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In re Disciplinary Matter Involving Albertsen

Supreme Court of Alaska

May 11, 2018

In the Disciplinary Matter Involving KENNETH D. ALBERTSEN, Attorney.

          ABA File Nos. 2016D096/2016D101

          Louise Driscoll Alaska Bar Association

          John Murtagh Counsel for Respondent Attorney

          ALASKA BAR ASSOCIATION Louise R. Driscoll Assistant Bar Counsel

          Kenneth D. Albertsen Respondent

          John M. Murtagh Attorney for Respondent

          Kenneth D. Albertsen Respondent

          Before: Stowers, Chief Justice, Winfree, Maassen, Bolger, and Carney, Justices.

          ORDER

         Bar Counsel for the Alaska Bar Association and attorney Kenneth D. Albertsen entered into a stipulation for discipline by consent that would result in Albertsen's two-year-and-one-day suspension from the practice of law in Alaska. The Bar Association's Disciplinary Board approved the stipulation and now recommends that we do so, as well, and so suspend Albertsen. The facts of Albertsen's misconduct are set forth in the stipulation, attached as an appendix.[1] We take these facts as true, [2] and we apply our independent judgment to the sanction's appropriateness.[3]

         Based on the uncontested facts we agree with the legal analysis - set out in the stipulation - that a two-year-and-one-day suspension is an appropriate sanction for Albertsen's misconduct. Accordingly:

         Kenneth D. Albertsen is suspended from the practice of law in Alaska for a period of two years and one day, effective 30 days from the date of this order. Within 60 days of this order Albertsen must pay $1, 000 to the Alaska Bar Association for disciplinary expenses incurred in this matter. Reinstatement proceedings would be governed by Alaska Bar Rule 29(c). As a condition of any future reinstatement, Albertsen must: (1) provide a psychological evaluation addressing his ability to practice law; (2) certify that he has completed continuing legal education as specified in the stipulation; and (3) prepare a detailed plan, acceptable to Bar Counsel, for financial management, including an independent monitor, to be followed for two years after reinstatement as outlined in the stipulation.

         Entered by direction of the court.

         STIPULATION FOR DISCIPLINE BY CONSENT PURSUANT TO ALASKA BAR RULE 22(H)

         Pursuant to Alaska Bar Rule 22(h), Kenneth D. Albertsen, Respondent, and Louise R. Driscoll, Assistant Bar Counsel, stipulate as follows:

         JURISDICTION AND VENUE

         1. Albertsen is an attorney at law admitted to practice by the Supreme Court of Alaska, and a member of the Alaska Bar Association.

         2. Albertsen is subject to the Alaska Rules of Professional Conduct (ARPC) and to Part II, Rules of Disciplinary Enforcement, Alaska Bar Rules, giving the Alaska Supreme Court and the Disciplinary Board of the Bar jurisdiction to resolve this matter.

         BACKGROUND FACTS

         3. This stipulation addresses professional misconduct involving mishandling of client monies and neglect during Albertsen's representation of clients. The Bar investigated misconduct allegations in two grievances and conducted an audit of Albertsen's law office accounts during Bar disciplinary proceedings.

         S.A. v. Albertsen ABA File No. 2016D096

         4. On May 13, 2008, client S.A. hired Albertsen to foreclose on her late father's Alaska properties, including a house and a lodge in rural Alaska that her father had originally owned.

         5. S.A. was living in Texas when she asked Albertsen to start the foreclosure proceedings. Albertsen did not tell her the total fee to be charged, but he told her to forward a $2, 000 retainer upon hire. The parties never entered a written fee agreement, but Albertsen periodically sent billing statements. Albertsen and S.A. communicated by email and telephone.

         6. Although a non-judicial foreclosure had been noticed, the foreclosure sale was continued to allow the parties to negotiate. As a result of the negotiations, approximately $2, 900 was recovered from the adverse parties to the non-judicial foreclosure action.

         7. Between January 2009 and June 2009, it became clearer to Albertsen, a knowledgeable real estate law practitioner, that a judicial foreclosure action would be required due to the resistance of the adverse parties, as well as an allegation of environmental contamination. Albertsen advised S.A. to proceed with a judicial foreclosure so that she would not wind up back in title to the properties. He also recommended ending the non-judicial foreclosure.

         8. Albertsen converted the matter from a non-judicial foreclosure action to a judicial foreclosure action. He did not advise S.A. of additional fees and costs she might incur and they did not enter a written fee agreement. Albertsen continued to send invoices regarding "non-judicial foreclosure."

