In Re Chavez
{1} This matter came before the Court upon the recommendations of the disciplinary board in two separate proceedings conducted pursuant to the Rules Governing Discipline, Rules 17-101 through 17-316 NMRA 2000. Following a full evidentiary hearing held in disciplinary cause numbered 01-99-366, Santiago R. Chavez (respondent) was found to have committed multiple violations of the Rules of Professional Conduct, Rules 16-101 through 16-805 NMRA 2000, while indefinitely suspended from the practice of law. We adopt the recommendations of the disciplinary board in disciplinary cause numbered 01-99-366 and order that Santiago R. Chavez be disbarred.
{2} In the second proceeding, respondent entered into a conditional agreement not to contest and consent to discipline in disciplinary cause numbered 11-99-381. Under that agreement, respondent declared his intention not to contest allegations that he committed further violations of the Rules of Professional Conduct before and during his period of suspension. We also adopt the disciplinary board’s recommendations in disciplinary cause numbered 11-99-381 and approve the conditional agreement not to contest and consent to discipline. We impose additional discipline pursuant to that agreement, including an award of discovery sanctions and restrictions on respondent’s employment as a law clerk, a paralegal, or in any other position of a quasi-legal nature.
I.
{3} Respondent was indefinitely suspended from the practice of law by this Court on October 2, 1996. See In re Chavez,
A.
{4} After respondent’s license was suspended in October 1996, his sister moved to Taos at respondent’s request to work with respondent at the Chavez Law Firm. Respondent’s sister, who was a licensed New Mexico attorney at that time, was to serve as the sole attorney for the firm and respondent was to serve as her legal assistant. This relationship proved unworkable. Respondent’s sister subsequently left the firm and was granted inactive status on March 3, 1997.
{5} When respondent’s sister joined the Chavez Law Firm, the firm was representing two individuals who were buyers in a real estate transaction. To complete this transaction, the buyers each paid $18,000.00 to cover the purchase price of $36,000.00; these payments were deposited in the Chavez Law Firm’s trust account in December 1996 and January 1997. The Chavez Law Firm was to hold these funds and deliver them to the sellers’ attorney in exchange for the deed to the property. Respondent delivered a cashier’s check for $18,000.00 to the sellers’ attorney on or about March 13,1997.
{6} The remaining $18,000.00 of the purchase price was not delivered in a timely manner. By letter dated April 15, 1997, respondent was informed that the sellers had authorized their attorney to terminate the agreement to sell their interest in the property if the remaining $18,000.00 owed by the buyers was not received by April 25, 1997. The sellers’ attorney subsequently referred the matter to the disciplinary board on June 3, 1997. Respondent failed to deliver the remaining $18,000.00 needed to complete the transfer until July 3,1997.
{7} The delay in delivering the remaining monies needed to complete the real estate transaction was due to the fact that the firm’s trust account contained insufficient funds, in part, because respondent had misappropriated a substantial portion of the monies by transferring those monies to the firm’s operating account and using them to pay the firm’s expenses. On January 3, 1997, respondent signed his sister’s name to a $1,000.00 check drawn on the firm’s trust account. After respondent’s sister discovered this check, she ratified his act of signing her name on it, and steps were taken to add respondent’s name as an authorized signatory to the trust account. Although these steps were never completed, respondent signed his own name on checks drawn on the firm’s trust account on at least seven occasions in February 1997. These additional checks totaled at least $8,250.00.
{8} On December 9,1997, the chief disciplinary counsel filed a complaint against respondent regarding the aforementioned real estate transaction. Respondent failed to respond to disciplinary counsel’s repeated inquiries regarding the complaint until after he was personally served with the specification of charges on January 29, 1999. In his response, respondent claimed that one of the buyers assented to the use of his funds by the firm during this period. At the hearing on these charges, however, both the buyer and respondent testified that the buyer had not assented to such use of the funds.
B.
{9} On November 12, 1998, Gail Vemon-Kowalski filed a complaint with the disciplinary board alleging that respondent failed to account for two cheeks totaling $2,602.20 that she had provided to him in order to complete a quiet title action on her behalf. She had retained respondent to represent her in December 1994, which was prior to his suspension from the practice of law. The client paid him $1,500.00 in December 1994, and $1,102.20 in August 1995. In a letter enclosing the August 1995 check for $1,102.20, the client requested a “break down” of the monies she previously had sent to him. After not having spoken to respondent for some time, the client wrote to him again on July 2, 1998, complaining that he had not informed her of his suspension from the practice of law and also requesting an accounting of monies expended, a status report, and copies of any work that respondent had done on the ease.
