Theft From Law Firm Merits Disbarment

The Minnesota Supreme Court has disbarred an attorney

On May 6, 2020, we indefinitely suspended respondent Ana L. Pena without the right to petition for reinstatement for 18 months. We did so for, among other violations, misappropriation of client funds. Pena never petitioned for reinstatement.

On October 7, 2024, the Director of the Minnesota Office of Lawyers Professional Responsibility (the Director) filed a second Petition for Disciplinary Action against Pena alleging two counts. First, the Director alleged that Pena committed theft of over $94,000 from her Texas-based law firm and one of its partners, constituting fraud and dishonesty in violation of Rule 8.04(a)(3), Texas Disciplinary Rules of Professional Conduct (TDRPC). Second, the Director alleged that Pena’s failure to cooperate with the Director’s investigation violated Rule 8.1(b), Minnesota Rules of Professional Conduct (MRPC), and Rule 25, Rules on Lawyers Professional Responsibility (RLPR). Pena did not respond to this petition. By an order filed December 13, 2024, we deemed all allegations in the petition admitted. All that remains for this court to decide is what discipline to impose. The Director argues for disbarment. We agree, and we therefore disbar Pena.

Respondent practiced immigration law in Texas at the time of her suspension

Pena did not inform her employer, the Quintana and Barajas law firm (the Firm) in San Antonio, Texas, that her Minnesota license had been suspended. The Firm discovered her suspension when one of the Firm’s other employees opened a letter from the Director addressed to Pena. Even so, the Firm decided to keep Pena employed in a non-lawyer position because the Firm believed that the conduct underlying her suspension was due to a set of unusual circumstances and unlikely to reoccur. One of Pena’s responsibilities in her non-lawyer position with the Firm was to manage the Firm’s payroll.

Pena subsequently misappropriated money from the Firm and one of the Firm’s partners in four ways. First, while overseeing the Firm’s pay schedule transition from twice a month (semi-monthly) to every other Friday (biweekly), Pena deliberately failed to adjust her own compensation schedule. This resulted in her receiving 74 overpayments from January 2021 through November 2023. Pena did not report or repay these overpayments.

Second, Pena misappropriated money from the Firm by secretly adjusting her own base wage rate to increase her compensation. These increases ranged from $128.21 to $3,366.67 per pay period, and also cost the Firm $1,630.71 in matching funds to Pena’s retirement account.

Third, Pena misappropriated Firm money through pay advances. From October 7, 2022, through November 3, 2023, Pena received pay advances totaling $31,200 by falsely representing that she would repay the advances. Pena did not repay any of this money.

Finally, Pena misappropriated money from one of the Firm’s partners. In July 2023, Pena asked the partner for a pay advance of $7,200, but he declined because the requested advance exceeded Pena’s salary for the pay period. Pena then represented that, if the partner would personally loan her the money, she would repay him within four weeks upon securing a loan from her retirement account. He loaned her the money. Pena never intended to repay this loan,2 and the partner relied on her misrepresentation. Despite his requests, Pena never repaid him.

In total, Pena misappropriated $87,597.18 from the Firm between January 2021 through November 2023, and an additional $7,200 from the Firm’s partner in July 2023, for a total sum of $94,797.18. On November 17, 2023, in a meeting with a human resources investigator, Pena admitted to these misappropriations, signed over her final paycheck to the Firm, and was terminated. A criminal investigation of Pena is in progress in Texas.

Harm

While Pena’s theft from the Firm did not harm any clients, we have said that “[m]isappropriation of any kind, by its very nature, harms the public at large.” Fairbairn, 802 N.W.2d at 743. Pena’s misappropriation of over $94,000 harmed the Firm, the Firm’s partner, and the public at large, eroding public confidence in the legal profession. Further, we have held that an attorney’s failure to cooperate with a disciplinary investigation also harms the public and the legal profession.

Sanction

Based on the substantial amount of money misappropriated, the length of time during which she engaged in the misappropriation, the harm to the public and the legal profession, and the aggravating factors present, we hold that the appropriate sanction for Pena’s misconduct is disbarment.

(Mike Frisch)