In re Quintana

• Decision Date: 16 August 2001
• Docket Number: No. 26,646.,26,646.
• Citation: 130 N.M. 627,2001 NMSC 21,29 P.3d 527
• Parties: In the Matter of Orlando A. QUINTANA, Esquire, An Attorney Licensed to Practice Law Before the Courts of the State of New Mexico.
• Court: New Mexico Supreme Court

29 P.3d 527

130 N.M. 627

2001 NMSC 21

In the Matter of Orlando A. QUINTANA, Esquire, An Attorney Licensed to Practice Law Before the Courts of the State of New Mexico.

No. 26,646.

Supreme Court of New Mexico.

August 16, 2001.

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

Orlando A. Quintana, Clovis, NM.

OPINION

PER CURIAM.

{1} Two sequential disciplinary proceedings concerning the conduct of Orlando A. Quintana were conducted pursuant to the Rules Governing Discipline, Rules 17-101 to -316 NMRA 2001. In each proceeding, respondent committed multiple violations of the Rules of Professional Conduct, Rules 16-101 to -805 NMRA 2001. Due to the serious nature of the violations, Orlando A. Quintana is disbarred from the practice of law for a minimum of five years, with conditions for reinstatement and a mandatory period of probation if he is reinstated. {2} The specification of charges filed in the first proceeding addressed five client complaints alleging lack of diligence, contrary to Rule 16-103, and failure to communicate, contrary to Rule 16-104. These allegations arose from a series of cases in which respondent undertook to represent clients but then did little or nothing to pursue their legal matters. Perhaps the most egregious of these cases involved a client who retained respondent to fight for custody of his son and visitation rights with his stepdaughter. Although the client paid respondent $1,342.00, respondent did nothing between October 1998, when he was hired, and January 2000, when the client filed his disciplinary complaint. By that time, it had been almost two years since the client had seen the children.

{3} Another example of respondent's complete failure to discharge his responsibilities to these clients was evident in another complaint filed by a client who paid respondent $150.00 to have his driver's license reinstated. Although NMRA 1978, § 66-5-5(D) provides a relatively simple procedure for license reinstatement for which the client qualified, respondent took no action on his behalf.

{4} Respondent also was charged with failing to cooperate with disciplinary counsel during the investigation of these complaints, in violation of Rule 16-803(D). Disciplinary counsel wrote multiple letters before respondent answered. In some instances, respondent wholly failed to provide information requested by disciplinary counsel despite repeated requests. The charges also alleged that respondent's conduct violated Rule 16-804(D), conduct prejudicial to the administration of justice, and Rule 16-804(H), conduct that reflects adversely on a lawyer's fitness to practice.

{5} Because respondent filed no answer to the charges, disciplinary counsel's motion to deem the allegations admitted was granted in accordance with Rules 17-309(C)(2) and 17-310(C). Respondent did attend the hearing convened to consider factors in aggravation and mitigation and the appropriate sanction. The hearing committee found as aggravating factors respondent's substantial experience in the practice of law, having been licensed since 1988, engaging in a pattern of misconduct, committing multiple rule violations, and obstructing the disciplinary process by failing to cooperate with disciplinary counsel. See ABA Standards for Imposing Lawyer Sanctions § 9.22 (1991 ed. as amended 1992).

{6} The hearing committee found three mitigating factors: absence of a prior disciplinary record, absence of a selfish or dishonest motive, and sincere remorse demonstrated by respondent at the hearing. See ABA Standards for Imposing Lawyer Sanctions § 9.23 (1991 ed. as amended 1992). A fourth mitigating factor—that respondent had experienced personal and emotional problems—was noted by the committee with the statement that it was not an excuse for his misconduct. Because the purpose of lawyer discipline is the protection of the public, personal and emotional problems will not mitigate misconduct unless a meaningful and sustained period of rehabilitation can be shown. In re Zamora, 2001-NMSC-011, ¶¶ 7, 13, 130 N.M. 161, 21 P.3d 30. Only with such a showing can it be considered that the lawyer's difficulties are unlikely to pose a further threat to the public. In re Smith, 115 N.M. 769, 771, 858 P.2d 857, 859 (1993). Because respondent made no such showing, his personal problems were not appropriate for consideration in mitigation of his misconduct.

