In re Disciplinary Action against Garcia

• Decision Date: 29 December 2010
• Docket Number: No. A09-877.,A09-877.
• Citation: 792 N.W.2d 434
• Parties: In re Petition for DISCIPLINARY ACTION AGAINST Albert A. GARCIA, Jr., a Minnesota Attorney, Registration No. 219472.
• Court: Minnesota Supreme Court

792 N.W.2d 434

In re Petition for DISCIPLINARY ACTION AGAINST Albert A. GARCIA, Jr., a Minnesota Attorney, Registration No. 219472.

No. A09-877.

Supreme Court of Minnesota.

Dec. 29, 2010.

Syllabus by the Court

Disbarment is the appropriate discipline when a lawyer misappropriates client funds and makes false statements to that client to conceal the misappropriation; makes false statements to the Director of the Office of Lawyers Professional Responsibility and coerces false testimony from the client in the subsequent disciplinary investigation; fails to cooperate with the investigation; fails to file employer withholding tax returns on time and pay those taxes on time; charges a client an unreasonable fee and fails to timely comply with a binding fee arbitration award; and dismisses a client's case without permission, charges an unreasonable fee, and fails to communicate with the client.

Martin A. Cole, Director, Cassie Hanson, Senior Assistant Director, Office of Lawyers Professional Responsibility, St. Paul, Minnesota, for petitioner.

Albert A. Garcia, Jr., Duluth, Minnesota, pro se.

OPINION

PER CURIAM.

This discipline case involving respondent attorney Albert A. Garcia, Jr., arises out of an amended petition for revocation of probation and for further disciplinary action filed by the Director of the Office of Lawyers Professional Responsibility. We suspended Garcia from the practice of law on September 3, 2009, pending final determination of discipline. A court-appointed referee heard evidence for and against the petition, concluded Garcia engaged in misconduct, and recommended that he be disbarred. Based on the referee's findings and our own review of the record, we conclude that Garcia's misconduct warrants disbarment.

Respondent attorney Albert A. Garcia, Jr., was admitted to practice law in Minnesota in 1991. His history of professional misconduct is substantial. In February 2006, Garcia was suspended for 30 days for failing to supervise a non-lawyer employee and for failing to refund the unearned portion of a client retainer. In re Garcia, 709 N.W.2d 237, 237-38 (Minn.2006). He received an admonition in March 2006 for failing to place an advance fee into his client trust account and for failing to comply with the terms of a nonrefundable fee agreement. On January 23, 2008, we publicly reprimanded him and placed him on probation for two years for including unethical terms in a fee agreement, failing to promptly return a substitution of counsel form while he was suspended from the practice of law, and making an unauthorizedcharge to a client's credit card. In re Garcia, 746 N.W.2d 126, 126 (Minn.2008). The case now before us involves several acts of misconduct, the most serious of which, the T.R. matter, began in November 2007.

The T.R. Matter

Garcia represented T.R. and T.R.'s business for several years as an attorney and lobbyist and received a $1,500 monthly retainer. In November 2007, T.R. asked Garcia to hold in his client trust account $27,000 that T.R. had inherited and wanted to have available for a possible business venture. T.R. required Garcia to have T.R.'s permission to disburse the money. T.R. considered Garcia to be his attorney, but T.R. did not owe Garcia any fees at the time he delivered the funds, nor did he give the money as payment of fees.

A check for $27,000 payable to and endorsed by T.R. was deposited in Garcia's trust account on November 13, 2007. T.R. directed Garcia to pay $5,000 to T.R.'s brother to settle a loan, and Garcia did so with a check dated November 13. One of Garcia's family members, who worked in Garcia's office, signed Garcia's name to another check drawn on the trust account, dated November 14, for $19,759.95 payable to the Golden Valley Country Club. And Garcia signed two checks, dated November 15 and November 20, for $973 and $1,400, payable to the family member who worked in Garcia's office. None of those payments were authorized by T.R.

From February 2008 through April 2008, T.R. asked Garcia several times to issue a $7,000 check from the trust account to settle a lawsuit. On April 14, 2008—the day the case was set for trial—T.R. signed an agreement requiring him to pay the $7,000 by April 30, 2008. On April 30, Garcia delivered a cashier's check for $7,000 that was not and could not have been secured with funds drawn from his trust account, as the balance of that account never exceeded $344 from November 27, 2007 through February 2009, the last month for which an account statement is in the record. T.R. asked Garcia to return the rest of his money several times during 2008. T.R. filed his complaint with the Director on August 28, 2008, after a friend investigated several of the reasons given by Garcia for his inability to return the money and concluded they were false. Garcia made some partial payments, but the referee found that Garcia still owes T.R. $5,500.

