In re Owen
| Decision Date | 27 June 2013 |
| Docket Number | Nos. 33,843,33,844.,s. 33,843 |
| Citation | 306 P.3d 452 |
| Parties | In the Matter of Maria E. OWEN, esquire. An Attorney Suspended from the Practice of Law in the State of New Mexico. and In the Matter of Alain Jackson, esquire. An Attorney Licensed to Practice Before the Courts of the State of New Mexico. |
| Court | New Mexico Supreme Court |
OPINION TEXT STARTS HERE
William D. Slease, Assistant Disciplinary Counsel, Jane Gagne, Assistant Disciplinary Counsel, Albuquerque, NM, for Disciplinary Board.
Maria E. Owen, Albuquerque, NM, Respondent Pro Se.
Alain Jackson, Albuquerque, NM, Respondent Pro Se.
OPINION AND PUBLIC CENSURE
{1} This matter comes before this Court following disciplinary proceedings conducted under the Rules Governing Discipline, Rules 17–201 to –214 and 17–301 to –316 NMRA, in which the Disciplinary Board (Board) found that attorneys Maria E. Owen and Alain Jackson (Respondents) violated multiple Rules of Professional Conduct. The disciplinary proceedings arose from a business lease dispute in which Owen transferred representation of clients to Jackson.
{2} On August 6, 2012, a hearing committee of the Disciplinary Board entered findings of fact, conclusions of law, and recommendations for discipline, which were approved by the Board on September 20, 2012. Following oral argument we issued an order on November 15, 2012, adopting the recommendations of the Disciplinary Board with several modifications. We suspended both Respondents for eighteen months to be deferred with certain terms and conditions, including supervision by a licensed attorney and payment of restitution to Complainants. We also ordered Respondents to take and pass the Multistate Professional Responsibility Examination (MPRE). Finally, we ordered that Respondents receive a public censure for their misconduct. This Opinion serves as Respondents' public censure and shall be published in the State Bar of New Mexico Bar Bulletin and New Mexico Appellate Reports.
{3} The following factual background is taken from the Disciplinary Board's findings of fact and conclusions of law. At various points in time, Respondents each represented Ruth Porta and Karen Diaz (Complainants), who owned a daycare business. Owen represented Complainants in a landlord-tenant lease dispute regarding the premises of the daycare as well as two other matters. On May 17, 2010, Owen transferred her representation of Complainants daycare lease dispute to Jackson. All parties agreed and consented to the transfer. Shortly thereafter, on May 25, 2010, Jackson filed a lawsuit on behalf of Complainants against defendants MyBank, the mortgage holder, and Nikolaus and Indra Filip, the property owners.
{4} As a result of personal issues, family illness, and his father's death, Jackson failed to properly attend to the lawsuit after filing it. On July 6, 2010, MyBank filed a motion to dismiss Complainants' lawsuit. Jackson failed to file a response to the motion or to inform his clients of the motion. Due to his inattentiveness, in late July or early August of 2010, Complainants fired Jackson and rehired Owen. Owen agreed to take over Complainants' lawsuit and notified Jackson that she intended to do so. Also at this time, Owen obtained Complainants' file from Jackson's office.
{5} Although Complainants had terminated Jackson as their attorney, Jackson failed to withdraw as counsel of record in the lawsuit, or notify the court or opposing counsel of this development. To make matters worse, Owen failed to file an entry of appearance or substitution of counsel in the lawsuit. Due to Jackson's failure to properly withdraw as counsel of record and Owen's failure to properly enter her appearance and notify the court that she was now counsel of record, Jackson continued to receive all notices, correspondence, and pleadings regarding the lawsuit. Both Jackson and Owen were aware of this.
{6} Jackson delivered the notices, correspondence, and mail regarding the lawsuit to Owen or Owen's husband, who Owen employed at her law firm. Conveniently, both Owen's and Jackson's offices were located in the same building.
{7} John Campbell, an attorney for the individual defendants, the Filips, entered an appearance and attempted to contact Jackson regarding the lawsuit. Jackson eventually left Mr. Campbell a voice mail informing him that he no longer represented Complainants and that Owen had taken over the case.
