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                                                             New Mexico Compilation
                                                           Commission, Santa Fe, NM
                                                          '00'04- 09:48:51 2013.04.15
       IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: 2013-NMSC-008

Filing Date: March 14, 2013

Docket No. 33,280

IN THE MATTER OF
GENE N. CHAVEZ, ESQUIRE

AN ATTORNEY SUSPENDED FROM
THE PRACTICE OF LAW BEFORE
THE COURTS OF THE STATE OF
NEW MEXICO

Jane Gagne, Assistant Disciplinary Counsel
Albuquerque, NM

for Disciplinary Board

Ray Twohig
Albuquerque, NM

for Respondent

                                       OPINION

MAES, Chief Justice

{1}     This public censure of attorney Gene N. Chavez (Respondent) follows disciplinary
proceedings conducted under the Rules Governing Discipline, Rules 17-101 to -316 NMRA,
in which the Disciplinary Board found that Respondent violated multiple Rules of
Professional Conduct. The disciplinary proceedings arose from Respondent’s representation
of clients in two unrelated matters, a legal malpractice case and a criminal case. On March
15, 2012, a hearing committee of the Disciplinary Board entered findings of fact and
conclusions of law, which the Court has adopted. Respondent’s misconduct included
multiple acts of dishonesty, the failure to represent his clients with competence and
diligence, and the placement of an unreasonable limitation on the scope of his legal
representation. On September 19, 2012, we concluded that Respondent’s ethical violations
warranted suspension, and we ordered that Respondent be suspended from the practice of
law, pay the costs of his disciplinary proceedings, and receive this public censure.

LEGAL MALPRACTICE LAWSUIT

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A.     Background

{2}      One of the two charges in this case arose out of Respondent’s representation of two
plaintiffs in a legal malpractice lawsuit against the plaintiffs’ former attorney. The case was
the first legal malpractice lawsuit that Respondent had undertaken since Respondent began
operating his own private practice in about 2004.

{3}     In their complaint for legal malpractice, the plaintiffs alleged that their former
attorney had breached her duties to them in five separate ways. The plaintiffs needed expert
testimony to prove most of the alleged breaches. See, e.g., Rancho del Villacito
Condominiums, Inc. v. Weisfeld, 121 N.M. 52, 55-56, 908 P.2d 745, 748-49 (1995) (stating
that expert testimony is usually needed to prove legal malpractice). On July 8, 2010,
Respondent wrote to the defendant, stating that he had “spoken to many personal injury
attorneys that would be willing to serve as an expert witness that your actions were below
the standard of care.” The Disciplinary Board found that Respondent’s statement was not
credible because Respondent never retained or named any expert witness by the January 11,
2011, court-ordered deadline for disclosing witnesses.

{4}     On February 14, 2011, the defendant moved for summary judgment on the ground
that Respondent had not named an expert witness to testify in support of his clients’
malpractice claims. Respondent filed a response in which he failed to set forth any argument
as to why an expert witness was not required to prove the defendant’s negligence. Instead,
Respondent attached his own affidavit to the response, purportedly as a Rule 1-056(F)
NMRA affidavit. See Rule 1-056(F) (“Should it appear from the affidavits of a party
opposing the motion that he cannot for reasons stated present by affidavit facts essential to
justify his position, the court may refuse the application for judgment or may order a
continuance to permit affidavits to be obtained or depositions to be taken or discovery to be
had or may make such other order as is just.”). In his affidavit, Respondent represented that
the plaintiffs had “been unable to obtain a statement, affidavit or letter from such expert
witnesses that would be necessary to rebut the allegations raised” in the motion for summary
judgment.

{5}     Additionally, Respondent asserted in his affidavit that there was a pending attorney
disciplinary complaint against the defendant and stated that his clients might need to
supplement their witness list, depending on the outcome of the complaint. On March 10,
2011, opposing counsel wrote to Respondent, informing him that there was no pending
disciplinary complaint against the defendant and asking Respondent to retract his statement.
Respondent ignored the letter and failed to retract the statement or inform the court that the
statement was incorrect. In a subsequent telephone conversation, opposing counsel again
urged Respondent to withdraw the false statement. Rather than agreeing to correct the false
statement, Respondent replied that “it would be easy” to file a disciplinary complaint against
the defendant.