{10} Respondent also failed to reply to disciplinary counsel’s numerous inquiries regarding the client’s complaint until after he was personally served with the specification of charges arising from the complaint on December 6,1999. During a prehearing conference before the chairperson of the hearing committee, respondent agreed and was ordered to make his files and trust account records regarding this matter available to disciplinary counsel at 10:00 a.m. on February 15, 2000. When disciplinary counsel arrived to review the trust account records at the appointed time, respondent was unable to produce them and again failed to produce the required trust account records the next day despite having been ordered to do so by the hearing committee. Respondent subsequently faxed a letter to disciplinary counsel explaining, for the first time, that he could not produce these trust account records because they do not exist.
C.
{11} On July 16, 1999, Eutimio Rivera filed a complaint with the disciplinary board alleging that he and his son had paid respondent a total of $5,000.00 in January and February 1999 to defend them in a quiet title suit. One of the checks was made payable to respondent’s spouse at respondent’s request. The client alleged that respondent failed to advise him of respondent’s suspension and that he understood respondent was an attorney. When respondent failed to file an answer on behalf of the client and his son, they retained a licensed attorney in Albuquerque, who sent a letter to respondent on May 6, 1999, requesting a refund of the fees paid by the ehent and his son. In a letter to the client’s new attorney dated May 24,1999, and on two or three other occasions, respondent stated that he would refund the monies he received from the client and his son. Nevertheless, respondent failed to refund these monies.
{12} Respondent also failed to respond to disciplinary counsel’s repeated inquiries regarding this complaint until after he was served with the specification of charges on December 6, 1999. In his response, respondent attached unsigned drafts of pleadings that he allegedly had prepared, however, respondent failed to produce any additional files or documents regarding the matter in response to disciplinary counsel’s discovery requests.
D.
{13} On September 20, 1999, Larry Barela filed a complaint with the disciplinary board alleging that he had paid respondent $2,500.00 to represent him in a quiet title suit on January 12, 1999. The client’s check for $2,500.00 was negotiated by respondent on January 25, 1999, and paid to respondent’s spouse. The client alleged that respondent initially told him the quiet title suit would take approximately six months to complete. When contacted again by the client in May 1999, respondent stated that he would need more time to complete the matter. The client alleged that respondent never told him that respondent was suspended from the practice of law until he telephoned respondent a third time in July 1999 to obtain an update on his case. At that time, when respondent told the client that his license had not been reinstated, the client requested a refund of his monies, but respondent failed to provide any refund. The client subsequently filed suit in the Magistrate Court of Taos County to recover these monies.
{14} As with the other complaints that are the subject of these disciplinary proceedings, respondent failed to respond to disciplinary counsel’s numerous inquiries regarding this complaint until after he was served with the specification of charges on December 6, 1999. In his response, respondent provided copies of unsigned drafts of pleadings that he allegedly had prepared on behalf of his client.
II.
{15} In disciplinary cause numbered 01-99-366, we agree with the disciplinary board’s conclusion that respondent committed several serious violations of the Rules of Professional Conduct arising from his employment with the Chavez Law Firm. We
A.
{16} The Rules of Professional Conduct and the Rules Governing Discipline still apply to respondent notwithstanding his contention that he was acting as a legal assistant for his sister or was only performing ministerial tasks necessary to close his practice at the time the misconduct occurred. “Attorneys, even though suspended, are still subject to the jurisdiction of this Court and are required to follow our rules in closing their practices.” In re Herkenhoff,
{17} Respondent did not heed this direction. He violated Rule 16-115(A) by failing to maintain client funds in the Chavez Law Firm’s trust account and by allowing that trust account to fall into a negative balance. He violated Rule 16-115(B) by failing to promptly deliver the funds with which he was entrusted to the parties entitled to receive those funds. His participation in the improper withdrawals from the Chavez Law Firm’s trust account also violated Rules 16-102(D) and 16-804(C) because such participation amounted to conduct that was dishonest, fraudulent, deceitful, and a misrepresentation. His failure to respond to the chief disciplinary counsel’s complaints violated Rules 16-801(B) and 16-803(D), which require all lawyers in this state to respond to lawful demands for information from disciplinary authorities and to give full cooperation and assistance to such authorities in discharging their functions and duties with respect to discipline and disciplinary procedures. Finally, respondent’s trust account violations and his failure to respond to disciplinary counsel’s inquiries violated Rules 16-804(D) and (H) because such conduct is prejudicial to the administration of justice and adversely reflects on his fitness to practice law.