{8} Complainants experienced many problems with Owen's representation. Owen took “no action whatsoever on behalf of Complainants in the lawsuit.” Additionally, Owen “failed or refused to respond to Complainants' inquiries and at other times gave assurances to the effect that nothing was happening in the lawsuit.” Despite these assurances, on November 1, 2010, the Filips filed an answer, a counterclaim, and a motion to dismiss the lawsuit. Campbell also informed both Owen and Jackson that he sought to remove Complainants' daycare center from the Filip's property and was preparing a motion for summary judgment to this effect.
{9} Campbell filed the motion for summary judgment and writ of execution on behalf of the Filips seeking to evict Complainants' daycare business from his clients' property on December 13, 2010. Jackson and Owen failed to respond either to MyBank's motion to dismiss or to the individual defendants' motion to dismiss, counterclaim, motion for summary judgment, and writ of execution.
{10} On December 20, 2010, the court granted MyBank's motion to dismiss, recognizing that neither Complainants nor counsel had appeared. Less than three months later, on March 7, 2011, “the Court substantially granted the Filips' Motion for Summary Judgment and issued a Writ of Execution in Forcible Entry or Detainer.” That very same day, Campbell emailed Jackson copies of the court orders.
{11} Jackson and Owen failed to attend court hearings and also failed to inform Complainants about the dismissal order, the summary judgment, or the writ of execution. It was only after the court had granted MyBank's motion to dismiss and the Filip's motionfor summary judgment and writ of execution that Owen belatedly notified the clients. Realizing that the court had granted an eviction order, Owen called Complainant Diaz on March 10, 2011, and informed her that their daycare business was being evicted as of April 1, 2011.
{12} Upon learning this, Complainant Diaz asked for her file from Owen, which Owen's husband delivered the next day. Following these events, Complainants obtained new legal counsel who persuaded the court to set aside the summary judgment and writ of execution. This cost Complainants $6,400 in legal fees.
{13} Both Respondents violated Rule 16–101 NMRA (). Owen violated Rule 16–103 NMRA (), Rule 16–104(A)(2) and (3) NMRA (requiring consultation with client regarding objectives and requiring attorney “to keep the client reasonably informed about the status of the matter”), and Rule 16–302 NMRA (). Jackson violated Rule 16–116(D) NMRA ().
{14} Respondents did not act competently in handling Complainants' lease dispute. SeeRule 16–101 ( ). Attorney inaction constitutes lack of competence. See In re Gallegos, 104 N.M. 496, 498–99, 723 P.2d 967, 969–70 (1986) ().
{15} Jackson's inactions included failing to respond to MyBank's motion to dismiss and then, after transferring the case back to Owen, failing to file a notice of withdrawal and substitution of counsel. Owen also failed to competently represent Complainants. Once she re-acquired representation of Complainants, Owen failed to file an entry of appearance or substitution of counsel, leaving Jackson as the only attorney of record. See In re Trujillo, 110 N.M. 180, 181, 793 P.2d 862, 863 (1990) (). After again accepting representation of Complainants' case from Jackson, Owen took no further action on the case. Essentially, both attorneys abandoned their clients. See In re Shepard, 115 N.M. 687–89, 858 P.2d 63, 63–65 (1993) (). “An attorney's abandonment of her clients ... causes direct harm to her clients and undermines public confidence in the legal profession.” Id. at 689, 858 P.2d at 65.
{16} The failure by both Respondents to file the appropriate entry, withdrawal, or substitution of counsel motions reveals a basic lack of competency and diligence. See In re Chavez, 2013–NMSC–008, ¶ 11, 299 P.3d 403 (). A simple follow-up by either Jackson or Owen would have set the record straight as to who legally bore responsibility for continued representation of Complainants. Respondents' inaction and lack of thoroughness caused Complainants to suffer adverse consequences and incur additional attorney fees.
{17} Respondent Owen committed numerous violations of the Rules of Professional Conduct. First, Owen was not diligent in representing Complainants. According to Rule 16–103, “A lawyer shall act with reasonable diligence and promptness in representing a client.” Owen took no action on Complainants' case, utterly failing to...
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