In the Matter of Alvin R. Lundgren, Respondent.
proceeding in discipline. Disbarment.
Kimberly L. Knoll, Deputy Disciplinary Administrator, argued
the cause, and Stanton A. Hazlett, Disciplinary
Administrator, was with her on the formal complaint for the
Respondent did not appear.
an uncontested original proceeding in discipline filed by the
office of the Disciplinary Administrator against respondent,
Alvin R. Lundgren, of Veyo, Utah, an attorney admitted to the
practice of law in Kansas in 1990.
20, 2016, the office of the Disciplinary Administrator filed
a formal complaint against respondent alleging violations of
the Kansas Rules of Professional Conduct (KRPC). Respondent
filed an answer on August 15, 2016. A hearing was held on the
complaint before a panel of the Kansas Board for Discipline
of Attorneys on October 6, 2016, at which the respondent
appeared pro se. The hearing panel determined that respondent
violated KRPC 1.15(a) and (d) (2017 Kan. S.Ct. R. 326)
(safekeeping property); 8.3(a) (2017 Kan. S.Ct. R. 378)
(reporting professional misconduct); 8.4(c) (2017 Kan. S.Ct.
R. 379) (engaging in conduct involving dishonesty, fraud,
deceit, or misrepresentation); Kansas Supreme Court Rule
207(c) (2017 Kan. S.Ct. R. 246) (failure to report action);
and Kansas Supreme Court Rule 208(c) (2017 Kan. S.Ct. R. 246)
(failure to notify Clerk of the Appellate Courts of change of
conclusion of the hearing, the panel made the following
findings of fact and conclusions of law, together with its
recommendation to this court:
of Fact . . . .
"6. In August 1989, the Utah Supreme Court admitted the
respondent to the practice of law in Utah.
"7. The Kansas Supreme Court admitted the respondent to
the practice of law in the State of Kansas on September 20,
"8. The Missouri Supreme Court also admitted the
respondent to the practice of law in 1990.
"9. On April 12, 1994, the California Supreme Court
admitted the respondent to the practice of law. Prior to his
admission to the practice of law in the State of California,
the respondent engaged in misconduct.
'In November 1992, Respondent was hired by Checkrite to
perform debt collection work. Checkrite hired Respondent to
recover debts from checks written on insufficient funds and
closed bank accounts that had been issued to California
merchants. At the time, Respondent was working as an attorney
'Between April 1993 and August 1993, Respondent sent
letters to debtors on letterhead which stated "Lundgren
& Associates, P.C. Attorneys at Law." The letterhead
listed an address in Sacramento, California. At the time,
Respondent was not admitted to practice law in the State of
California. The letterhead did not mention the jurisdictions
that Respondent was admitted as a member of the bar.
'In June 1993, Respondent sent a check to the State
Bar's Committee of Bar Examiners to pay fees associated
with his application for admission to the State Bar of
California. The check was imprinted with Respondent's
Sacramento address and indicated that the account belonged to
"Lundgren & Associates, P.C., Attorneys at
Law." Respondent was not admitted to the practice of law
in California until April 12, 1994.
'By sending out letters and issuing checks imprinted with
"Attorney at Law, " Respondent held himself out as
being entitled to practice law in the State of California in
violation of Business and Professions Code sections 6125(a)
'Conclusions of Law: By the foregoing conduct, Respondent
committed a willful violation of Business and Professions
Code section 6068(a).
'Counts Five and Eight:
'In 1993, a civil complaint was filed against Respondent
and other defendants for violations of the federal Fair Debt
Collections Act and the California Unfair Business Practices
Act, in a suit entitled Newman v. Checkrite, Eastern
District Court of California, U.S. District Court case number
CIV-S-93 1557 LKK PAN.
'On January 25, 1994, Respondent appeared at a scheduling
conference acting as the attorney for defendant [D.K.] in the
Newman case. Prior to February 18, 1994, Respondent
negotiated with plaintiff's counsel to obtain an
extension of time for [D.K.] to respond to plaintiff's
'Respondent was not admitted to practice law in the U.S.
District Court for the Eastern District of California until
May 18, 1994. Respondent did not seek pro hac vice status to
practice in the court pending his admission to this State Bar
of California. He also did not inform the court that he was
not admitted to practice in the U.S. District Court for the
Eastern District of California at the time that he made the
appearance on behalf of [D.K.].
'By making an appearance in court on behalf of a client
in negotiating an extension of time prior to being admitted
to the practice of law before the federal court, Respondent
engaged in the practice of law in a jurisdiction while he was
not licensed to do so.
'Conclusions of Law: By the foregoing conduct, Respondent
committed a willful violation of Rules 1-300(B) and 5-200(B)
of the Rules of Professional Conduct.'