{6}    On April 13, 2011, the district court held a hearing on the motion for summary

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judgment. Respondent did not attend the hearing but instead gave this task to his newly
hired associate, who attended the hearing by telephone. At the hearing, Respondent’s
associate neither provided argument regarding why an expert witness would not be necessary
in the case nor corrected the false statement that Respondent had submitted to the court
regarding a disciplinary complaint. The court granted the defendant’s motion for summary
judgment.

{7}     On October 27, 2011, Respondent moved the court to set aside the judgment. See
Rule 1-060(B)(2) (providing that “the court may relieve a party . . . from a final judgment”
if there is “newly discovered evidence which by due diligence could not have been
discovered in time to move for a new trial under Rule 1-059 NMRA”). In the motion,
Respondent asserted that the defendant, in the course of representing Respondent’s clients,
had failed to release a hospital lien for $9,501.18. Respondent mailed a copy of the motion
to opposing counsel before Respondent filed the motion with the court. Opposing counsel
responded with information demonstrating that the lien had, in fact, been released. Several
weeks later, Respondent filed the motion in the district court without correcting the
misrepresentation regarding the hospital lien, even though Respondent knew the lien had
been released.

B.      Discussion

{8}      Respondent’s representation of his clients in the legal malpractice suit exhibits a
pattern of knowing misrepresentations to the court. First, Respondent asserted in his Rule
1-056(F) affidavit that he had been unable to obtain a statement, affidavit, or letter from an
expert witness, when in fact it appears that Respondent failed to ever consult with any
potential expert witnesses. Second, Respondent stated falsely in his affidavit that there was
a pending attorney disciplinary complaint against the defendant. At his disciplinary hearing,
Respondent testified that he relied on conversations with an employee and his clients in
concluding that a disciplinary complaint had been filed. But, assuming the pendency of a
disciplinary complaint had been relevant to the motion for summary judgment, which it was
not, Respondent would have had a duty to exercise independent judgment and determine
whether there was in fact a pending disciplinary complaint. Cf. In re Estrada, 2006-NMSC-
047, ¶¶ 23, 27, 140 N.M. 492, 143 P.3d 731 (lawyer’s reliance on representations of others
without exercise of independent judgment violated Rules of Professional Conduct).
Moreover, Respondent knew by March 10, 2011, that his statement in the affidavit was false
yet failed to correct the false statement. Finally, Respondent filed his motion to set aside the
judgment after learning that the motion contained a false statement regarding the hospital
lien.

{9}     By filing court documents that contained false statements of fact, Respondent
violated Rule 16-301 NMRA, which prohibits a lawyer from asserting an issue in a
proceeding when there is no basis in law and fact for doing so, and Rule 16-303(A) NMRA,
which prohibits a lawyer from “mak[ing] a false statement of fact to a tribunal or fail[ing]
to correct a false statement previously made to a tribunal.”

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{10} Respondent’s assertion regarding the nonexistent disciplinary complaint also violated
Rule 16-404(A) NMRA, which provides that “[i]n representing a client, a lawyer shall not
use means that have no substantial purpose other than to embarrass, delay or burden a third
person[.]” Whether a disciplinary complaint was pending against the defendant was
irrelevant to whether Respondent’s clients could prove their claims without expert testimony,
and Respondent’s inclusion of this misinformation served no purpose other than to
embarrass or burden the defendant.

{11} Additionally, Respondent’s failure to name an expert by the court-ordered witness
disclosure deadline fell below the standards of competence and diligence required of
attorneys. See Rule 16-101 NMRA (“Competent representation requires the legal
knowledge, skill, thoroughness and preparation reasonably necessary for the
representation.”); Rule 16-103 NMRA (requiring a lawyer to “act with reasonable diligence
and promptness in representing a client”). During his disciplinary hearing, Respondent
testified that he believed expert testimony would not be necessary to prove legal malpractice
in his clients’ case. The hearing committee concluded that Respondent’s statement in this
regard was not credible, and that in any event, Respondent was wrong to conclude that an
expert was unnecessary. Because Respondent lacked experience in the field of legal
malpractice, Respondent should have either devoted adequate time and study to the case or
associated himself with an experienced, competent legal malpractice attorney. Cf. In re
Hanratty, 110 N.M. 354, 356, 796 P.2d 247, 249 (1990) (representing clients in bankruptcy
matter without being competent in that area of law or associating with competent bankruptcy
counsel violated Rule 16-101 and warranted suspension).

