In re Petition for Disciplinary Action against Ana L. Pena, a Minnesota Attorney, Registration No. 0386459

• Court: Supreme Court of Minnesota
• Decided: July 16, 2025
• Docket: A241737
• Status: Published

Opinion

STATE OF MINNESOTA

IN SUPREME COURT

A24-1737

Original Jurisdiction Per Curiam

In re Petition for Disciplinary Action against Filed: July 16, 2025 Ana L. Pena, a Minnesota Attorney, Office of Appellate Courts Registration No. 0386459.

________________________

Susan M. Humiston, Director, Karin K. Ciano, Senior Assistant Director, Office of Lawyers Professional Responsibility, Saint Paul, Minnesota, for petitioner.

Ana L. Pena, San Antonio, Texas, pro se.

SYLLABUS

Disbarment is warranted where respondent misappropriated more than $94,000

from her employer while suspended for having previously misappropriated client funds.

Disbarred.

OPINION

PER CURIAM.

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

1 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.

FACTS

On September 9, 2024, the Director served Pena with a petition alleging

unprofessional conduct and seeking disbarment, pursuant to Rule 9(a)(l), RLPR. Pena

failed to serve or file an answer. By failing to respond, Pena has admitted to the facts

alleged in the petition—that she engaged in conduct involving fraud and dishonesty in

violation of Rule 8.04(a)(3), TDRPC, and failed to cooperate with a disciplinary

investigation in violation of Rule 8.l(b), MRPC, and Rule 25, RLPR. The facts below are

derived from the facts deemed admitted in the petition. Rule 13(b), RLPR (“If the

respondent fails to file an answer within the time provided or any extension of time this

Court may grant, the allegations shall be deemed admitted . . . .”).

Pena was admitted to practice law in Minnesota on September 19, 2006. The

Director noted at oral argument that Pena had been using her license to practice

2 immigration law in Texas. 1 On May 6, 2020, pursuant to a stipulation for discipline, we

indefinitely suspended her Minnesota license without the right to petition for reinstatement

for 18 months. We suspended Pena for misconduct she committed in Texas, specifically,

“failure to safeguard client funds, misappropriation of client funds, and neglect of client

matters, in violation of Rules 1.01(b)(1), 8.04(a)(3), and 1.14(a), Texas Disciplinary Rules

of Professional Conduct.” In re Garza Peña, 942 N.W.2d 751, 751 (Minn. 2020) (order).

Because Pena’s misconduct occurred in and had predominant effects in Texas, the

discipline we imposed in Minnesota was based on her violations of the TDRPC. Id.; Minn.

R. Prof. Conduct 8.5(b) (stating that for conduct other than “conduct in connection with a

matter pending before a tribunal,” the rules of professional conduct “of the jurisdiction in

which the lawyer’s conduct occurred, or, if the predominant effect of the conduct is in a

different jurisdiction, the rules of that jurisdiction” shall be applied in a disciplinary

proceeding). Since Pena’s 2020 suspension, she has not petitioned for reinstatement and

remains suspended.

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

1 According to the Director at oral argument, Pena practiced immigration law. Her Minnesota license was sufficient to practice immigration law in Texas even though she was not licensed in Texas.

3 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

4 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.

Because Pena had not maintained her current contact information in the Minnesota

Attorney Registration System, which still listed Pena’s contact information as the Firm’s

address and her Firm e-mail address, the Director sent notice of the investigation to Pena

at the Firm’s address requesting a response within 14 days. The Director’s investigation

revealed numerous other street addresses, e-mail addresses, and phone numbers associated

with Pena. The Director sent multiple notices requesting a response using each of these

methods of contact. At the time of oral argument, Pena had not responded to any of the

Director’s communications.

On September 9, 2024, the Director served Pena with a petition alleging the above

unprofessional conduct and seeking disbarment. Pena did not respond to the petition.

