In re Petition for Disciplinary Action Against Alan J. Albrecht

• Citation: 845 N.W.2d 184
• Decision Date: 09 April 2014
• Docket Number: No. A13–0520.,A13–0520.
• Parties: In re Petition for DISCIPLINARY ACTION AGAINST Alan J. ALBRECHT, a Minnesota Attorney, Registration No. 191826.
• Court: Minnesota Supreme Court

845 N.W.2d 184

In re Petition for DISCIPLINARY ACTION AGAINST Alan J. ALBRECHT, a Minnesota Attorney, Registration No. 191826.

No. A13–0520.

Supreme Court of Minnesota.

April 9, 2014.

Syllabus by the Court

The respondent's misconduct warrants disbarment.

Martin A. Cole, Director, Robin J. Crabb, Senior Assistant Director, Office of Lawyers Professional Responsibility, Saint Paul, MN, for petitioner.

Alan J. Albrecht, Brooklyn Center, MN, pro se.

OPINION

PER CURIAM.

The Director of the Office of Lawyers Professional Responsibility petitions for disciplinary action against attorney Alan J. Albrecht. The Director's initial petition alleged that Albrecht violated numerous rules of professional conduct and one rule of professional responsibility by engaging in sexual activity with a client, giving legal advice while suspended from practicing law, being paid for that unauthorized legal advice and lying to the Director about the payment, and failing to cooperate with the Director's investigation. We referred the matter to a referee. The Director later filed a supplementary petition alleging that Albrecht violated additional rules by lying to or misleading the referee and Director during the disciplinary proceedings and submitting false or misleading information to the Director.

After a hearing, the referee recommended that we disbar Albrecht. The Director agrees. Albrecht disputes the findings and conclusions underlying the referee's recommendation and proposes less severe discipline, such as suspension with conditions on reinstatement. While we conclude that some of the referee's legal conclusions are erroneous and should be disregarded, we agree that Albrecht should be disbarred.

I.

Albrecht's disciplinary history is extensive. Since Albrecht joined the Minnesota bar in 1988, the Director has privately admonished him 13 times, first in 1993 and most recently in 2011. Three times we have placed Albrecht on supervised probation, In re Albrecht ( Albrecht IV ), 660 N.W.2d 790, 797 (Minn.2003); In re Albrecht ( Albrecht III ), 577 N.W.2d 712, 713 (Minn.1998) (order); In re Albrecht ( Albrecht I ), 565 N.W.2d 704, 705 (Minn.1997) (order), twice suspended him for a defined period, Albrecht IV, 660 N.W.2d at 797 (90 days); In re Albrecht ( Albrecht II ), 573 N.W.2d 89, 91 (Minn.1998) (order) (45 days), once publicly reprimanded him, Albrecht I, 565 N.W.2d at 705, and, most recently, suspended him indefinitely, In re Albrecht ( Albrecht V ), 779 N.W.2d 530, 543 (Minn.2010) (minimum of 2 years). That final suspension is still in effect. Albrecht's past misconduct included receiving checks that were not payable to him, neglectful and incompetent representation, dishonesty to clients and opposing counsel, failing to inform clients of his suspensions, practicing law while suspended, and failing to cooperate with the Director's investigations.

The misconduct for which the Director requests that we now disbar Albrecht relates to four distinct episodes: Albrecht's sexual relationship with a client, K.A.; Albrecht's work on matters related to client J.M.'s bankruptcy; Albrecht's receipt of payment for the J.M. matters; and Albrecht's attempts to take a final exam while auditing a course at Hamline Law School. We discuss each in turn.

A.

Albrecht began representing K.A. in January 2005.¹ He represented her continuously until May 2007, and then again from July to November 2007. The matters in which Albrecht represented K.A. included the post-decree portion of a marriage dissolution and child-custody dispute, a different marriage dissolution, and two prosecutions for driving while impaired. During the representation, Albrecht knew that K.A. was abusing alcohol and had attempted suicide.

Sometime in 2005, after the representation began, Albrecht and K.A. engaged in consensual sexual relations in locations that included Albrecht's office suite. By January 2006, K.A. sought to end their sexual relationship. Albrecht began to pressure K.A. for sexual favors. From May 2006 to November 2007, when the representation ended, Albrecht pressured K.A. to engage in sexual activity every time she came to his office for legal advice.

The Director alleged, and the referee concluded, that Albrecht violated Minn. R. Prof. Conduct 1.8(j)² by having sexual relations with K.A. while representing her.

B.

In 2010, we suspended Albrecht from the practice of law for a minimum of two years. Albrecht V, 779 N.W.2d at 543. Shortly thereafter, Albrecht began working as a paralegal for Thao & Li, P.A. Thao & Li consisted of a single lawyer, Frances Li.

In early August 2011, J.M. sought legal assistance in filing for bankruptcy. On behalf of Thao & Li, Albrecht prepared and entered into a written retainer agreement with J.M. Albrecht did not consult Li, even though she had the sole authority to accept representations and bill for the firm. Albrecht remained J.M.'s primary source of legal advice throughout the representation. J.M. never spoke with Li during the representation.