CRIMINAL DEFENSE CASE

A.     Background Facts

{12} The second disciplinary charge in this case arose out of Respondent’s representation
of a criminal defendant who had been accused of sexual misconduct involving his minor
niece. The defendant was charged with criminal sexual penetration along with four other
charges, and he faced a total possible sentence of almost fifty-two years of incarceration.

{13} On September 2, 2010, the defendant’s wife retained Respondent to represent the
defendant and signed a legal services contract with Respondent. In the contract, Respondent
agreed to represent the defendant for the limited purpose of negotiating a plea agreement for
a flat fee of $2,500. During the course of the criminal case against his client, Respondent
conducted no discovery and did no witness interviews. Respondent’s limited interactions
with his client included a total of only four or five encounters, including conversations by
telephone and in-person meetings at the courthouse.

{14} The court held a plea hearing in the defendant’s case on March 3, 2011. Respondent
did not attend the hearing but sent his newly hired associate to represent the defendant.
Although the defendant was expected to enter into a plea agreement at the hearing, the

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defendant ultimately rejected the State’s offer.

{15} On March 15, 2011, six weeks before the defendant’s trial was scheduled to begin,
Respondent moved the court for permission to withdraw from the representation, without
first discussing his desire to withdraw with his client. In the motion, Respondent cited a
breakdown of the attorney-client relationship as the reason for the withdrawal. But in truth,
Respondent sought to withdraw because Respondent had accepted a flat fee of only $2,500
for the sole purpose of negotiating a plea agreement.

{16} On March 31, 2011, the court held a hearing on Respondent’s motion to withdraw.
Respondent did not attend the hearing but again sent his associate to appear on his behalf.
The court denied the motion. After the court denied the motion to withdraw, Respondent
informed the prosecutor that he would “do nothing to prepare for trial.” At his disciplinary
hearing, Respondent claimed that he wrote this to the prosecutor to “set up a claim for
ineffective assistance of counsel.”

B.     Discussion

{17} Respondent violated multiple Rules of Professional Conduct during the course of
representing the defendant. At the outset of the representation, Respondent violated Rule
16-102(C) by placing an unreasonable limitation on the scope of representation. The Rules
of Professional Conduct permit a lawyer to “limit the scope of representation if the limitation
is reasonable under the circumstances and the client gives informed consent.” Rule 16-
102(C). But a lawyer cannot reasonably agree to represent a criminal defendant for the sole
purpose of negotiating a plea because a lawyer must always “abide by a client’s decision .
. . as to a plea to be entered.” Rule 16-102(A) NMRA; see State v. Jones, 923 P.2d 560, 566
(Mont. 1996) (allowing a lawyer to withdraw from representing a client because the client
rejected a plea agreement would run “directly afoul of Rule 1.2(a)” of the Model Rules of
Professional Conduct); see also McConnell v. State, 212 P.3d 307, 314 (Nev. 2009)
(“Although counsel certainly owes a duty to advise his client whether to plead guilty,
counsel does not have the authority to override a defendant’s decision to plead guilty. That
decision is reserved to the client.”). Thus, when Respondent entered into a contract for
limited legal services for a flat fee with the defendant’s spouse, Respondent should have
been cognizant that neither the spouse nor Respondent could decide for the defendant
whether to accept the terms of any plea agreement offered by the prosecution. A lawyer
should not establish a fee arrangement that may put the client at a disadvantage if
circumstances change during the course of the representation. See Rules 16-101 & -102(C).

{18} Additionally, after accepting the defendant’s case, Respondent breached his duty to
provide the defendant with competent, diligent representation. See Rules 16-101 & -103.
Despite the expectation that the defendant would enter into a plea agreement, Respondent
had the duty to prepare for trial, including conducting reasonable discovery and investigation
into the case. See id. And once the defendant rejected the plea offer, Respondent should
have diligently continued his trial preparation rather than attempting to abandon his client.

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See id.

{19} Finally, Respondent violated Rule 16-303(A) when he lied to the court about the
reason he sought to withdraw from the representation. Rather than admitting that he had
accepted a fee of only $2,500 for the case, Respondent asserted that there had been a
breakdown of the attorney-client relationship. As in the malpractice lawsuit, Respondent’s
dishonesty in the criminal case demonstrates his willingness to compromise the truth when
convenient to do so.