"10. On July 13, 1998, the California Supreme Court
entered an order suspending the respondent's license to
practice law in that state for a period of 18 months. After
serving 1-month suspension, the respondent was placed on
"11. On February 22, 2000, the Missouri Supreme Court
entered an order concluding that the respondent violated Rule
4-5.5 (a) for engaging in the unauthorized practice of law in
California. That court entered an order indefinitely
suspending the respondent from the practice of law in
Missouri. Thereafter, on May 30, 2000, the Missouri Supreme
Court reinstated the respondent's license to practice
"12. J.B. filed a complaint against the respondent with
the Utah State Bar, Office of Professional Conduct
('OPC'). Thereafter, on October 31, 2012, the OPC
filed a motion for summary judgment in the second district
court for Morgan County, Utah.
"13. On February 1, 2013, the second district court for
Morgan County, Utah, granted the OPC's motion for summary
judgment. Later, the court entered an order which included
findings of fact and conclusions of law. The court concluded
that the respondent violated Rule 1.15(a) (safekeeping
property), Rule 1.15(d) (safekeeping property), Rule 8.1(b)
(bar admission and disciplinary matters), and Rule 8.4(a)
"14. Thereafter, on June 5, 2013, the court held a
sanctions hearing. During the sanctions hearing, the
respondent stated, 'I have no prior record [of attorney
"15. In an order memorializing its findings and
conclusions, the court found that the respondent
misappropriated client funds. The court ordered the
respondent be disbarred from the practice of law in Utah.
"16. While the Utah disciplinary case was pending, on
July 22, 2014, the respondent relinquished his license to
practice law in California. In the voluntary resignation, the
respondent declared the following:
'1. I am not currently suspended from the practice of law
as a result of the imposition of discipline by the California
Supreme Court, nor subject to (a) a period of disciplinary
probation; (b) conditions attached to a public or private
reproval; or (c) the terms of an agreement in lieu of
discipline with the Office of the Chief Trial Counsel;
'2. To my knowledge, I am not currently the
subject of any disciplinary complaint,
investigation or proceeding by any professional licensing
agency in California or another jurisdiction;
'3. I am not currently charged with the commission of any
felony or misdemeanor and have no knowledge that I am the
subject of a current criminal investigation or grand jury
proceeding for the alleged commission of a felony or
misdemeanor in any jurisdiction;
'4. I have not been convicted of any crime for which I
have failed to notify the State Bar pursuant to Business and
Professions Code section 6068(a)(5). (Emphasis added.)'
The California Supreme Court accepted the voluntary
resignation on October 21, 2014. It appears that the
respondent never informed the bar authorities of California
that, in fact, he was the subject of a disciplinary complaint
in Utah at the time he relinquished his license.
"17. The respondent appealed the second district
court's decision to the Utah Supreme Court. On July 21,
2015, the Utah Supreme Court entered its opinion, which
provided as follows:
'¶ 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 [J.B.]'s money from his client trust account for his
own purposes. Upon discovering the defalcation, [J.B.]
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
'¶ 2 Mr. Lundgren had been practicing law for twenty
years when [J.B.] hired him to pursue a workers'
compensation claim. In February 2009, [J.B.] settled her
claim for $24, 906. Per her instructions, Mr. Lundgren
retained $2, 500 of [J.B.]'s share of the settlement
proceeds in his client trust account in order to pay her
outstanding medical bills. However, in July of 2010,
[J.B.]'s doctor, Carl Mattson, informed her that her
medical bills remained outstanding. [J.B.] called Mr.
Lundgren numerous times and left several messages, but Mr.
Lundgren failed to respond.
'¶ 3 Ultimately, in December of 2010, [J.B.] 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 [J.B.]'s case
file. As a result of Mr. Lundgren's failure to respond
and failure to use the settlement funds as directed, [J.B.]
filed a complaint with the Utah State Bar. On August 12,
2011, the OPC sent Mr. Lundgren notice of [J.B.]'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
'¶ 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 [J.B.]'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. 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
[J.B.]'s complaint, but prior to the hearing before the
screening panel, Mr. Lundgren set up monthly payments of $300
to Dr. Mattson to pay [J.B.]'s medical expenses-
ostensibly because he did not have enough money to pay
[J.B.]'s medical bill in full. Mr. Lundgren ultimately
accounted for [J.B.]'s full settlement monies by paying
Dr. Mattson's bill and reimbursing the rest of the money
'¶ 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
'¶ 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. See SUP. 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
'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). 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
"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). 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. 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; see also In re Discipline of Corey,
2012 UT 21, ¶ 23 n. 13, 274 P.3d 972.
'I. DISBARMENT WAS THE APPROPRIATE SANCTION FOR MR.
'¶ 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. See
SUP. 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