In re Chavez

Citation2000 NMSC 15,1 P.3d 417,129 N.M. 35
Decision Date10 May 2000
Docket NumberNo. 23,890.,23,890.
PartiesIn the Matter of Santiago R. CHAVEZ An Attorney Disbarred from Practice Before the Courts of the State of New Mexico
CourtSupreme Court of New Mexico

Arne Leonard, Deputy Disciplinary Counsel, Albuquerque.

Santiago R. Chavez, Pro Se, Taos.

OPINION

PER CURIAM.

{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 XX-XX-XXX, 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 XX-XX-XXX 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 XX-XX-XXX. 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 XX-XX-XXX 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, 1996-NMSC-059, 122 N.M. 504, 927 P.2d 1042

. A specification of charges alleging two new counts of professional misconduct was filed against respondent in disciplinary cause numbered XX-XX-XXX on January 27, 1999. Another specification of charges alleging an additional six counts of professional misconduct was filed against Respondent in disciplinary cause numbered XX-XX-XXX on November 16, 1999. Although tried separately below, we consolidate our discussion of the causes for purposes of this opinion.

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 Vernon-Kowalski filed a complaint with the disciplinary board alleging that respondent failed to account for two checks 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 case. Respondent failed to respond to the client's request.

{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 client 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...

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