J.M.'s initial concern was that his creditors were trying to repossess vehicles he owned. Albrecht advised him about the effect of filing for bankruptcy. Thao & Li then initiated a bankruptcy filing on J.M.'s behalf, which led to an automatic stay of collection activities, but the firm missed the deadline for completing the filing. When the bankruptcy court dismissed the incomplete filing and lifted the stay and J.M.'s creditors again sought to repossess one of his vehicles, Albrecht advised J.M. that J.M. could prevent the repossession by avoiding service.

Later that fall, the trustee in J.M.'s bankruptcy filed a motion to compel J.M. to turn over certain information, including a copy of the title to another of his vehicles. Albrecht advised J.M. about the meaning and effect of the motion. Specifically, he told J.M. the motion was “bogus.” J.M. then appeared without representation at a hearing and told the bankruptcy judge that the motion was “bogus.” After the hearing, the bankruptcy judge ordered J.M. and Li to appear and explain, among other things, how and why Albrecht told J.M. the motion was “bogus.” The bankruptcy judge scheduled their appearance for March 2012.

Around the same time, Thao & Li submitted a complete bankruptcy petition and the bankruptcy court granted J.M.'s discharge. A creditor then initiated an action in state court to repossess one of J.M.'s vehicles and moved for default or summary judgment. The state court judge scheduled a hearing on the motion, also in March 2012.

In early March, before the hearing in state court or J.M.'s appearance before the bankruptcy judge, Albrecht telephoned J.M. Albrecht said he was helping J.M. by drafting an affidavit, regarding matters in the repossession action. Albrecht also advised J.M. on the upcoming appearance before the bankruptcy judge. Albrecht coached J.M. on what to say, suggested that J.M. lie and say he had been confused at the hearing on the motion, and practiced J.M.'s testimony with him.

The Director alleged that Albrecht violated Minn. R. Prof. Conduct 5.5³ and 5.8(b)(1) and (6)⁴ by giving J.M. legal advice while suspended from practicing law. The referee agreed that Albrecht violated Rule 5.5 but concluded that Albrecht did not violate Rule 5.8, because that rule “appears directed at supervising lawyers rather than non-lawyers including suspended or disbarred lawyers.” ⁵

C.

In mid-August 2011, a friend of J.M. gave Albrecht a check for $600 as partial payment for Thao & Li's work on J.M.'s bankruptcy. Albrecht told Li about the check, but incorrectly said it was for $800. Li gave Albrecht permission to deposit the check to his bank account as payment for his work.

On August 24, J.M.'s girlfriend wired $850 directly to Albrecht's personal bank account as partial payment for work on J.M.'s bankruptcy. This time, Albrecht did not tell Li about the payment or convey the money to Thao & Li.

Albrecht prepared an invoice, dated August 24, 2011, describing his work for Thao & Li on J.M.'s bankruptcy and listing $900 as the value of his services. Albrecht signed the invoice and wrote, “paid 8/24.” Li believed the invoice referred to the check she had let Albrecht keep. Thao & Li did not receive any other payment for representing J.M. in his bankruptcy.

During his investigation, the Director asked Albrecht about the August 24 wire transfer. Albrecht told the Director that he did not learn of the payment until July 2012.

The Director alleged that Albrecht violated Minn. R. Prof. Conduct 1.15(a), ⁶5.8(b)(5),⁷ and 8.4(c) and (d)⁸ by receiving, retaining, and failing to report or transfer the payment and violated Minn. R. Prof. Conduct 8.1(b)⁹ and 8.4(c) and (d) and Rule 25, RLPR,¹⁰ by lying to the Director about the wire transfer. The referee again concluded that Albrecht did not violate Rule 5.8, but otherwise agreed with the Director's allegations. The referee also concluded that Albrecht violated Minn. R. Prof. Conduct 5.5 by handling client funds while suspended.

Albrecht challenges the referee's conclusion on the ground that the Director did not charge a violation of Rule 5.5 for handling funds related to J.M.'s bankruptcy. Albrecht is correct; the Director alleged that, “by receiving, disbursing, or otherwise handling client funds in the [J.M.] matter ... while performing paralegal services for Thao & Li, P.A., [Albrecht] violated Rule 5.8(b)(5), MRPC.” (Emphasis added.) Therefore, because this violation of Rule 5.5, though found by the referee, was not “set forth” in the Director's petition as required by Rule 12(a), RLPR, we decline to consider it.¹¹See In re Getty, 452 N.W.2d 694, 696 n. 1 (Minn.1990); cf. In re Peterson, 260 Minn. 339, 345, 110 N.W.2d 9, 13 (1961) (“[T]he charges of professional misconduct, though informal, should be sufficiently clear and definite, in the light of the circumstances of each case, to afford the respondent an opportunity to prepare and present his defense.”).

Albrecht...