{7} The hearing committee recommended that respondent be suspended for one year, with suspension deferred in favor of supervised probation conditioned upon respondent's compliance with his supervisor's directives on caseload management, accepting new cases, providing competent and diligent representation to his clients, and adequately communicating with them. The recommended discipline also required respondent to make full restitution to the clients mentioned above, and to pay the costs of the disciplinary proceeding prior to seeking reinstatement to full licensure. Upon recommendation by the disciplinary board, this Court entered an order imposing the recommended discipline on November 13, 2000.

{8} During the pendency of the first proceeding, the office of disciplinary counsel received another client complaint that alleged more serious misconduct by respondent. Respondent represented a woman's ex-husband in post-decree divorce proceedings. The woman claimed her ex-husband owed her more than $9,000 awarded to her in the dissolution proceeding; the ex-husband countered by alleging that his ex-wife owed him more than he owed her, including child support for a period of time during which one or more of their children lived with him. In the first half of 2000, several district court hearings were held to address these issues. It was clear at these hearings that the woman was in need of the funds to which she was ultimately determined to be entitled.

{9} On January 28, 2000, the district court ordered respondent's client, the ex-husband, to attempt to borrow sufficient funds to pay his ex-wife $4,375.00, her attorney $3,230.17, and respondent $850.00. The ex-husband also was ordered to borrow an additional $5,000, which was to be paid into the court registry pending an evidentiary hearing to determine the portion to which his ex-wife was entitled. During a hearing on March 9, 2000, respondent stated he had received a total of $14,000.00 from his client, but had not had time to deposit it. The same day respondent wrote checks to disburse funds to the ex-wife, her attorney, and himself in accordance with the January 28, 2000, order. Respondent did not, however, deposit the $5,000.00 into the court registry.

{10} On or about June 12, 2000, the ex-wife's complaint against respondent was received in the office of disciplinary counsel. She alleged that the trust account check respondent wrote to her on March 9, 2000, to disburse the funds as ordered, did not clear the bank. In the course of investigating these allegations, disciplinary counsel learned from the district court clerk that a $5,000.00 trust account check written by respondent to the court registry was returned unpaid on June 14, 2000, due to insufficient funds.

{11} Based on these indications of problems with respondent's trust account, as well as respondent's failure to respond to the complaint, disciplinary counsel requested that the chair of the disciplinary board issue a subpoena duces tecum to respondent's bank for his trust account records. Utilizing the subpoena issued by the chair, the bank produced records for respondent's trust account for the period from March 2000, when the account was opened, through July 2000. The March 14, 2000, bank statement showed the deposit of the $14,000.00 on March 10, 2000, as well as deduction of the three court-ordered checks respondent wrote on March 9, 2000. It also showed that the balance of funds respondent continued to hold for his client was $5,544.83, which included the $5,000.00 he had been ordered to pay into the court registry. The April 13, 2000, bank statement did not reflect payment of the $5,000.00 into court. Nonetheless, the trust account balance reflected on the April statement was $2,640.00. Disbursements from the account during this statement period clearly showed that respondent was converting client funds to his own use. Checks had been written to Walmart, Office Max, Southwestern Public Service, and to respondent's secretary, bearing the notation, "3-20/3-24-00."

{12} By the end of the next statement period, May 14, 2000, the trust account had a negative balance, no deposit had been made into court registry, and checks written were almost exclusively for respondent's personal expenses. A deposit of a $924.00 check tendered by his client's ex-wife for child support she owed her ex-husband was deposited into the trust account and converted by respondent. The pattern of expenditures for respondent's personal purposes and a negative balance in the trust account continued through July 2000.

{13} The July 13, 2000, statement showed a number of deposits, including a $4,998.00 wire transfer from Annie Quintana, and two $2,500.00 checks tendered to respondent for the settlement of a personal injury case involving a minor at the time of the accident. The balance at the end of the period was $945.18. Although the usual checks were issued from the trust account to pay respondent's bills, no disbursements were shown to or for the child accident victim. The $5,000.00 check respondent deposited into the court registry for his client, the ex-husband, which was returned for insufficient funds the first time it was presented, cleared the second time on June 26, 2000.

{14} Not only did the bank records establish respondent's conversion of client funds, but other information showed the lengths to which respondent was willing to go to keep his misdeeds secret and his finances afloat. On August 3, 2000, a complaint was received from the...