This opinion is subject to revision before

publication in the Pacific Reporter

2015 UT 58

IN THE

SUPREME COURT OF THE STATE OF UTAH

In the Matter of the Discipline of ALVIN R. LUNDGREN

________________________________________________

UTAH STATE BAR,

Appellee,

v.

ALVIN R. LUNDGREN,

Appellant.

No. 20130739

Filed July 21, 2015

Second District, Morgan Dep’t

The Honorable Noel S. Hyde

No. 120500019

Attorneys:

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). 
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Opinion of the Court

2

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 
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Opinion of the Court

3

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 

 

1 While Mr. Lundgren admits to the additional defalcations, he 

alleges that he lost the hard copy of his accounting records in a 

flood and the electronic copy due to a computer crash and,

therefore, cannot fully account for his financial activity during the 

period in question.

2 At oral argument in this matter, the OPC withdrew its claim

under rule 8.1(b). Accordingly, we dismiss that charge of 

misconduct. 
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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 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. 

 

3 Mr. Lundgren did challenge the propriety of the district 

court’s grant of summary judgment on the rule 8.1(b) allegation. 

Because the OPC withdrew that charge at oral argument, we do

not address it.
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Opinion of the Court

5

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. 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 

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 deathsentence,” 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 
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6

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, 704 A.2d 1, 4 (N.J. 1997); “the gravest form of 

professional misconduct,” Att’y Grievance Comm’n v. Pattison, 441 

A.2d 328, 333 (Md. 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 profession, an 

attorney who is guilty of it should be disbarred. The only 

exception to this rule occurs if an attorney can show “truly 

compelling mitigating circumstances.” In re Discipline of Ince, 957 

P.2d 1233, 1237 (Utah 1998); Babilis, 951 P.2d at 217. We have 

never explicitly defined the phrase “truly compelling mitigating 

circumstances,” but we have said that the “mitigating factors 

must be significant,” Ince, 957 P.2d at 1237–38, and should be

construed “relatively narrowly.” Grimes, 2012 UT 87, ¶ 40; see also 

Corey, 2012 UT 21, ¶ 37 n.17. Again, the standard for sanctioning 

such behavior is purposely strict in order to serve the public and 

the profession by maintaining the trust that is so critical to the 

attorney-client relationship.

A. The “Truly Compelling Mitigating Circumstances” 

Standard Is Not “Illusory”

¶ 13 The modern standard for attorney sanctions in cases of 

intentional misappropriation was first set out by this court in

Babilis, where we adopted the rule that “intentional 

misappropriation of client funds will result in disbarment unless 

the lawyer can demonstrate truly compelling mitigating 

circumstances.” 951 P.2d at 217 (internal quotation marks 

omitted). Mr. Lundgren argues that the truly compelling 

mitigating circumstances standard is “illusory” and that we 

should depart from it in favor of a “balancing” or rehabilitative 

approach. However, his briefing on this point is unpersuasive and 

largely inadequate. See UTAH R. APP. P. 24(a)(9) (“The argument 
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Opinion of the Court

7

shall contain the contentions and reasons of the appellant with 

respect to the issues presented . . . .”); State v. Thomas, 961 P.2d 

299, 305 (Utah 1998) (“[R]ule 24(a)(9) requires not just bald 

citation to authority but development of that authority and 

reasoned analysis based on that authority.”); see also Water & 

Energy Sys. Tech., Inc. v. Keil, 2002 UT 32, ¶ 21, 48 P.3d 888 (“[T]his 

court will not become simply a depository in which the appealing 

party may dump the burden of argument and research.” (internal 

quotation marks omitted)). He fails to provide a reasoned 

argument for the reversal of our existing standard. We therefore 

decline to abrogate it. 

¶ 14 Mr. Lundgren’s argument begins with a list of various 

“background illustrative cases”—cases that are summarized 

without further exegesis. He asserts that the district court below 

was “unable” to find truly compelling mitigating circumstances 

“because there is no precedent in recent Utah Supreme Court case 

history.” But in fact there have been a number of cases applying 

the “truly compelling mitigating circumstances” standard in 

recent years, though it is true that no attorney has yet met that 

standard. See, e.g., In re Discipline of Ennenga, 2001 UT 111, 37 P.3d 

1150; Corey, 2012 UT 21. Mr. Lundgren’s primary argument 

appears to be, in essence, because no attorney who has 

misappropriated client funds since 1997 has been able to escape 

the presumptive sanction of disbarment by showing truly 

compelling mitigation, “there may be a problem with” the 

standard. We disagree. 

