In the Matter of Ronald D. Mikus
| Decision Date | 28 March 2006 |
| Docket Number | Docket No. 29,313. |
| Citation | 2006 NMSC 012,131 P.3d 653 |
| Parties | In the MATTER OF RONALD D. MIKUS, An Attorney Licensed to Practice Before the Courts of the State of New Mexico. |
| Court | New Mexico Supreme Court |
Virginia L. Ferrara, Chief Disciplinary Counsel, Albuquerque, NM, for Petitioner.
Briggs F. Cheney, Esq., Albuquerque, NM, for Respondent.
{1} This attorney disciplinary proceeding comes before the Court pursuant to the Rules Governing Discipline. We are called upon to decide whether attorney Ronald D. Mikus (Respondent) engaged in conduct prior to his admission to the bar that warrants disciplinary sanctions. For the reasons that follow, we adopt the recommendation of the Disciplinary Board to suspend Respondent from the practice of law pursuant to Rule 17-206(A)(2) NMRA 2006.
{2} Prior to submitting his application for admission to the New Mexico Bar, Respondent and a former girlfriend traveled to Mexico and, on the return trip, became involved in an altercation near the border patrol checkpoint on I-25 north of Las Cruces, New Mexico. Apparently, the dispute arose because Respondent and his former girlfriend had purchased drugs in Mexico, including steroids, and Respondent was concerned that his former girlfriend would alert border patrol agents to the presence of the steroids in the car. The confrontation at the side of the road resulted in the girlfriend tumbling down an embankment, causing serious injury. Subsequently, a New Mexico state police officer contacted Respondent to schedule an appointment to discuss the incident. Although Respondent initially agreed to meet with the officer, Respondent cancelled the meeting after discussing the matter with an attorney. Shortly thereafter, Respondent submitted his application to take the New Mexico bar exam.
{3} A few days after taking the New Mexico bar exam, Respondent received a target letter notifying him of a grand jury investigation into a criminal complaint filed against him. Respondent subsequently appeared before the grand jury and was ultimately indicted on charges of aggravated battery against a household member and false imprisonment, both felony offenses. Less than two months after his indictment, Respondent was sworn-in to the New Mexico bar. Shortly thereafter, Respondent was convicted by a jury on both charges in the indictment, and the trial court imposed a deferred sentence of three years and placed Respondent on supervised probation.
{4} In Respondent's application for admission to the State Bar of New Mexico, the application asks, "Have you ever been charged with, arrested, or questioned regarding the violation of any law, including juvenile offenses?" If the answer is positive, the application asks for full details,
including dates, exact name and location of court, if any, case [number], references to court records, if any, the facts, the disposition of the matter; if no court records are available, give to the best of your ability the names and addresses of all persons involved, including counsel. (Include all such incidents no matter how minor the infraction or whether guilty or not except for minor violations which did not involve a court appearance.)
Respondent answered "no" to this question. The application also provided that "[i]f information becomes available subsequent to the date of this application you must supplement the application prior to your admission." In this regard, Respondent signed an oath providing, in part, that,
I fully understand that I have a continuing obligation to keep the Board of Bar Examiners advised of any additional information that would be pertinent to this application or my qualifications, prior to my admission. I also understand that I will not be admitted to the New Mexico Bar until any character and fitness issues arising from the application process have been resolved in my favor.
Respondent concedes that he never supplemented his application with information about his criminal indictment.
{5} The amended specification of charges against Respondent alleged several violations of the Rules of Professional Conduct. With regard to Respondent's failure to supplement his bar application, Respondent was charged with violating Rule 16-801(B) NMRA 2006 for failing to disclose a fact necessary to correct a misapprehension known by Respondent to have arisen in connection with a bar admission application, Rule 16-804(C) NMRA 2006 for engaging in conduct involving dishonesty, deceit, or misrepresentation, and Rule 16-804(H) for engaging in conduct reflecting adversely upon fitness to practice law. With regard to Respondent's criminal conviction, he was charged with violating Rule 16-804(B), for committing a criminal act reflecting adversely upon honesty, trustworthiness, or fitness, and Rule 16-804(H) for again engaging in conduct reflecting adversely upon fitness to practice law.
