In re Allred

• Decision Date: 27 July 2001
• Docket Number: No. 18,416.,18,416.
• Citation: 130 N.M. 490,27 P.3d 977,2001 NMSC 19
• Parties: In the Matter of Lawrence W. ALLRED, Esq., An Attorney Licensed to Practice Before the Courts of the State of New Mexico.
• Court: New Mexico Supreme Court

27 P.3d 977

130 N.M. 490

2001 NMSC 19

In the Matter of Lawrence W. ALLRED, Esq., An Attorney Licensed to Practice Before the Courts of the State of New Mexico.

No. 18,416.

Supreme Court of New Mexico.

July 27, 2001.

Sally Scott-Mullins, Deputy Chief Disciplinary Counsel, Albuquerque, NM, for Disciplinary Board.

Michael W. Lilley, Las Cruces, NM, for Respondent.

OPINION

PER CURIAM.

{1} This matter, involving two consolidated sets of disciplinary charges, came before the Court upon recommendation of the disciplinary board to impose upon respondent, Lawrence W. Allred, a three-year suspension of his license to practice law. We adopt the recommendation and hereby suspend respondent pursuant to Rule 17-206(A)(2) NMRA, with the second and third years of suspension deferred in favor of supervised probation with conditions.

{2} Formal disciplinary charges were filed in March 2000, alleging that respondent had engaged in a pattern of neglect and failure to communicate in each of three criminal cases; respondent represented the defendant in each case pursuant to a contract with the Public Defender Department. In addition, respondent was charged with failure to cooperate with disciplinary counsel in the discharge of her duties. Although he provided an initial response to the first complaint received by disciplinary counsel, respondent failed to provide additional information she requested and also failed to provide even an initial response to the second and third complaints.

{3} The second and third complaints included in the first set of charges were prototypical of subsequent complaints and formal charges that are also before this Court. Both complaints involved clients that respondent had represented at trial on criminal charges, who then wanted to appeal their convictions. Respondent filed a notice of appeal for only one of these clients and failed to timely file docketing statements in the other two cases. In a pattern that would be repeated in the complaints addressed in the second set of charges, respondent continued his failure and refusal to timely file docketing statements, despite letters from his clients and the Appellate Public Defender and motions the Appellate Public Defender filed with the Court of Appeals to compel respondent to file the docketing statements. Not until the Court of Appeals issued show cause orders did respondent file the docketing statements in each of the two cases. One docketing statement was more than eighteen months late; the other was more than a year late.

{4} Respondent's answer to the first set of charges admitted the general allegations but contended that these failures were isolated lapses of his obligations. The answer also alleged that respondent had been "suffering from severe personal and emotional problems which precipitated his failure to timely file documents." Respondent's answer stated he was taking steps to address these problems.

{5} After the issue of personal problems was raised in the answer, respondent agreed to undergo a psychological evaluation. The resulting report recognized a variety of adjustment issues that caused respondent problems, particularly during periods of high stress. The report stated that respondent's first line of defense when criticized during such periods is stubborn noncompliance and noted that respondent's use and abuse of alcohol increased during these times. The evaluating psychologist recommended that respondent abstain from the use of alcohol, attend an outpatient alcohol treatment program, and undergo psychological counseling. Finally, the report recited respondent's intention to close his practice and to work only for other attorneys and recommended that course of action.

{6} After the psychological evaluation, the parties entered into a conditional agreement admitting allegations and consent to discipline that provided for a three-year deferred suspension, during which respondent would be placed on supervised probation. The consent agreement incorporated the recommendations of the psychological evaluation, including abstinence from alcohol and participation in an outpatient treatment program, and provided for random drug tests. The consent agreement also provided that if any disciplinary complaints filed against respondent were found to have sufficient merit to warrant the filing of additional charges, disciplinary counsel could seek revocation of the deferred suspension. Respondent signed the consent agreement on June 20, 2000, and it was submitted to the hearing committee the same day. On July 6, 2000, the hearing committee issued its decision recommending that the consent agreement be accepted; the consent agreement was then referred to a panel of the disciplinary board for consideration.