¶ 15 The fact that no attorney in Utah to date has been able to 

show that he acted under truly compelling mitigating 

circumstances when he misappropriated client funds does not 

indicate that there is a problem with the standard, nor does it 

render the standard “illusory,” “vague,” or unenforceable. Nor do 

we agree with Mr. Lundgren that the standard is “worthless and 

of no material benefit.” To the contrary, we find our strict 

standard for imposing sanctions in cases of intentional 

misappropriation to be extremely explicit, worthy, and highly 

beneficial to the legal profession and the public.
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¶ 16 In arguing that our standard is “illusory,” Mr. Lundgren 

grasps at a variety of sources, none of which are on point.4

Mr. Lundgren asserts that our standard sets the bar for showing 

mitigation “so impossibly high” that no attorney will ever meet it. 

We disagree, but in any event we need not address the question of 

a hypothetical case of truly compelling mitigation because 

Mr. Lundgren has not shown that he acted under mitigating 

circumstances. We agree with the OPC that the truly compelling 

mitigation standard “is a high burden for attorneys to meet. That 

does not mean it is an illusion.” 

¶ 17 Mr. Lundgren asserts that this case presents us with “an 

opportunity” to “abandon” the truly compelling mitigation 

standard “and return to a more rational” test. We decline this 

opportunity because we find the test perfectly rational. As we 

explained when we adopted the standard,

[t]he honesty and loyalty that all lawyers owe their 

clients are irrevocably shattered by an intentional 

act of misappropriation, and the corrosive effect of 

such acts tends to undermine the foundations of the 

profession and the public confidence that is 

essential to the functioning of our legal system. 

Lawyers should be on notice that an intentional act 

of misappropriation of a client’s funds is an act that 

merits disbarment.

Babilis, 951 P.2d at 217. We uphold that standard today and 

reiterate that an attorney who intentionally misappropriates client 

 

4 These include: a death penalty case dealing with the standard 

for attorney performance in the context of a claim of ineffective 

assistance of counsel, Menzies v. Galetka, 2006 UT 81, 150 P.3d 480; 

a case dealing with illusory promises made by a prosecutor 

pursuing a plea deal; a case in contract law standing for the 

proposition that illusory promises will defeat an enforceable 

contract; and finally, a statutory interpretation case in which we 

stated that we reject interpretations that render statutory rights 

“‘meaningless or illusory,’” see Thomas v. Color Country Mgmt., 

2004 UT 12, ¶ 46, 84 P.3d 1201. 
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funds will be disbarred unless he or she can show truly 

compelling mitigating circumstances.

B. Mr. Lundgren Failed to Present Any Truly 

Compelling Mitigating Circumstances

¶ 18 Mr. Lundgren testified under oath that he 

misappropriated unearned money from his client trust account for 

his business and personal use. On appeal, Mr. Lundgren appears 

to argue that he showed truly compelling mitigating 

circumstances in two ways: (1) his conduct was not as bad as 

other disbarred attorneys and (2) he “repaid all amounts.” We 

uphold the district court’s determination that Mr. Lundgren has 

failed to show truly compelling circumstances that would 

mitigate his misconduct.5

¶ 19 “[T]he standard for departing from the presumptive 

sanction of disbarment is a ‘truly compelling’ mitigating factor in 

the circumstances of [this] case, not the comparative seriousness 

of other cases.” Ennenga, 2001 UT 111, ¶ 16. Mr. Lundgren argues 

that because other attorneys have misappropriated more money 

than he did, he should not be disbarred. He contends the “relative 

severity” of his conduct was less than that of other attorneys who 

have been disbarred—because he took less money—and therefore 

he should receive a lesser punishment than disbarment. These 

arguments fail. Rule 14-605, which governs the imposition of 

sanctions, does not suggest that the amount of money 

misappropriated has any bearing on the seriousness of the 

misconduct. See SUP. CT. R. PROF’L PRAC. 14-605(a)(2)–(3) (calling 

for disbarment when a lawyer “engages in serious criminal 

conduct . . . which includes . . . misappropriation” or “engages in 

any other intentional misconduct involving . . . deceit”).

Moreover, we review each case of misconduct individually—the 

relative seriousness of other cases of attorney misconduct has no 

 

5 The district court considered the mitigating factors presented 

by Mr. Lundgren, including (1) “[a]bsence of a prior record of 

discipline,” (2) “[g]ood character and reputation,” and 

(3) “[r]emorse.” The court did not find that any of these were truly 

compelling. We agree.
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bearing on the proper resolution of this case. Ennenga, 2001 UT 

111, ¶ 16.