{6} Respondent admits that he was under an obligation to supplement his bar application with information about his criminal conduct, and Respondent concedes that he failed to do so. Respondent also acknowledges this Court's general policy of prohibiting an attorney who has been convicted of a crime from practicing law while serving a sentence of probation. See, e.g., In re Lopez, 116 N.M. 699, 866 P.2d 1166 (1994); In re Bryan, 116 N.M. 745, 867 P.2d 415 (1993); In re Griffin, 101 N.M. 1, 677 P.2d 614 (1983); In re Norrid, 100 N.M. 326, 670 P.2d 580 (1983). However, Respondent maintains that suspension is too severe a sanction in his case because the timing of his criminal conduct and bar application demonstrates that he did not intentionally fail to supplement his bar application and because his continued practice of law will not pose a danger to the public. For the reasons that follow, we conclude that suspension is the appropriate sanction in this case.
{7} As noted above, applicants to the State Bar of New Mexico are under an affirmative duty to update their bar applications to inform the Board of Bar Examiners of any occurrence or new information that might bear upon their qualifications or fitness to practice law. To underscore the importance of this obligation, a member of the Board of Bar Examiners testified before the hearing committee that had the Board known of Respondent's indictment, the Board would have not recommended admitting Respondent to the bar even though Respondent passed the bar examination. Consequently, had Respondent been forthright with the Board of Bar Examiners, as he should have been, in all likelihood he would not currently be a member of this bar.
{8} Even though Respondent's failure to supplement his bar application was not discovered in time to affect the decision to admit him to the bar, our own case law recognizes that misrepresentations on a bar application can be grounds for discipline. See In re Cherryhomes, 115 N.M. 734, 736, 858 P.2d 401, 403 (1993) (). We recognize that Respondent did not include an affirmative misrepresentation in his application as was the case in In re Cherryhomes.
{9} Nevertheless, whether the misrepresentation was by commission or omission, Respondent's failure to supplement his bar application calls into question his fitness to practice law. As one court has observed,
[c]andor and honesty are a lawyer's stock and trade. Truth is not a matter of convenience. Sometimes lawyers may find it inconvenient, embarrassing, or even painful to tell the truth. Nowhere is this more important than when an applicant applies for admission to the bar. In all instances, the applicant must display complete candor in all filings and proceedings required by the [bar]. Anyone who does not grasp that fundamental proposition should not be a lawyer.
In re Scavone, 106 N.J. 542, 524 A.2d 813, 820 (1987) (citations and internal quotation marks omitted); see also In re Press, 627 A.2d 842 (R.I.1993) (). We are not alone in requiring prospective members of the bar to supplement their bar applications with relevant information as it becomes available. See In re Chandler, 161 Ill.2d 459, 204 Ill. Dec. 249, 641 N.E.2d 473, 478 (1994) (). Without a doubt, Respondent's criminal indictment was a matter directly relevant to his character and fitness to practice law. By failing to supplement his bar application with that information, Respondent only made a bad situation worse.
{10} Respondent nevertheless attempts to minimize the seriousness of his actions by suggesting they were unintentional. However, the hearing committee who had the opportunity to take Respondent's testimony and observe him first-hand concluded that "Respondent failed to disclose a fact necessary to correct a misrepresentation known by him to have arisen in the matter," and "engaged in conduct involving dishonesty, deceit, or misrepresentation." We recognize that we are not bound by the findings and conclusions of the Disciplinary Board's hearing committee, and are free to accept them in whole, in part, or not at all. See Rule 17-316(D) NMRA 2006. But, to the extent that Respondent is arguing that the conclusions of the hearing committee are not supported by substantial evidence, we disagree. See Rule 17-316(A) ().
{11} As disciplinary counsel has pointed out, there is good reason to doubt Res...
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... ... Truth is not a matter of convenience. Sometimes lawyers may find it inconvenient, embarrassing, or even painful to tell the truth.'" In re Mikus, 2006-NMSC-012, ¶ 9, 139 N.M. 266, 131 P.3d 653 (per curiam) (quoting In re Scavone, 106 N.J. 542, 524 A.2d 813, 820 (1987)). As we have ... ...
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In re Treinen
...580 (1983). This policy was most recently reiterated in In re Key, 2005-NMSC-014, 137 N.M. 517, 113 P.3d 340, and In re Mikus, 2006-NMSC 012, ___ N.M. ___, 131 P.3d 653. {10} In In re Key, we also had occasion to allude to one, very limited, exception that we made to our policy in an unrepo......