Presenting False Information, Coercing False Testimony, and Failing to Cooperate During the Disciplinary Investigation

Garcia answered the Director's notice of investigation of the T.R. matter by submitting an affidavit signed by T.R. on October 27, 2008. In an accompanying letter, Garcia said T.R.'s affidavit would serve as his answer. Garcia denied he had represented T.R. in any personal matter and stated that he "join[ed]" T.R. in asking for the disciplinary complaint to be dismissed. On December 1, 2008, Garcia submitted an amended affidavit from T.R., dated November 12, 2008. The amended affidavit was different from the October 27 affidavit in only one respect: The date on which T.R. claimed to have received the inheritance was changed so it fell within a period for which Garcia had submitted bank records to the Director. In a letter sent with the amended affidavit, Garcia explained the date in the original affidavit was wrong because of a dictation error and informed the Director that he had "submitted my trust records for the period that [T.R.] told me.... Hence my submissions are consistent with the period that [T.R.] has attested to" regarding the inheritance and business venture. The Director made at least four requests for trust account records for the period including the November2007 transactions but Garcia never complied. The Director obtained the records through an investigatory subpoena.

On July 28, 2009, T.R. signed a third affidavit that was subsequently filed with our court in support of the Director's motion for Garcia's temporary suspension. In this third affidavit, T.R. stated that Garcia presented him with both the October 27 affidavit and the November 12 amended affidavit already drafted and notarized. T.R. stated that Garcia "told me that if I signed the [first] affidavit he would be able to pay my inheritance funds to me. He also told me that the Office of Lawyers Professional Responsibility would prosecute me for perjury if I did not sign the affidavit." T.R. stated that in subsequent visits and telephone calls, Garcia made "harassing statements" that T.R. considered to be attempts to convince T.R. not to cooperate with the Director.

In the July 28 affidavit, T.R. stated that he signed his earlier affidavits without reading them and later learned the affidavits included several false statements. For example, in T.R.'s earlier affidavits, T.R. denied giving his inheritance funds to Garcia and claimed to have invested the funds in a business venture that T.R.'s wife opposed; in the July 28 affidavit, T.R. stated he did give the inheritance funds to Garcia for safekeeping. In T.R.'s earlier affidavits, T.R. stated that he had asked Garcia to draft the complaint to the Director so T.R. could show it to his wife and demonstrate he did not use the inheritance funds for the business venture. T.R. also claimed in the earlier affidavits that the complaint was taken from his desk and faxed to the Director without his knowledge. In the July 28 affidavit, T.R. stated that his wife knew of the business venture and that he willingly filed the complaint with the Director because Garcia would not return T.R.'s inheritance funds. In the July 28 affidavit, T.R. also stated that Garcia had represented T.R. personally and T.R.'s business, contradicting Garcia's claim to have only represented T.R.'s business.

At the referee hearing, Garcia testified that he was free to use the funds T.R. gave him without restriction, so long as the funds were available when requested by T.R. Garcia then testified that the funds were available at all times in other accounts. The referee found this testimony to be not credible because, among other reasons, the testimony contradicted Garcia's initial statements during the investigation. The referee also found T.R.'s testimony to the contrary to be credible and corroborated. Garcia offered into evidence a document that appeared to be a written authorization by T.R. dated December 19, 2007, for Garcia to transfer $5,000 from Garcia's trust account to Garcia's law firm business account "for the payment of legal services." The referee found this document to be fabricated and an attempt to conceal Garcia's misappropriation.

The A.S. Matter

A.S. retained Garcia to represent him in an effort to withdraw a guilty plea entered under an agreement negotiated by a different attorney. A.S., who had not yet been sentenced, consulted with Garcia about seeking a more favorable deal, signed a fee agreement providing for a non-refundable $10,000 retainer, and paid $4,500. Garcia told A.S. he had a good chance of successfully withdrawing his plea.

Garcia filed a one-page motion to withdraw the guilty plea but submitted no memorandum or caselaw to support the request. Garcia appeared in court with A.S. three times: first at a hearing at which the proceedings were continued; second at a hearing at which the court denied the motion to withdraw; and thirdat sentencing, when the court imposed the sentence called for in the initial agreement. Garcia also filed a one-page motion for...