In the Matter of Michele Estrada

• Decision Date: 28 September 2006
• Docket Number: No. 28,406.,28,406.
• Parties: In the Matter of Michele ESTRADA, Esq., An Attorney Licensed to Practice Before the Courts of the State of New Mexico.
• Court: New Mexico Supreme Court

143 P.3d 731

2006 NMSC 047

In the Matter of Michele ESTRADA, Esq.,

An Attorney Licensed to Practice Before the Courts of the State of New Mexico.

No. 28,406.

Supreme Court of New Mexico.

September 28, 2006.

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Joel L. Widman, Deputy Disciplinary Counsel, Albuquerque, NM, for Petitioner.

Douglas Foster, Esq., Albuquerque, NM, for Respondent.

OPINION

PER CURIAM.

{1} This disciplinary proceeding arises from a discovery dispute and the introduction of forged evidence. It offers us the opportunity to discuss professional and ethical issues that may occur when New Mexico attorneys must confer with out-of-state counsel for corporate clients involved in litigation in New Mexico. In such situations, attorneys licensed to practice in New Mexico have an independent duty to the New Mexico judiciary to obey New Mexico's ethical and discovery rules, regardless of the opinion of out-of-state counsel. We agree with the hearing committee that attorney Michele Estrada (Respondent) violated the Rules of Professional Conduct in this case, and because of the serious nature of the violations, we impose on Respondent one year's suspension from the practice of law. Because of mitigating circumstances, we defer that suspension on the condition that Respondent satisfactorily completes a one-year period of probation, during which time Respondent is ordered to be supervised for the probationary year by an attorney to be approved of by this Court. Respondent is responsible for the costs of these proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

{2} Formal disciplinary proceedings were initiated against Respondent based on her conduct during the defense of a personal injury action for damages, allegedly resulting from a pharmacist filling a child's prescription for Ritalin with methadone. The case resulted in a mistrial after it became apparent that a prescription introduced into evidence, to show that the pharmacy could account for all its dispensed methadone, was a forgery. The disciplinary charges alleged, among other things, that during the course of the litigation Respondent violated the rules of discovery and failed to verify the authenticity of the forged prescription before introducing it into evidence, thus violating the Rules of Professional Conduct.

{3} The chair of the Disciplinary Board appointed a hearing committee, pursuant to Rule 17-309(C) NMRA, to hold an evidentiary hearing and issue findings of fact, conclusions of law, and a recommendation for discipline. The hearing committee found that despite having prior knowledge that the records showed a discrepancy between the number of methadone tablets prescribed and those dispensed, Respondent denied a request for admission asking her client to admit that inventory records of methadone in the possession of the pharmacy indicated that on October 10, 2001, at least sixty methadone tablets were missing. The committee further found that Respondent failed to amend her response to the request after she received confirming evidence of her client's liability. The committee also found that Respondent failed to supplement answers to a request for production requesting copies of all the pharmacy's records of loss or theft required by the New Mexico Board of Pharmacy. Finally, the committee found that Respondent failed to verify the authenticity of the forged prescription that she offered into evidence.

{4} Based on these findings, the committee drew the following conclusions: Respondent failed to provide her client with competent representation, violating Rule 16-101 NMRA; Respondent misled the court, violating Rule 16-102(D) NMRA; Respondent failed to properly respond to discovery requests, violating Rule 16-304(A) NMRA and Rule 16-304(D); Respondent engaged in or assisted in a fraudulent course of conduct, which misled the court, which was dishonest and deceitful, and which was prejudicial to the administration of justice, violating Rule 16-804(C) NMRA and Rule 16-804(D); and had engaged in conduct that adversely reflected on her fitness to practice law, violating Rule 16-804(H). The hearing committee also found as mitigating factors that Respondent was a relatively inexperienced attorney in her firm, Respondent was consistently and forcefully instructed by out-of-state counsel that allegedly missing prescriptions would be found, and that Respondent relied to a significant extent on information provided by the pharmacist—who was not entirely candid and who was communicating with out-of-state counsel and other pharmacy personnel about the litigation—in defending the lawsuit. As aggravating factors, the committee found that Respondent did not accept responsibility for the gravity of her conduct and that her reliance on the advice, direction, and influence of non-admitted counsel and other pharmacy personnel did not absolve her from responsibility to exercise independent judgment.

