In re Disciplinary Action Against Albrecht, No. C3-97-356.

• Decision Date: 15 May 2003
• Docket Number: No. C3-97-356.
• Parties: In re Petition for DISCIPLINARY ACTION AGAINST Alan J. ALBRECHT, an Attorney at Law of the State of Minnesota.
• Court: Minnesota Supreme Court

660 N.W.2d 790

In re Petition for DISCIPLINARY ACTION AGAINST Alan J. ALBRECHT, an Attorney at Law of the State of Minnesota.

No. C3-97-356.

Supreme Court of Minnesota.

May 15, 2003.

Kenneth L. Jorgenson, Director, Patrick R. Burns, Senior Assistant Director, Office of Lawyers Professional Responsibility, St. Paul, for Petitioner.

Matthew J. Franken, Rebecca Egge Moos, Bassford, Lockhart, Truesdell & Briggs, P.A., Minneapolis, for Respondent.

Heard, considered, and decided by the court en banc.

OPINION

PER CURIAM.

By order dated January 9, 1998, Alan J. Albrecht was suspended from the practice of law for 45 days. Albrecht was re-admitted to the practice of law on April 14, 1998. As part of his re-admission, Albrecht was required to, among other things, satisfactorily complete four years of supervised probation. On October 10, 2001, pursuant to Rule 12(a), Rules on Lawyers Professional Responsibility (RLPR), the Director of the Office of Lawyers Professional Responsibility (Director) served on Albrecht and filed with this court a petition for revocation of probation alleging professional misconduct in three client matters. On May 28, 2002, Renville County District Court Judge Randall J. Slieter, acting as referee, held a hearing on the petition. The referee issued his findings of fact, conclusions of law, and recommendation for discipline on July 15, 2002. Based on his findings and conclusions, the referee recommended that Albrecht serve an additional two years on supervised probation subject to the same terms and conditions that were set forth in this court's April 14, 1998, order re-admitting Albrecht to the practice of law in Minnesota.

The Director ordered a transcript of the referee proceedings pursuant to Rule 14(e), RLPR and, thus, the referee's findings and conclusions are not conclusive.¹ The Director challenges findings 3, 15, 19, 20, 22, 23, 25, and 26, conclusions 4 and 7, and the recommendation for discipline. The Director recommends that Albrecht be suspended from the practice of law for a minimum of one year. In response, Albrecht argues that the referee's findings and conclusions are not clearly erroneous and that a one-year suspension would not serve the policies underlying attorney discipline.

I.

Albrecht was admitted to practice law in Minnesota in 1988 and has been a solo practitioner since the mid-1990s. In 1993, Albrecht received the first of nine admonitions from the Office of Lawyers Professional Responsibility. In addition, Albrecht has been the subject of public discipline three times. The first admonition was for negotiating checks that were not payable to him and for failing to properly deposit checks into his trust account. Albrecht was admonished twice in 1994 for making misleading statements to clients. He was admonished twice more in 1997 for overbilling and for failing to cooperate with the Director's investigation.

In July of 1997, Albrecht stipulated to a public reprimand and two years of supervised probation. In re Albrecht, 565 N.W.2d 704, 705 (Minn.1997). The reprimand was based on a pattern of failing to cooperate with the Director, neglecting client matters, non-communication with clients, and failing to deposit a retainer in a trust account as required. Id. at 704. As part of the stipulation, Albrecht was required to regularly review his files, be supervised by another attorney, complete legal matters on a timely basis, set up appropriate office procedures, cooperate with the Director's office in its efforts to monitor compliance with probation, and abide by the Minnesota Rules of Professional Conduct (MRPC). Id. at 705.

Albrecht stipulated to further discipline in January and again in April of 1998. In re Albrecht, 573 N.W.2d 89 (Minn.1998); In re Albrecht, 577 N.W.2d 712 (Minn.1998). In January 1998, Albrecht stipulated to a 45-day suspension for failing to promptly respond to correspondence from the Director, in violation of his probation. In re Albrecht, 573 N.W.2d at 90. The stipulation provided that, on re-admission, Albrecht was required to provide the Director's office with a written plan to ensure compliance with his probation, provide progress reports as requested, and continue his current mental health treatment, medication, and therapy programs, in addition to the probation requirements set forth in the July 1997 stipulation. Id. at 90-91. The April stipulation was based on Albrecht's failure to diligently pursue the matters of seven clients and failure to timely pay a judgment against his firm. In re Albrecht, 577 N.W.2d at 712. As part of the April stipulation, Albrecht was reinstated to the practice of law and placed on an additional four years of supervised probation. Id. at 713. The terms of the probation were essentially the same as those set forth in the January 1998 disciplinary matter. See id. at 712-13. Albrecht acquired a new supervisor in July 1998.