{7} On July 19, 2000, disciplinary counsel received correspondence from the clerk of the New Mexico Court of Appeals enclosing a copy of a show cause order issued by the court on July 6, 2000. The order recited that on May 21, 2000, respondent was ordered to show cause in writing why he should not be sanctioned for failing to file the record proper in another criminal appeal and that respondent had not filed a written response, as ordered. The July 6, 2000, order also stated that on June 6, 2000, the court had ordered respondent to show cause in writing why he should not be sanctioned for failing to file a docketing statement in yet another criminal case; respondent had failed to respond as ordered in that case as well. The response to the June 6, 2000, order was due June 16, 2000, four days before respondent executed the consent agreement.

{8} On July 27, 2000, respondent appeared before the New Mexico Court of Appeals as directed by the July 6, 2000, show cause order. He revealed to the court that he had two more cases pending before the court in which he had failed to timely file docketing statements or requests for extension; these docketing statements were due between the time respondent was served with the July 6, 2000, show cause order and the date of the show cause hearing.

{9} During this same period of time, disciplinary counsel became aware that respondent had not begun to receive counseling, despite the affirmative statement in his answer to the initial charges that he "is seeking professional help for his personal and emotional problems." Based on the additional instances of respondent's pattern of neglecting his clients' criminal appeals, including two deadlines missed after he signed the consent agreement, and his continuing failure to begin therapy, disciplinary counsel filed a motion asking the board panel to reject the consent agreement and remand the matter to the hearing committee. Respondent consented to the remand.

{10} The second set of disciplinary charges was filed on August 23, 2000; these charges addressed additional complaints filed by former clients, as well as a chief disciplinary counsel complaint based on the July 6th show cause order issued by the New Mexico Court of Appeals. One of the counts addressed the allegations of a complaint filed by a divorce client; this complaint, which also alleged inaction and failure to communicate, contradicted respondent's statements that his failures were the result of "public defender burnout."

{11} After the two sets of disciplinary charges were consolidated for hearing, the parties entered into extensive stipulations of fact and law. The stipulations reflected respondent's admission that his conduct violated certain provisions of the Rules of Professional Conduct, including Rule 16-103 (diligence); Rule 16-104 (communication with client); Rule 16-302 (expediting litigation); Rule 16-803(D) (cooperation with disciplinary counsel), and Rule 16-804(H) (conduct reflecting adversely on fitness to practice law).

{12} Respondent did not stipulate that his failure to timely file docketing statements constituted a violation of Rule 16-101 (competence) and Rule 16-804(D) (conduct prejudicial to administration of justice.) The hearing committee found that respondent had failed to provide competent representation and engaged in conduct prejudicial to the administration of justice, in violation of Rules 16-101 and 16-804(D).

{13} The joint stipulations of the parties also addressed factors in aggravation and mitigation. Aggravating and mitigating factors, where present, may increase or decrease the amount of discipline imposed. ABA Standards for Imposing Lawyer Sanctions, §§ 9.21 and 9.31(1991 as amended Feb. 1992).

{14} The stipulated aggravating factors were respondent's substantial experience in the practice of law, having been licensed since 1980, the commission of multiple ethical infractions, the existence of a pattern of misconduct, and two prior disciplinary proceedings addressing infractions almost identical to those before the Court today. See id at § 9.22 (definition and list of aggravating factors). An additional aggravating factor found by the committee was the vulnerability of respondent's clients based upon their indigency and incarceration. See id. at § 9.22(h) (vulnerability of victim). We agree and consider that aggravating factor as well as the stipulated aggravating factors.

{15} The stipulated mitigating factors were that respondent's prior discipline was remote in time, having been imposed in 1987 and 1989, that his misconduct did not evince a dishonest or selfish motive, and that respondent enjoys a good reputation as a trial lawyer. We agree that remoteness in time of prior discipline, absence of a dishonest or selfish motive, and a good reputation as a lawyer are valid mitigating factors. See id. at § 9.32 (factors in mitigation). There is a difference, however, between not having a prior disciplinary record and having one, albeit remote in time. This Court will determine on a case-by-case basis the extent to which such factors will impact the discipline imposed. Where, as here, the prior discipline was imposed more than ten years...