{18} Under the circumstances presented here, respondent was a knowing participant in the willful misappropriation of funds from the Chavez Law Firm’s trust account. Neither respondent’s expectation that he would be able to replenish the trust account with a settlement from another case, nor the fact that the funds eventually were replenished and delivered to their rightful owner several months later, are sufficient to change this conclusion. See In re Rohr,
{19} This Court consistently has held that “[m]isappropriation of client funds is a most egregious breach of an attorney’s fiduciary duties and generally results in disbarment.” In re Darnell,
{20} Respondent’s prior disciplinary record, which involves offenses of the same nature, also is an aggravating circumstance warranting an increase in the degree of discipline to be imposed in this ease. See In re Houston,
{21} A more severe sanction is necessary to protect the public when a lesser sanction has proven insufficient to stop a suspended lawyer from repeating the same type of misconduct with another client and to vindicate the Court’s authority when a lawyer has disregarded the directions issued by the Court in a prior order imposing a term of suspension. See Herkenhoff I,
B.
{22} In and of itself, respondent’s misconduct while employed with the Chavez Law Firm warrants his disbarment. Our duty to protect the public, the legal profession, and the administration of justice, however, does not end with respondent’s disbarment. Accordingly, we must address the other charges that were pending against respondent in disciplinary cause numbered 11-99-381 at the time he was disbarred by this Court in disciplinary cause numbered 01-99-366.
{23} Based on the uncontested allegations in cause numbered 11-99-381, we conclude that respondent violated Rule 16-103 by failing to act with reasonable diligence and promptness in representing the aforementioned clients. He violated Rule 16-104 by failing to keep his clients reasonably informed about the status of a matter, fading to explain the matter to the extent reasonably necessary to permit each client to make an informed decision regarding the representation, and failing to promptly comply with reasonable requests for information. He violated Rule 16-105 by collecting fees that were unreasonable. He violated Rule 16-107(B) by representing clients when that representation was materially limited by his own interests. He violated Rule 16-115 by failing to hold his clients’ funds separate from his own funds in a trust account, failing to promptly deliver to each client any funds that client is entitled to receive, failing to keep complete records of trust account funds and client property in the manner required by Rule 17-204, and failing to promptly render a full accounting regarding such property. His failure to respond to disciplinary counsel’s numerous inquiries regarding each complaint violated Rules 16-801(B) and 16-803(D), and amounted to conduct that was prejudicial to the administration of justice in violation of Rule 16-804(D). In addition, the aforementioned misconduct violates Rule 16-804(H) by adversely reflecting on respondent’s fitness to practice law.