         9. Albertsen obtained a settlement of the judicial foreclosure action in 2011. The settlement resulted in a confession of judgment without action of $130, 000, plus pre-judgment interest at the rate of 8% and post-judgment interest accruing after entry of judgment. Judgment was entered on August 26, 2011, and reflected pre-judgment interest of $11, 682, for a total judgment recovered of $141, 682.15. S.A. participated by telephone in the settlement conference and authorized the settlement.

         10. Following the recovery of the judgment, Albertsen conducted a judgment debtor exam. He notified S.A. by email of the exam on July 2, 2012. S.A. called and left numerous messages for Albertsen following the exam, but he did not respond.

         11. Albertsen sent two additional invoices following the filing of the judicial foreclosure complaint, one dated March 10, 2010, and one dated July 3, 2012. After the July 3, 2012 invoice, Albertsen did not communicate with S.A.

         12. S.A. attempted to communicate with Albertsen over a period of months as reflected by her email:

An email from S.A. to Albertsen dated August 17, 2013, requesting information on the case;
An email from S.A. to Albertsen dated November 5, 2013, requesting information with no response;
An email from S.A. to Albertsen dated December 18, 2013, requesting Albertsen to inform her about what was happening, with no response;
An email from S.A. to Albertsen's office dated February 24, 2014, requesting somebody to call and let her know what was happening, with no response;
An email from S.A. to Albertsen dated June 9, 2014, requesting that Albertsen call, with no response;
An email from S.A. to Albertsen dated August 4, 2014, requesting that Albertsen please call her, with no response;
An email from S.A. to Albertsen dated December 1, 2014, requesting an update on litigation and judgment execution, and noting that she had not received any money, with no response;
An email from S.A. to an Anchorage attorney dated August 8, 2014, stating that S.A. had called Albertsen to fire him and request all files be turned over to new counsel which did not happen;
An email from S.A. to Albertsen dated March 9, 2015, requesting information on foreclosure regarding the home, a separate foreclosure action. Albertsen responded to this email on March 17, 2015, stating that he would proceed;
An email from S.A. to Albertsen dated July 20, 2015, requesting an update on foreclosure on the home, to which there was no response;
An email from S.A. to Albertsen dated November 10, 2015, stating that she was firing him as of December 1, 2015, and requesting the files;
An email from Albertsen to S.A. dated December 3, 2015, informing her that he was in trial preparation, but he expected to get the files to new counsel by the following Monday.

         13. Albertsen did not deliver the file and other property to S .A. or the proposed substitute counsel. After Albertsen ignored several telephone calls from the proposed substitute counsel between November 2015 and December 2015, substitute counsel declined the representation.

         14. S.A. contacted another attorney for help. On February 3, 2016, that attorney wrote Albertsen that S.A. wanted him to resolve outstanding real estate matters in Alaska so that she could close an estate in Texas. Her Texas lawyers continued to bill her on estate matters as long as the property matters in Alaska remained open.

         15. In conducting a review, S.A.'s new attorney discovered that garnishment proceedings had happened and that the court made its first wage garnishment disbursement on November 17, 2014. The court continued making wage and Permanent Fund Dividend disbursements through 2014, 2015, and 2016 on a regular schedule.

         16. S.A.'s attorney wrote Albertsen that CourtView showed that Albertsen had received $25, 349.18 from garnishment of bi-monthly paychecks, but S.A. had not received any proceeds from the garnishment.

         17. On March 8, 2016, Albertsen forwarded S.A. a check in the amount of $20, 000, along with a note stating he would complete his review of the file and determine the balance when the file was turned over to her new attorney. The court continued to make wage garnishment disbursements to Albertsen.

         18. Albertsen did not provide an accounting or a final balance to S.A., but he sent file materials to her new counsel.

         19. On June 27, 2016, the Bar received an Attorney Grievance Form filed by S.A. against Albertsen.

         20. Bar Counsel forwarded the grievance to Albertsen on June 30, 2016, asking for a voluntary response. Albertsen called the Bar's office to request extensions of time to provide a response on three occasions. He did not file a voluntary response.

         21. On August 31, 2016, Bar Counsel opened the grievance for a formal investigation. Albertsen did not provide a mandatory response as required under Alaska Bar Rule 22.

         22. On October 7, 2016, Bar Counsel notified Albertsen in writing that the allegations in the matter were deemed admitted.

         23. On October 17, 2016, S.A. filed a petition for fee arbitration against Albertsen, alleging she was overcharged the entire amount of $13, 325.68 that she had paid Albertsen. She alleged that Albertsen neglected her legal matters for several years, withheld funds received into his trust account on her behalf for years, and continued to withhold funds. Albertsen did not answer the petition.

         24. On or about January 24, 2017, Albertsen sent S.A.'s attorney a check in the amount of $19, 483.31 in trust for S.A.

         25. A disciplinary panel hearing was held on February 27, 2017. Both ...


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