Disciplinary Action Curl, In re, 85-1646

• Decision Date: 30 October 1986
• Docket Number: No. 85-1646,85-1646
• Citation: 803 F.2d 1004
• Parties: In re Disciplinary Action David L. CURL, Respondent INTERNATIONAL HARVESTER CREDIT CORPORATION, Plaintiff/Appellee, v. Johnny E. HENRY, d/b/a Jim's Pump and Drilling Company, a/k/a Bo Henry, Defendant/Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1004

803 F.2d 1004

10 Fed.R.Serv.3d 822

In re Disciplinary Action David L. CURL, Respondent

INTERNATIONAL HARVESTER CREDIT CORPORATION, Plaintiff/Appellee, v. Johnny E. HENRY, d/b/a Jim's Pump and Drilling Company, a/k/a Bo Henry, Defendant/Appellant.

No. 85-1646.

United States Court of Appeals, Ninth Circuit.

Oct. 30, 1986.

David L. Curl, Barassi & Curl, P.C., Tucson, Ariz., for defendant/appellant.

Before NELSON, CANBY and JOHN T. NOONAN, Jr., Circuit Judges.

NOONAN, Circuit Judge.

David L. Curl is a 34 year old lawyer, a partner in a small firm in Tucson, Arizona. He has an A.B. from Illinois University and a J.D., class of 1977, from Southern Illinois University. He has served as Assistant State Attorney in Vermilion County, Illinois. He is a member of the state bars of Illinois and Arizona, the Illinois Trial Lawyers' Association, and the American Bar Association. He is on the Grievance Committee of Pima County, Arizona.

On July 22, 1986, this court issued an order to David L. Curl that he show cause why sanctions should not be imposed on him for a misrepresentation made by him as counsel for Johnny E. Henry in the case of International Harvester Credit Corporation (Harvester) v. Henry, decided by this court July 22, 1986. David L. Curl responded with an affidavit seeking to excuse his misrepresentation. We now impose a sanction.

Background. On September 8, 1980, Henry executed a contract with Wes-Tex Equipment Company for the purchase of a drilling rig and water tank truck. Wes-Tex assigned the contract to Harvester. Henry paid $49,962.54 as a down payment and financed the remaining balance of $283,121.09. When Henry purchased the equipment he told Wes-Tex that he needed Bills of Sale and Manufacturer's Statements of Origin to register the equipment in California. Wes-Tex supplied these documents. He made payments totaling $45,355.51 on the equipment, but in August 1981, defaulted. The next month he secreted the equipment through a sham sales transaction, and took it to Mexico. Before the Third Civil Court of Sonora, Harvester sought to foreclose upon Henry. That court, basing its decision solely on Henry's answer, which alleged he had made payment in full, decided in his favor on March 24, 1983. On appeal before the Supreme Court of Sonora, the judgment was, in the words of that court, "modified" ("se modifica"). The foreclosure action ("la via ejecutiva") was found to have failed because of Harvester's failure to tender a return of the down payments. Harvester was condemned to pay the costs of the trial. All rights of Harvester were preserved to be asserted as appropriate ("por lo que se dejan a salvo sus derechos para que los haga valer en la via y forma correspondiente").

After the decision by the lower Mexican court and before the appeal was heard, Harvester served Henry in the United States. Henry sought summary judgment asking that the lower court decision in Mexico be accorded comity. Judge Alfredo C. Marquez denied this motion on May 31, 1984. Trial was scheduled for October 10, 1984. The day before the trial David L. Curl, Henry's counsel, presented a certified copy of the decision of the Supreme Court of Sonora in Spanish. In open court, Curl told Judge Marquez that the decision "affirms the lower court's order." The trial proceeded before a jury, which gave a verdict in favor of Harvester.

On appeal, Curl contended that there should have been no trial because the lower Sonora court decision should have barred Harvester's suit. "The Appellee here brought his original action in the Mexican court system and lost," his brief asserted.

This court found that no genuine issue was presented by Henry's appeal; that Harvester's rights had been expressly preserved by the decree of the Supreme Court of Sonora; and that Henry's appeal, based on the assertion of a Mexican judgment in his favor, had rested on a mischaracterization of the judgment. Attorney's fees and double costs were awarded Harvester against Henry. We then issued the show cause order directed to the more serious question of Curl's responsibility for the appeal.

Curl's Response. On August 18, 1986 Curl filed an affidavit in which he swore that, when he first received the judgment of the Supreme Court of Sonora, he "contacted his client," who told him that Raul Encinas, a Mexican lawyer from Hermosillo, had told Henry that the judgment "upheld the trial court in its entirety"; that Curl then had the judgment translated; that he then saw that it appeared that "the appeal had been dismissed without prejudice"; that Curl again contacted Henry who in turn contacted Encinas, who continued to maintain that Henry "had won the appeal in its entirety"; that after judgment against Henry in the federal district court and before taking this appeal, Curl spoke to another Mexican lawyer for Henry, Arturo Serrano of Aqua Prieta and that Curl speaking in "broken Spanish" and Serrano in "broken English," Serrano assured him that the Sonora judgment was entirely in Henry's favor, that "the bar to foreclosing on the property was bar to gaining possession of the property," and that Serrano would so testify if called as a witness. In summary, Curl swore that he and Henry were "misled by at least two Mexican attorneys."

Curl further pointed out that he had submitted the Sonoran judgment in Spanish and an accurate English translation of it to this court, leaving this court "free to decide what the interpretation of the Mexican Judgment" was. He added that it was his "duty to his client to represent him, within the bounds of ethics, and to take a position which may be sustained by evidence."

Discussion. A lawyer's duty to an appellate court consists in more than not putting false evidence before the court. Curl complied with the elementary obligation of not falsifying the record by providing the Sonoran judgment in Spanish with an accurate English translation. But Curl's obligations were greater. He had a duty not to misrepresent the evidence in argument before the court.

Curl in his brief for Henry stated that "the Mexican judgment had been rendered in favor of Defendant-Appellant Johnny Bo Henry in the appropriate amount of $370,000." Appellant's Brief, p. 5. Curl noted that the judgment had then been taken to a higher Mexican court. His appeal to our court was from the district court's failure "to recognize the Mexican judgments." Appellant's Brief, p. 2.

In his "Statement of Facts and Issues," Curl cited the words of the lower Mexican court that Henry had "payed the price of the transaction." He then stated that the Supreme Court of Sonora had "affirmed the lower court." Appellant's Brief, p. 4. In his "Summary of Argument," Curl began: "Since International Harvester voluntarily brought its action before the Mexican court system and lost, the doctrines of comity, collateral estoppel and res...