{24} With regard to his conduct in the Barela and Rivera matters, respondent also violated Rule 16-505(A) by practicing law in New Mexico where doing so violates the regulation of suspended lawyers under Rule 17-212(C). Rule 17-212(C) specifically prohibits a disbarred or suspended lawyer from accepting any new retainer or engaging as an attorney for another in any new case or legal matter of any nature, and we have stated unequivocally that “[a]n attorney who has been suspended or disbarred may not continue
{25} Respondent cannot escape the conclusion that he was engaging in the unauthorized practice of law simply by claiming that he was a legal assistant acting as an intermediary for another lawyer, that he did not sign the pleadings he drafted for his clients, or that he had not entered an appearance in any court. “Only two types of legal representation are recognized — litigants appearing pro se or those appearing through licensed counsel of record.” Schmidt II,
{26} Moreover, this Court has declined to adopt a definition of the practice of law that is limited to signing pleadings or appearing in court on another’s behalf. Instead, we have determined what constitutes the practice of law in each case by conducting a fact-specific inquiry that takes several different indicators into consideration. See State ex rel. Norvell v. Credit Bureau of Albuquerque, Inc.,
{27} An unlicensed person may not use a licensed attorney simply as a facade to cover up the fact that he or she is engaging in the unauthorized practice of law. See Attorney Grievance Comm’n v. James,
{28} “Where the individual charged with unauthorized practice [of law] has had legal training, his activities are subject to even closer scrutiny.” In re Discipline of Jorissen,
{29} It is a violation of Rules 16-102(D) and 16-804(0 for a suspended attorney to undertake legal representation by intentionally misleading others to believe that he or she still is licensed to practice law. Cf. In re Conduct of Devers,
{30} Engaging in the unauthorized practice of law while suspended from the practice of law provides an independent justification for disbarring respondent. Under Section 8.1 of the ABA Standards, “[disbarment is generally appropriate when a lawyer ... intentionally or knowingly violates the terms of a prior disciplinary order and such violation causes injury or potential injury to a client, the public, the legal system, or the profession.” Standards for Imposing Lawyer Sanctions § 8.1 at 47 (1992). The commentary to this standard states that “[t]he most common case is one where a lawyer has been suspended but, nevertheless, practices law. The courts are generally in agreement in imposing disbarment in such cases.” Id.; accord James,
{31} Respondent’s continued misconduct during the period of his suspension also warrants restrictions on his future employment as a law clerk, a paralegal, or in any other
C.
{32} In disciplinary cause numbered 11-99-381, the hearing committee awarded discovery sanctions against respondent after finding that he repeatedly failed to produce documents at the times ordered by the committee. These sanctions included: (1) permitting petitioner to amend the specification of charges by adding an allegation that respondent violated the record keeping requirements of Rule 16-115(A); (2) taking it as established that respondent did not maintain a trust account for the fee received from Ms. Vernon-Kowalski; (3) prohibiting respondent from introducing into evidence any documentary material that was not provided to petitioner as of the deadline imposed by the hearing committee; and (4) awarding as costs the reasonable value of the time that petitioner’s counsel spent waiting for respondent to arrive and produce the requested documents after the discovery deadline had expired. Following the submission of affidavits by disciplinary counsel, the hearing committee set the reasonable value of petitioner’s counsel’s time at $125.00 per hour (which was the hourly rate that respondent had charged his clients) for a total of $500.00.
{33} We affirm the hearing committee’s award of discovery sanctions in this disciplinary proceeding. Rule 1-037(B)(2) NMRA 2000 of the Rules of Civil Procedure provides for the imposition of discovery sanctions for failure to obey an order to provide or permit discovery. The sanctions imposed here are of the type contemplated by this rule.
{34} “A court order issued under Rule [1-0]37(A) is not a prerequisite to imposition of Rule [1-0]37(B) sanctions; any clearly articulated order requiring or permitting discovery can provide the basis of sanctions for noncompliance.” Marchman v. NCNB Texas Nat’l Bank,
{35} Rule 17-301(B) of the Rules Governing Discipline states that the Rules of Civil Procedure shall be used in formal disciplinary proceedings except where clearly inapplicable to disciplinary proceedings or inconsistent with or otherwise provided for by the Rules Governing Discipline. While the Rules of Professional Conduct already require lawyers to respond to disciplinary counsel’s requests for a response to a complaint and to provide additional information to disciplinary counsel if asked to do so, see Rules 16-80KB), 16-803(D); Schmidt I,
III.
{36} NOW, THEREFORE, IT IS ORDERED that Santiago R. Chavez is hereby DISBARRED from the practice of law pursuant to Rule 17-206(A)(1).
{37} IT IS FURTHER ORDERED that during disbarment respondent shall not (1) handle any client funds, including payment of unearned fees and (2) operate as an independent paralegal.
{38} IT IS FURTHER ORDERED that respondent may act only as a legal assistant under direct supervision of an attorney who is unrelated to respondent and who is approved by the office of disciplinary counsel.
{39} IT IS FURTHER ORDERED that should respondent be reinstated to the practice of law, he shall be placed on probation for no less than one year during which time all trust account activities undertaken by respondent shall be supervised on a monthly basis by an attorney who is unrelated to respondent or by a CPA who is unrelated to respondent, either of whom shall be approved by the office of disciplinary counsel.
{40} IT IS FURTHER ORDERED that respondent shall pay the normal hourly rate charged by the supervising attorney or CPA.
