Utah State Bar v. Lundgren (In re Lundgren)

• Decision Date: 21 July 2015
• Docket Number: No. 20130739.,20130739.
• Citation: 2015 UT 58,355 P.3d 984
• Parties: In the Matter of the DISCIPLINE OF Alvin R. LUNDGREN. Utah State Bar, Appellee, v. Alvin R. Lundgren, Appellant.
• Court: Utah Supreme Court

355 P.3d 984

2015 UT 58

In the Matter of the DISCIPLINE OF Alvin R. LUNDGREN.Utah State Bar, Appellee

v.Alvin R. Lundgren, Appellant.

No. 20130739.

Supreme Court of Utah.

July 21, 2015.

Billy L. Walker, Adam C. Bevis, Salt Lake City, for appellee.

Alvin R. Lundgren, Mountain Green, pro se.

Justice HIMONAS authored the opinion of the Court, in which Chief Justice DURRANT, Associate Chief Justice LEE, Justice DURHAM, and Judge ROTH joined. Having recused herself, Justice PARRISH does not participate herein; Court of Appeals Judge STEPHEN L. ROTH sat.

Justice HIMONAS, opinion of the Court:

INTRODUCTION

¶ 1 Intentionally misappropriating a client's money is at or near the top of the list of things a lawyer should never do. But that is what Alvin Lundgren did when he took Janet Best's money from his client trust account for his own purposes. Upon discovering the defalcation, Ms. Best reported Mr. Lundgren to the Utah State Bar Office of Professional Conduct (OPC). Following an investigation, the OPC filed a complaint in district court against Mr. Lundgren. Based on his admitted misconduct, the district court granted the OPC's motion for summary judgment and disbarred Mr. Lundgren. Mr. Lundgren timely appealed. We affirm his disbarment and state again that a Utah attorney who intentionally misappropriates client funds will be disbarred unless the attorney can show truly compelling mitigating circumstances.

BACKGROUND

¶ 2 Mr. Lundgren had been practicing law for twenty years when Ms. Best hired him to pursue a workers' compensation claim. In February 2009, Ms. Best settled her claim for $24,906. Per her instructions, Mr. Lundgren retained $2,500 of Ms. Best's share of the settlement proceeds in his client trust account in order to pay her outstanding medical bills. However, in July of 2010, Ms. Best's doctor, Carl Mattson, informed her that her medical bills remained outstanding. Ms. Best called Mr. Lundgren numerous times and left several messages, but Mr. Lundgren failed to respond.

¶ 3 Ultimately, in December of 2010, Ms. Best sent Mr. Lundgren a letter asking him to account for her settlement funds. She attached a copy of Dr. Mattson's bill. Mr. Lundgren did not reply, nor did he account for the $2,500 entrusted to him.

¶ 4 He later claimed to have lost Ms. Best's case file. As a result of Mr. Lundgren's failure to respond and failure to use the settlement funds as directed, Ms. Best filed a complaint with the Utah State Bar. On August 12, 2011, the OPC sent Mr. Lundgren notice of Ms. Best's informal complaint. As part of its investigation, the OPC asked Mr. Lundgren to provide bank records of the deposits and withdrawals made to and from his client trust account from March 2009 through October 2010. The OPC did not receive this information, although Mr. Lundgren claims that he sent it.

¶ 5 The OPC referred the case to a screening panel of the Ethics and Discipline Committee, which heard the matter on January 26, 2012. At the hearing, Mr. Lundgren admitted under oath that he had taken Ms. Best's money from his client trust account for his own personal use. He further testified that over the course of about four years, he had taken money belonging to other clients from his client trust account to cover business and personal expenses.¹ None of Mr. Lundgren's clients authorized him to take their money from the trust account for his benefit.

¶ 6 At some point after receiving notice of Ms. Best's complaint, but prior to the hearing before the screening panel, Mr. Lundgren set up monthly payments of $300 to Dr. Mattson to pay Ms. Best's medical expenses—ostensibly because he did not have enough money to pay Ms. Best's medical bill in full. Mr. Lundgren ultimately accounted for Ms. Best's full settlement monies by paying Dr. Mattson's bill and reimbursing the rest of the money to her.

¶ 7 Following the hearing, the screening panel directed the OPC to file a formal complaint in district court against Mr. Lundgren, and the OPC did. The OPC then moved for summary judgment, which the district court granted. The court concluded that Mr. Lundgren violated rules 1.15(a) and (d) of the Utah Rules of Professional Conduct by misappropriating client funds and rule 8.1(b) by “knowingly fail[ing] to respond to a lawful demand for information” made by the OPC.²

¶ 8 Thereafter, the district court conducted a sanctions hearing “to receive relevant evidence in aggravation and mitigation.” Sup. Ct. R. Prof'l Prac. 14–511(f). Following the Standards for Imposing Lawyer Sanctions of the Supreme Court Rules of Professional Practice—rule 14–607—the district court considered various mitigating factors, including Mr. Lundgren's (1) “absence of a prior record of discipline,” (2) “good character and reputation,” and (3) “remorse.” The court then determined that none of the evidence presented was “truly compelling,” and thus did not justify departure from the presumptive sanction of disbarment. SeeSup. Ct. R. Prof'l Prac. 14–605. The court explicitly rejected Mr. Lundgren's claim that his financial hardship should be considered a mitigating factor. Before imposing sanctions, the court also considered aggravating factors, which included Mr. Lundgren's dishonesty, his pattern of misconduct, and his extensive experience in practicing law. The court imposed the sanction of disbarment for Mr. Lundgren's misconduct. He timely appealed.