{5} The decision of the committee was subsequently reviewed by a hearing panel, composed of three members of the Disciplinary Board, pursuant to Rule 17-314(A) NMRA. In a brief order and decision, the panel accepted and adopted the hearing committee's findings of fact except those that found Respondent had violated the Rules of Professional Conduct, and then rejected the committee's conclusions of law. The panel also accepted the aggravating and mitigating factors, but refused to accept the committee's recommendation for discipline, and dismissed the complaint.

{6} Disciplinary counsel petitioned this Court to review the panel's decision. We remanded for the hearing panel to clarify its split decision and its reasons for not accepting the committee's conclusions of law and dismissing the complaints while accepting and adopting the hearing committee's findings of fact. In response, the panel issued an order stating that its decision was based on its belief in Respondent's explanation that she denied the existence of pharmacy records of missing methadone because her client continually assured her that the pill count discrepancy could be explained. The panel also stated that it believed Respondent's explanation that she did not produce the form filed with the New Mexico Board of Pharmacy because (1) she had not seen it, and (2) even though it reported a mis-filled prescription, she did not believe it reported lost or stolen drugs. The panel also stated that even though these responses may not have been "hyper-technically correct," it "did not believe or accept that the discovery responses were intended to deceive opposing counsel or the court by commission or omission." The panel then stated that it rejected several of the hearing committee's findings addressing the discovery violations and Respondent's failure to verify the authenticity of the forged prescription. Accordingly, the panel wrote, it did not agree with the committee's conclusions that Respondent had violated any of the Rules of Professional Conduct.

DISCUSSION

{7} As this Court recently clarified in In re Bristol, 2006-NMSC-041, ¶ 15, 140 N.M. 317, 142 P.3d 905 "the hearing committee is the only entity designated to take evidence during the course of a formal disciplinary proceeding." And, as we emphasized in that case, "[b]ecause the hearing committee directly observes witness testimony, it is in the best position to weigh the evidence, resolve matters of credibility, and choose between the conflicting inferences that may be drawn from the evidence." Id. In conducting its review of the committee's findings, therefore, "the hearing panel should defer to the hearing committee on matters of weight and credibility, viewing the evidence in the light most favorable to the hearing committee's decision and resolving all conflicts and reasonable inferences in favor of the decision reached by the hearing committee." Id. ¶ 16. As we pointed out, even though the panel is authorized by Rule 17-315 NMRA to make additional findings, "additional findings should be limited to factual issues not considered by the hearing committee or to situations where the hearing committee's findings are not supported by substantial evidence." In re Bristol, 2006-NMSC-041, ¶ 17, 142 P.3d 905. By contrast, the panel reviews the committee's legal conclusions de novo, while giving "`respectful consideration'" to the hearing committee's decision but remains free to draw its own legal conclusions and to make independent recommendations for discipline. Id. ¶ 18. This Court employs the same standard of review as that used by the hearing panel. Id. ¶ 26.

FINDINGS OF FACT

{8} In its original order, the panel wrote that it accepted all findings of fact made by the committee, except those that concluded Respondent violated the Rules of Professional Conduct. The panel then rejected all the committee's conclusions of law. We remanded for clarification of the split decision, and in its order filed in response, the panel stated that it had not accepted all the committee's findings and had rejected all those, which it enumerated, that did not support its conclusion that Respondent had violated none of the Rules of Professional Conduct. Insofar as several of these findings draw conclusions about whether Respondent violated the Rules of Professional Conduct, we will address whether those conclusions were supported by the findings later in this opinion, and review those issues de novo. In reviewing the panel's rejection of factual findings of the committee, however, we look to see whether it erroneously rejected findings that were supported by substantial evidence. We address each area of rejected findings in turn.

Findings Addressing Discovery of Inventory Reports Indicating Missing Drugs

{9} This group of rejected findings is extensive, and address Respondent's denial that inventory records of methadone supplies in the possession of the pharmacy on October 10, 2001, indicated that at least sixty...