259, 262 (Minn.
1997). The purpose of attorney discipline is to protect the public and the judicial system
and to deter future misconduct. In re Rebeau, 787 N.W.2d 168, 173 (Minn. 2010).
2
Lundeen did not appear at oral argument on January 11, 2012. One day prior to
the argument, the court received a letter stating that Lundeen was in in-patient chemical
dependency treatment and would not be able to attend the argument. This letter did not
request a continuance or claim any mitigating circumstances for Lundeen’s misconduct.
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Factors we consider in determining the appropriate discipline include the nature of the
misconduct, the cumulative weight of the disciplinary violations, the harm to the public,
and the harm to the legal profession. In re Fairbairn, 802 N.W.2d 734, 742 (Minn.
2011).
We look to similar cases for guidance as to the discipline to impose. In re Koss,
611 N.W.2d 14, 16 (Minn. 2000). Discipline is imposed on a case-by-case basis after
consideration of both aggravating and mitigating circumstances.3 In re Oberhauser, 679
N.W.2d 153, 159 (Minn. 2004).
We consider misappropriation of client funds a particularly serious violation and
“generally disbar attorneys who misappropriate client funds” unless there are
“ ‘substantial mitigating circumstances.’ ”
In re Wentzel, 711 N.W.2d 516, 520-21
(Minn. 2006) (quoting In re Weems, 540 N.W.2d 305, 308 (Minn. 1995)).
“Misappropriation occurs whenever 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
Westby, 639 N.W.2d 358, 370 (Minn. 2002).
Under the admitted facts, Lundeen
misappropriated funds belonging to W.N., K.P., N.G., J.B., and P.A., by performing no
work on their matters and never returning the funds to the clients. Also, Lundeen
misappropriated a portion of the settlement funds due to J.S.
3
It is up to the attorney to allege and prove mitigating circumstances. See In re
Sahr, 444 N.W.2d 290, 292 (Minn. 1989). Lundeen failed to answer any of the petitions
or file a brief with our court. Therefore, there are no mitigating circumstances for us to
consider.
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In addition to misappropriation of client funds, Lundeen engaged in many other
serious types of misconduct.
We have stated that making misrepresentations
demonstrates a lack of honesty and integrity, and warrants severe discipline. In re
Ulanowski, 800 N.W.2d 785, 800 (Minn. 2011). Lundeen made misrepresentations to the
court during his representation of W.E. He also made various misrepresentations to
multiple clients. We have noted that failure to comply with court orders is a “serious
violation” and that “repeated failure to comply with court orders” is itself a ground for
disbarment. Grzybek, 567 N.W.2d at 264-65. Lundeen failed to comply with several
court orders directing him to disclose financial information to judgment creditors. Twice
Lundeen failed to comply with court orders until a bench warrant was issued for his
arrest.
Also, repeated instances of client neglect warrant severe discipline.
In re
Swokowski, 796 N.W.2d 317, 327 (Minn. 2011). Lundeen repeatedly failed to take any
action on behalf of his clients and ignored client attempts to communicate with him and
retrieve files from him.
Cumulatively, Lundeen has misappropriated more than $7,800 from clients.4 We
have disbarred attorneys for misappropriation in combination with other misconduct
similar to Lundeen’s misconduct. See, e.g., Swokowski, 796 N.W.2d 317; In re Day, 710
N.W.2d 789 (Minn. 2006); Grzybek, 567 N.W.2d 259.
Day was disbarred for
misappropriating $500, practicing law while suspended, failing to return client files, and
4
Although the amount of money misappropriated by a lawyer is not determinative
as to the appropriate discipline, we have noted that “the amount of the misappropriation
is an appropriate consideration in determining sanctions.” Grzybek, 567 N.W.2d at 264
n.1.
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failing to participate in the disciplinary process. 710 N.W.2d at 793-94. Grzybek was
disbarred for misappropriating $750, neglecting clients, failing to return client files, and
failing to cooperate with the disciplinary process. 567 N.W.2d at 264-65. Swokowski
was disbarred for misappropriating $1,000, failing to pay a law-related debt, engaging in
a pattern of neglect of client matters, failing to adequately communicate with clients,
failing to return client property, and failing to cooperate in the disciplinary investigation.
796 N.W.2d at 320-24.
Lundeen’s misconduct harmed his clients in a number of ways. A mistrial was
declared in W.E.’s case after Lundeen failed to appear. At least five clients have lost
large sums of money paid to Lundeen for work he did not complete. Additionally, some
clients were forced to seek new counsel for their legal services needs. In addition to
harming his clients, Lundeen’s behavior has harmed the general public and the legal
profession. His failure to appear in court led to a mistrial, wasting the time and resources
of the court system. By engaging in a pattern of client neglect, Lundeen has undermined
the public confidence in the legal profession, harming both the public and the profession
itself. See In re Albrecht, 779 N.W.2d 530, 542 (Minn. 2010).
A lawyer’s prior disciplinary history is an aggravating factor. See In re Mayrand,
723 N.W.2d 261, 269 (Minn. 2006).
We consider a lawyer’s prior discipline and
misconduct when determining the appropriate discipline for new misconduct, and we
generally impose more severe sanctions when the current misconduct is similar to the
misconduct for which an attorney has already been disciplined.
In re Brooks, 696
N.W.2d 84, 88 (Minn. 2005). This case is similar to In re Overboe, 745 N.W.2d 852
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(Minn. 2008). Overboe had been disciplined twice previously for similar misconduct,
misuse of a client trust account, dishonesty, misrepresentations, and false statements. Id.
at 867. We concluded that Overboe’s prior misconduct, and its similarity to the case
before us, made it an aggravating factor. Id. Lundeen has a history of discipline for
similar violations. And Lundeen’s failure to cooperate in the disciplinary process means
that we have no information about factors that may mitigate Lundeen’s conduct. See
Day, 710 N.W.2d at 794.
Lundeen has demonstrated a disregard for the ethical practice of law by
misappropriating client funds, failing to place funds in his trust account, failing to return
unearned fees, failing to appear at trial, making false statements to the court and to
clients, failing to satisfy a law-related debt, failing to comply with court orders, and
failing to cooperate with the Director’s investigation.
We order that, upon the filing of this opinion, respondent Steven Paul Lundeen is
disbarred from the practice of law in the State of Minnesota. We further order that
Lundeen comply with Rule 26, Rules on Lawyers Professional Responsibility (RLPR)
(requiring notice of disbarment to clients, opposing counsel, and tribunals), and pay $900
in costs, pursuant to Rule 24, RLPR.
Disbarred.
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