STANDARD OF REVIEW

¶ 9 Mr. Lundgren does not challenge the grant of summary judgment with regard to his violation of rule 1.15(a) and (d).³ Accordingly, we are asked to review only the district court's decision to disbar Mr. Lundgren. Under the Utah Constitution, this court has the duty and the authority to “govern the practice of law, including admission to practice law and the conduct and discipline of persons admitted to practice law.” Utah Const. art. VIII, § 4. Generally, we do not overturn a district court's findings of fact unless they are “arbitrary, capricious, or plainly in error.” In re Discipline of Babilis, 951 P.2d 207, 213 (Utah 1997) (internal quotation marks omitted). However, “in light of our constitutional mandate and the unique nature of disciplinary actions,” we review district court findings in attorney discipline matters with less deference. Id. (internal quotation marks omitted). In this area, we retain “the right to draw different inferences from the facts” in order to “make an independent determination” of the correctness of the discipline the district court imposed. In re Discipline of Crawley, 2007 UT 44, ¶ 17, 164 P.3d 1232 (internal quotation marks omitted); see also In re Discipline of Corey, 2012 UT 21, ¶ 23 n. 13, 274 P.3d 972.

ANALYSIS

I. DISBARMENT WAS THE APPROPRIATE SANCTION FOR MR. LUNDGREN'S MISCONDUCT

¶ 10 The Utah Supreme Court Rules of Professional Practice govern, among other things, the ethical practice of law in the State of Utah and provide the standards for imposing sanctions on attorneys who violate the rules. SeeSup. Ct. R. Prof'l Prac. 1.0 to 8.5 (“Rules of Professional Conduct”), 14–601 to 14–607 (“Standards for Imposing Lawyer Sanctions”). Chapter fourteen, article 6 provides the Utah State Bar with rules for imposing sanctions on attorneys who have “engaged in professional misconduct.” Id. 14–603(a). These rules are designed to “maintain the high standard of professional conduct required of those who undertake the discharge of professional responsibilities as lawyers.” Id. 14–602(b). Further, the rules allow judges “flexibility and creativity in assigning sanctions” when a lawyer has committed misconduct. Id. 14–602(d). A court should consider specific factors when imposing sanctions, including “(a) the duty violated; (b) the lawyer's mental state; (c) the potential or actual injury caused by the lawyer's misconduct; and (d) the existence of aggravating or mitigating factors.” Id. 14–604(a)–(d).

¶ 11 Though the rules allow for flexibility in most cases, there are presumptive sanctions for the most egregious types of misconduct. Disbarment is the presumptive sanction when a lawyer either “knowingly engages in professional misconduct ... with the intent to benefit the lawyer ... and causes serious or potentially serious injury to a party” or “engages in serious criminal conduct, a necessary element of which includes ... misappropriation, or theft.” Id. 14–605(a)(1), (2). And though disbarment is the harshest sanction available in the realm of attorney misconduct—“the proverbial professional death-sentence,” In re Discipline of Corey, 2012 UT 21, ¶ 40, 274 P.3d 972 —we have long said that intentional misappropriation of client funds is one of, if not the most “severe” kind of misconduct in the legal profession. In re Discipline of Grimes, 2012 UT 87, ¶ 15, 297 P.3d 564. Misappropriation of client funds undermines the relationship between attorney and client and damages the legal profession as a whole. Indeed, this court and others have not minced words when addressing it, describing it as “always indefensible,” In re Discipline of Babilis, 951 P.2d 207, 217 (Utah 1997) ; something “we cannot tolerate,” In re Discipline of Johnson, 2001 UT 110, ¶ 14, 48 P.3d 881 ; a form of “ethical dereliction,” In re Blumenstyk, 152 N.J. 158, 704 A.2d 1, 4 (1997) ; “the gravest form of professional misconduct,” Att'y Grievance Comm'n v. Pattison, 292 Md. 599, 441 A.2d 328, 333 (1982) ; and an act that “reflects poorly on the entire legal profession and erodes the public's confidence in lawyers.” In re Disciplinary Action Against Rooney, 709 N.W.2d 263, 270 (Minn. 2006). As we explained in Babilis, a seminal Utah case in this area, intentional misappropriation of client funds “strikes at the very foundation of the trust and honesty that are indispensable to the functioning of the attorney-client relationship and, indeed, to the functioning of the legal profession itself.” 951 P.2d at 217.

¶ 12 Because intentional misappropriation of client funds is so deeply concerning and intolerable to our...