{41} IT IS FURTHER ORDERED that Respondent shall satisfy all of the conditions ordered by this Court on October 2, 1996, and all conditions specified herein, prior to any application for reinstatement.
{42} IT IS FURTHER ORDERED that the following additional discipline shall be imposed:
(1) Respondent shall remain subject to all provisions in this Court’s order dated February 23, 2000;
(2) Respondent shall remain subject to all provisions of this Court’s opinion dated November 20,1996;
(3) Respondent shall make restitution to the following persons in the following amounts on or before June 1, 2000, with interest to accrue at the rate of fifteen percent (15%) per annum on any unpaid balance after that date, and such restitution shall be reduced to transcripts of judgment:
(a) Larry Barela $2,500.00
(b) Eutimio Rivera $3,500.00
(c) Jose Rivera $1,500.00
(d) Gail B. Vemon-Kowalski $2,602.20
(4) Respondent shall return any files and any documents in his possession regarding Larry Barela, Eutimio Rivera, Jose Rivera, and Gail B. Vernon-Kowalski (including abstracts of title and surveys) to each of these former clients on or before June 1, 2000.
(5) Respondent shall pay the costs of all disciplinary proceedings in the amount of $21,007.73, plus costs awarded as discovery sanctions in the amount of $500.00, on or before March 1, 2001, with interest to accrue at the rate of fifteen percent (15%) per annum on any unpaid balance after that date, and such costs shall be reduced to a transcript of judgment.
(6) In addition to the provisions of this Court’s order dated February 23, 2000, respondent’s employment of a legal or quasi-legal nature shall be subject to the following conditions:
(a) Respondent shall advise disciplinary counsel within ten (10) days of any employment (or change of employment) in any capacity with a person or firm that provides legal services;
(c) In order to be considered for approval as a supervising attorney, the proposed supervising attorney must file a written report with disciplinary counsel agreeing to provide supervision and outlining the type of work being performed by respondent as well as the supervising mechanism utilized by the supervising attorney to supervise the actions of respondent;
(d) Under no circumstances shall respondent solicit, initiate, or accept the representation of a client on his own behalf or on behalf of another. If respondent receives any inquiries which might reasonably be interpreted as a request for legal representation, respondent shall inform the person making the inquiry that respondent is not licensed to practice law and can be of no assistance to them in obtaining legal representation;
(e) Respondent shall have no contact with his supervising attorney’s clients or any clients of the supervising attorney’s firm except when his supervising attorney is present or otherwise in a position to directly supervise respondent’s communications with the client;
(f) In any communication with a client that occurs outside the presence of the supervising attorney, respondent shall provide the following notice: “Please be advised that I, Santiago ‘Jaime’ R. Chavez, am not licensed to practice law and cannot provide you with any legal advice or accept any fees from you. Should you have any unanswered questions or concerns about my communications with you, please contact my supervising attorney, [supervisor’s name], at [supervisor’s telephone number]”;
(g) Respondent’s work area must be physically located within the same office or premises as the supervising attorney;
(h) During the course of his employment, respondent shall be prohibited from attending any court or administrative proceedings unless his supervising attorney is present, makes an appearance, and notifies or has notified the court or tribunal of respondent’s status as a non-lawyer;
(i) Respondent shall be prohibited from having any access whatsoever to client funds; and
(j) Respondent shall bear the entire responsibility of ensuring that his supervising attorney reports to disciplinary counsel and confirms the parameters of respondent’s employment to disciplinary counsel on at least a quarterly basis.
(7) Should respondent be permitted to apply for reinstatement to the practice of law, he must demonstrate to the satisfaction of the hearing committee that all of the conditions specified herein have been satisfied before his application for reinstatement can be granted; and
(8) Should any of the terms and conditions be violated by respondent, disciplinary counsel shall bring such violation to the attention of this Court pursuant to Rule 17-206(G) and, should respondent be found in contempt, this Court may impose additional sanctions including fines, further restrictions on his law-related employment, and further restrictions on any application for reinstatement.
{43} IT IS FURTHER ORDERED that respondent is hereby sanctioned in the amount of $500.00 in costs for the time disciplinary counsel had to wait past the appointed time at which respondent was to have the documents ready for review (two hours for two attorneys at $125.00 per hour).
{44} IT IS SO ORDERED.