2 Pena did not participate in the investigation, but the petition alleges that Pena “never intended to repay the $7,200 loan.” Because Pena did not respond to the petition, this fact is deemed admitted. Rule 13(b), RLPR.

5 ANALYSIS

Pena was previously licensed to practice law in Minnesota but was practicing in

Texas at the time the conduct here occurred. While both Texas and Minnesota professional

responsibility rules are relevant to whether misconduct occurred, we apply Minnesota law

when considering the discipline to impose. See In re Overboe, 745 N.W.2d 852, 866–67

(Minn. 2008) (applying Minnesota law to determine the discipline to impose after

concluding that the Minnesota and North Dakota Rules of Professional Conduct applied to

a lawyer’s conduct); Rule 15(a), RLPR. “The purpose of discipline for professional

misconduct 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) (citing In re Plummer,

725 N.W.2d 96, 98 (Minn. 2006)). In assessing the appropriate sanction in an attorney

discipline matter, “we consider four factors: (1) the nature of the misconduct; (2) the

cumulative weight of the disciplinary violations; (3) the harm to the public; and (4) the

harm to the legal profession.” In re Nelson, 733 N.W.2d 458, 463 (Minn. 2007). “Because

we strive for consistency in attorney discipline, we look to similar cases for guidance in

setting the proper sanction.” In re Rooney, 709 N.W.2d 263, 268 (Minn. 2006).

The nature of Pena’s misconduct is the misappropriation of over $94,000 from a law

firm and one of its partners, which was dishonest and fraudulent conduct in violation of

Rule 8.04(a)(3), TDRPC (analogous to Minn. R. Prof. Conduct 8.4(c)). The petition does

not allege that Pena’s misconduct amounted to a criminal act in violation of Rule

6 8.04(a)(2), TDRPC (analogous to Minn. R. Prof. Conduct 8.4(b)). 3 When a violation of

Minn. R. Prof. Conduct 8.4(c) is proven, but there is no allegation that the misconduct

amounts to a criminal act under Rule 8.4(b), we have often imposed suspension. See, e.g.,

In re Koble, 827 N.W.2d 765, 765 (Minn. 2013) (order) (imposing a 30-day suspension for

misappropriating $1,300 in fees belonging to attorney’s law firm and improperly

attempting to withdraw from representation of a client); In re McFarland, 652 N.W.2d 536,

536 (Minn. 2002) (order) (imposing a 30-day suspension on an attorney who

misappropriated approximately $25,000 in client fees from his law firm). The nature of

this case, however, is more serious than our previous Rule 8.4(b) cases because the

misappropriation here involved a significantly greater amount.

In addition to the misappropriation, Pena failed to cooperate with the disciplinary

investigation. “We have long recognized that it is incumbent upon an attorney to cooperate

with disciplinary authorities in their investigation and resolution of complaints against

[them].” In re Schulte, 869 N.W.2d 674, 678 (Minn. 2015) (alteration added) (quoting In

re Cartwright, 282 N.W.2d 548, 551 (Minn. 1979)) (internal quotation marks omitted).

“[N]oncooperation with the disciplinary process, by itself, may warrant indefinite

suspension and, when it exists in connection with other misconduct, noncooperation

3 There is an argument that Pena’s conduct amounts to felony theft by swindle under Minn. Stat. § 609.52, subd. 2(a)(3), (4) (2024). The commission of felony theft by swindle typically constitutes a violation of Minn. R. Prof. Conduct 8.4(b) (the equivalent of Rule 8.04(a)(2)), TDRPC, and often results in disbarment. See, e.g., In re Brost, 850 N.W.2d 699 (Minn. 2014). We need not determine whether Pena’s misconduct amounts to felony theft by swindle because we conclude that the appropriate discipline for Pena is disbarment based on the other factors present in this case.

7 increases the severity of the disciplinary sanction.” Id. (alteration in original) (quoting

Nelson, 733 N.W.2d at 464) (internal quotation marks omitted). Pena’s failure to cooperate

with the disciplinary investigation increases the serious nature of her misconduct.