¶ 20 Mr. Lundgren points to Utah State Bar v. Jardine, a case in 

which the attorney, Mr. Jardine, charged unreasonable fees, 

deposited client retainers in his operating account before they 

were earned, and committed various other violations, but was 

only suspended. 2012 UT 67, ¶¶ 1, 83, 289 P.3d 516. Mr. Lundgren 

claims that his own misconduct “was far less severe.” We are not 

persuaded by this argument. Again, as we explained in Ennenga, 

we do not compare severity across cases. 2001 UT 111, ¶ 16. 

Mr. Lundgren cannot justify his unlawful and unethical conduct 

by noting that he could have done worse. 

¶ 21 Moreover, Jardine is distinguishable because 

Mr. Jardine’s misconduct, though unacceptable, did not rise to the 

level of knowing and intentional misappropriation of client funds. 

2012 UT 67, ¶¶ 10, 31–32. Mr. Jardine’s case involved mishandling 

client funds—not stealing them (a subtle nuance perhaps, but an 

important one). Id. ¶¶ 48–50. Mr. Jardine was charging his clients 

large “nonrefundable” retainers, which he would deposit directly 

into his operating account—and which he argued were earned 

upon receipt. Id. ¶ 48. In deeming this misconduct, we explained 

that although it is conceivable that an attorney—perhaps due to 

the benefit conferred by the person’s “towering reputation”—

might earn a client’s retainer fee the moment she receives it, 

Mr. Jardine did not. Id. ¶ 50. We thus concluded it was 

misconduct under rule 1.15(a) for Mr. Jardine to deposit client 

retainers directly into his operating account. Id. ¶ 53. 

Mr. Lundgren, unlike Mr. Jardine, knowingly took funds that 

were not only unearned, but would never be earned, and were in 

fact earmarked for another purpose, namely, to pay Ms. Best’s 

medical bills. 

¶ 22 It is true that Mr. Lundgren ultimately restored 

Ms. Best’s funds, but this factor is not mitigating where there is no 

evidence to show that remorse was his motivation for restoring 

the funds. Tellingly, Mr. Lundgren did not self-report his 

unethical conduct or restore the funds to Ms. Best until after she 

had lodged a complaint with the OPC. Thus, it seems likely that 

his restoration of the funds was merely an attempt to avoid 

punishment. Under rule 14-607(c)(1) of the Supreme Court Rules 
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of Professional Practice, “compelled restitution” cannot be 

considered a mitigating factor. 

¶ 23 And Mr. Lundgren misses the ethical point entirely 

when he attempts to minimize his misappropriation by asserting 

that it is “philosophically debatable if the client does not know of 

the removal of funds over which the client does not have control, 

whether there is actual injury.” It is not philosophically debatable 

whether stealing money is okay so long as the victim never finds 

out. And in any event, Ms. Best did find out and was certainly 

inconvenienced in a variety of ways. Not least of these is the fact 

that Mr. Lundgren did not pay her medical bills as he was 

instructed (he was instead forced to set up a payment plan with 

the doctor much later), and Ms. Best had to endure the 

disappointment and frustration of dealing with the doctor’s 

collection attempts. We are glad that Mr. Lundgren was 

ultimately able to pay Ms. Best back, but “he did not make 

repayment until he was forced to do so by threat of suit . . . and 

after [the client] had made an informal complaint.” Ennenga, 2001 

UT 111, ¶ 13. “The repaying of [Ms. Best’s] money, though the 

right thing to do, was not accomplished in a way that mitigates 

the misappropriation.” Id.

¶ 24 Because Mr. Lundgren has failed to show truly 

compelling mitigating circumstances, we need not discuss the 

aggravating factors in detail. Although we do note that 

Mr. Lundgren’s dishonesty, his pattern of misappropriation, his 

long experience in the practice of law, his inability to accept the 

consequences of his actions, and his attempts to justify his 

misconduct are all aggravating factors. In sum, disbarment is the 

appropriate sanction for Mr. Lundgren’s misconduct. 

CONCLUSION

¶ 25 Today we reaffirm that the sanction for intentional 

misappropriation of client funds is disbarment unless an attorney 

can show truly compelling mitigating circumstances. 

Mr. Lundgren intentionally misappropriated client funds and 

failed to show any truly compelling mitigation. We therefore 

affirm the district court’s order of disbarment.