Schmidt, Matter of, 22128

• Decision Date: 08 May 1996
• Docket Number: No. 22128,22128
• Citation: 1996 NMSC 19,121 N.M. 640,916 P.2d 840
• Parties: In the Matter of Carl J. SCHMIDT, Esq.
• Court: New Mexico Supreme Court

Page 840

916 P.2d 840

121 N.M. 640

In the Matter of Carl J. SCHMIDT, Esq.

No. 22128.

Supreme Court of New Mexico.

May 8, 1996.

[121 N.M. 641] Sally E. Scott, Deputy Chief Disciplinary Counsel, Albuquerque, for Disciplinary Board.

Carl J. Schmidt, Rio Rancho (no appearance).

OPINION

PER CURIAM.

For the second time in less than two years, disciplinary proceedings involving Carl J. Schmidt came before the Court. For reasons set forth below, Schmidt hereby is disbarred from the practice of law in New Mexico for violations of various Rules of Professional Conduct, SCRA 1986, 16-101 to 16-805 (Repl.Pamp.1995) and Rules Governing Discipline, SCRA 1986, 17-101 to 17-316 (Repl.Pamp.1995).

In the prior proceeding, respondent was found to have engaged in dishonest conduct in violation of Rule 16-804(C) as well as violations of other Rules of Professional Conduct. Pursuant to a conditional agreement not to contest and consent to discipline, respondent was suspended from the practice of law for a period of three years, effective May 24, 1994. The second and third years of the suspension were to be deferred in favor of supervised probation, provided Schmidt complied with certain terms of the consent agreement during the first year of suspension.

Almost immediately, respondent failed and refused to comply with the conditions to which he had agreed. On October 31, 1994, in a show cause proceeding initiated by the motion of chief disciplinary counsel pursuant to Rule 17-206(G), this Court revoked the previous deferral and suspended respondent for the entire three-year period of the original order of discipline.

The proceeding now before the Court arose out of respondent's representation of Elizabeth Chalamidas in pursuing claims arising out of the death of her husband, who died after being injured in a fall in May 1992. In early 1993, respondent collected $10,000 in medical pay benefits on the Chalamidas claim. Upon receipt of the settlement draft, respondent obtained the endorsement of Chalamidas and deposited the check into his trust account. Despite the repeated requests of Chalamidas, however, respondent failed to pay her husband's medical bills, provide an accounting, or remit funds to her.

In November 1994, Chalamidas filed a disciplinary complaint against respondent. In the course of investigating the complaint, disciplinary counsel subpoenaed respondent's trust account records for the period relevant to the Chalamidas settlement. The bank records revealed that the $10,000 settlement was deposited in the trust account on March 29, 1993, and that by July 26, 1993, the account had a negative balance. The records also disclosed that during the four-month period in which Chalamidas' funds were being dissipated, respondent made numerous cash withdrawals from trust, commingled personal and client funds in the trust account, maintained his trust account as an interest-bearing account, even though he was not a participant in the IOLTA program, and, most significantly, misappropriated the $10,000 belonging to Chalamidas.

Respondent made no response to the complaint, despite receiving two letters from disciplinary counsel requesting him to respond. The second letter specifically reminded respondent of his obligation to cooperate in the investigation as set forth in Rule 16-803(D). Respondent was personally served with the formal specification of charges in the disciplinary proceeding which followed. He failed to answer the charges, which resulted in the allegations being admitted pursuant to Rule 17-310(C). Respondent also failed to appear at any of the hearings held in this proceeding, although notice was provided to him.

Rule 16-803(D) requires a lawyer to "give full cooperation and assistance to the highest court of the state and to the disciplinary board, hearing committees and disciplinary counsel in discharging their respective functions and duties with respect to discipline and disciplinary procedures." Embodied in this rule is the obligation to respond to disciplinary counsel's request for a response to a complaint and the duty to provide additional information to disciplinary counsel, if asked to do so. Failure to provide information needed to complete investigation of a disciplinary complaint can constitute a violation of Rule 16-803(D).

If formal charges are filed, Rule 16-803(D) constrains the lawyer to answer the charges and appear before the hearing committee. Similarly, if hearings are scheduled in the proceeding by the disciplinary board and this Court, the...