“[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). “[W]e distinguish

‘a brief lapse in judgment or a single, isolated incident’ of misconduct from multiple

instances of misconduct ‘occurring over a substantial amount of time.’ ” In re Ulanowski,

834 N.W.2d 697, 703 (Minn. 2013) (quoting In re Fairbairn, 802 N.W.2d 734, 743 (Minn.

2011)). Here, Pena’s actions are neither isolated incidents nor the result of a brief lapse in

judgment. Pena systematically used her position within the Firm to overpay herself for

over two years, and she repeatedly made false statements to the Firm to obtain pay

advances. Pena was also charged with, and is deemed to have admitted to, failing to

participate in the disciplinary investigation. This serves as yet another violation adding to

the cumulative weight of her violations. In re Taplin, 837 N.W.2d 306, 312 (Minn. 2013).

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. In re Brost, 850 N.W.2d 699, 705 (Minn. 2014).

Failing to cooperate with a disciplinary investigation “ ‘harm[s] the legal profession by

8 undermining the integrity of the attorney disciplinary system.’ ” Id. at 705 (alteration in

original) (quoting Ulanowski, 834 N.W.2d at 703). “Failure to cooperate also ‘weakens

the public’s perception of the legal profession’s ability to self-regulate.’ ” Id. (quoting In

re Pitera, 827 N.W.2d 207, 212 (Minn. 2013)). Pena’s failure to comply with the

disciplinary proceeding “undermin[es] the integrity of the attorney disciplinary system” in

addition to the harm caused by her misappropriation. Id. (quoting Ulanowski, 834 N.W.2d

at 703).

We next consider mitigating and aggravating factors related to Pena’s conduct.

Because Pena did not respond to the disciplinary petition, we do not consider any

mitigating factors that she might have raised. See In re Matson, 889 N.W.2d 17, 25 (Minn.

2017) (concluding that we could not consider mitigating factors an attorney might have

raised when the attorney never responded to a disciplinary petition). Here, Pena’s

disciplinary history and her commission of misconduct while suspended are both

aggravating factors.

“After a disciplinary proceeding, we expect a renewed commitment to

comprehensive ethical and professional behavior.” In re Weems, 540 N.W.2d 305, 309

(Minn. 1995). “Accordingly, we consider a lawyer’s prior discipline and professional

misconduct when determining the appropriate discipline for new misconduct.” In re

Rhodes, 740 N.W.2d 574, 580 (Minn. 2007). “Prior disciplinary history ‘weighs heavily’

if the prior discipline was for similar misconduct.” In re Hulstrand, 910 N.W.2d 436, 444

(Minn. 2018) (quoting In re Tigue, 900 N.W.2d 424, 432 (Minn. 2017)). Pena was

disciplined in 2020 for similar misconduct: failure to safeguard client funds and

9 misappropriation of client funds. Though this case deals with misappropriation of firm

funds, rather than client funds, the conduct is similar. This history is therefore an

aggravating factor that “weighs heavily” against Pena.

Finally, an attorney falls short of showing a renewed commitment to the ethical

practice of law when they violate the rules of professional responsibility while suspended.

In re De Rycke, 707 N.W.2d 370, 375 (Minn. 2006). We suspended Pena in 2020, and she

has never petitioned for reinstatement. Pena’s decision to engage in additional misconduct

while suspended is another aggravating factor. See Brost, 850 N.W.2d at 705 (concluding

that an attorney’s similar misconduct while suspended was an aggravating factor).

* * *

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.

CONCLUSION

For the foregoing reasons, respondent Ana L. Pena is disbarred from the practice of

law in the State of Minnesota, effective on the date of this opinion. Respondent must

comply with Rule 26, RLPR (requiring notice to clients, opposing counsel, and tribunals),

and must pay $900 in costs under Rule 24, RLPR.