After the April 1998 discipline, Albrecht was admonished four more times. He was admonished twice in 1999, once for failing to pay a court reporter for services provided, and once for failing to promptly return an unused retainer. He was admonished in 2000 for prejudicing the administration of justice by leaving an opposing counsel with the impression that he was representing a client at trial, when he was not. Finally, Albrecht was admonished in 2001 for making false statements to a client in order to collect fees.

On December 26, 2001, the Director filed the instant petition alleging that Albrecht engaged in misconduct in matters involving three clients: Arnovich, Raatz, and Christopherson.² The Arnovich matter involved Albrecht's failure to provide a timely response to the Minnesota Department of Human Rights (MDHR) in an employment-discrimination matter. As a result, the MDHR dismissed Arnovich's complaint. Albrecht subsequently commenced a civil action on Arnovich's behalf, but took no other action between the summer of 1999 and September of 2000, when Arnovich terminated Albrecht's services. The referee concluded that there was clear and convincing evidence that Albrecht's conduct in the Arnovich matter violated Rules 1.3 and 1.4, MRPC. The Director does not challenge the referee's findings and conclusions with respect to the Arnovich matter.

In the Raatz matter, Albrecht filed an untimely appeal of a district court order with the court of appeals. The court of appeals dismissed the untimely appeal. Albrecht did not inform Raatz that the appeal had been filed or that the court of appeals dismissed the appeal. Subsequent to the dismissal of the appeal, Albrecht recommended that Raatz commence a second lawsuit involving essentially the same issues that had been finally resolved as the result of the court of appeals' dismissal of the untimely appeal. The subsequent lawsuit was dismissed with prejudice based on res judicata and collateral estoppel by the district court, which also awarded attorney fees against Albrecht. The referee found that Albrecht did not keep Raatz reasonably informed and did not act with reasonable diligence in representing Raatz. Thus, the referee found that Albrecht violated Rules 1.3 and 1.4, MRPC. The referee also found, however, that on the facts presented he could not conclude that the second lawsuit was frivolous. The referee did not find any violations with respect to Rules 1.1, 3.1, 8.1(a)(1), or 8.4(c), MRPC. Finally, the referee noted that he was "confident that necessary changes in [Albrecht's] practice will eliminate the repeat of the timing issue that led to the dismissal of the [Raatz] appeal."

In the Christopherson matter, Christopherson sought Albrecht's assistance in an employment-based age-discrimination case. Albrecht was initially retained by Christopherson in June of 1996. In the stipulation that led to this court's April 14, 1998, order reinstating Albrecht to the practice of law, Albrecht admitted that he had neglected Christopherson's employment matter and that the statute of limitations on her claim against her former employer had run no later than June 7, 1997. At no time, either before or after he was disciplined for his neglect in the Christopherson matter, did Albrecht inform Christopherson that the statute of limitations on her claim had run.

Notwithstanding the fact that the statute of limitations had expired, Albrecht arranged for Christopherson to come to his office and sign a pro se complaint that he had drafted and that was ultimately served on Christopherson's former employer. Although it is not clear when Albrecht drafted the complaint, it is clear that Christopherson came to his office to sign it during the time that Albrecht was suspended from the practice of law.

With respect to this employment-discrimination claim, the referee found that Christopherson's testimony was not credible and that it was not clear from the evidence when Albrecht drafted the complaint or whether he practiced law during a period in which he was suspended from the practice of law. The referee nonetheless found that Albrecht failed to keep Christopherson reasonably informed about the status of her matter, failed to promptly reply to her requests for information, and failed to act with reasonable diligence and promptness in representing her. He thus found a violation of Rule 1.4, MRPC. He specifically found no violations of Rules 1.1, 3.1, 4.1, 5.5, or 8.4(c), MRPC.

While finding that Albrecht violated Rule 1.3, MRPC, in the Arnovich and Raatz matters and Rule 1.4, MRPC, in the Arnovich, Raatz, and Christopherson matters, the referee also found that Albrecht's misconduct was mitigated as a result of supervision "that he is currently participating in" and that the existence of a medical condition, sleep apnea, contributed to the disciplinary matters. With respect to Albrecht's previous discipline, the referee found that disciplinary history was not an aggravating factor because there were mitigating circumstances surrounding each previous...