DISCIPLINE

A.        Respondent’s Prior Disciplinary Case

{20} Before explaining the discipline that is warranted under the circumstances of this
case, we begin by noting that this is the second time Respondent has come before the Court
on disciplinary charges. In 2011, Respondent was charged with violating numerous Rules
of Professional Conduct, including a charge that he violated Rule 16-101 by failing to timely
respond to a motion for summary judgment and a charge that he violated Rule 16-303 by
making a false statement in a motion to withdraw. In response to the disciplinary charges,
Respondent entered into a consent agreement on August 23, 2011, in which he agreed not
to contest that he had violated Rules 16-101 through -105, -107, -115, -116, -300, -302
through -304, -404, -503, and -804 NMRA.

{21} The vast majority of the ethical violations in Respondent’s first disciplinary case
arose from Respondent’s mismanagement of his high volume law practice. Based on
Respondent’s conduct and the terms of the consent agreement, on November 28, 2011, we
suspended Respondent from the practice of law for a period of six months, but we deferred
the suspension for one year upon certain terms and conditions. To address Respondent’s
mismanagement of his private practice, we placed Respondent on supervised probation
under Rule 17-206(B) for a period of one year and appointed an attorney to supervise
Respondent. Under the terms of supervised probation, we required Respondent to (1) meet
regularly with his supervising attorney; (2) accept instruction from his supervising attorney
in the areas of law office management, caseload management, and the development of a
system for prompt communication with clients and opposing counsel; (3) comply with the
Rules of Professional Conduct and the Rules Governing Discipline; and (4) attend
continuing legal education courses on law office practice management. Respondent’s initial
term of supervised probation would have expired on November 28, 2012, if the Court had
not extended Respondent’s probation as a consequence of the case now before us.

B.        Respondent’s Conduct Warrants Suspension.

{22} We now turn to the appropriate sanction to impose in this case, guided by the ABA
Standards for Imposing Lawyer Sanctions (2005) (ABA Standards). See In re Convisser,
2010-NMSC-037, ¶ 42, 148 N.M. 732, 242 P.3d 299. The hearing committee recommended

                                             6
that the Court publicly censure Respondent under Rule 17-206(A) of the Rules Governing
Discipline and assess the costs of the disciplinary proceedings against Respondent. The
hearing committee considered Disciplinary Counsel’s recommendation of an indefinite
suspension for a minimum of six months, but ultimately concluded that a public censure was
sufficient to communicate to Respondent the seriousness of his conduct. In recommending
a public censure, the hearing committee found three aggravating factors: (1) Respondent’s
prior disciplinary case, discussed above; (2) the fact that this case involves multiple offenses;
and (3) Respondent’s “substantial experience in practicing law.” See ABA Standards §
9.22(a), (d) & (i) (listing aggravating circumstances that may justify an increase in the
discipline imposed). The only mitigating factor the hearing committee found was
Respondent’s cooperation during the disciplinary proceedings. See id. § 9.32(e).
Furthermore, the hearing committee expressly rejected Respondent’s contention that he
lacked any selfish or dishonest motive with respect to his conduct. See id. § 9.22(b). A
hearing panel of the Disciplinary Board approved the hearing committee’s findings and
conclusions, but the hearing panel recommended to this Court the more severe disciplinary
sanction of suspension from the practice of law for twelve months, with all but three months
deferred.

{23} We agree with the hearing panel that a public censure alone is an insufficient
sanction under the circumstances of this case, particularly in light of Respondent’s
demonstrated pattern of dishonesty. “Suspension is generally appropriate when a lawyer
knows that false statements or documents are being submitted to the court[,] . . . takes no
remedial action, and causes injury or potential injury to a party to the legal proceeding, or
causes an adverse or potentially adverse effect on the legal proceeding.” ABA Standards §
6.12. Suspension also is appropriate when a lawyer causes potential injury to a client by
“engag[ing] in a pattern of neglect,” id. § 4.42(b), “knowingly fail[ing] to perform services,”
id. § 4.42(a), or “engag[ing] in an area of practice in which the lawyer knows he or she is not
competent,” id. § 4.52.

{24} In this case, Respondent’s array of professional misconduct, including the submission
of false statements to the court, adversely affected both the legal proceedings and his clients’
interests. Respondent’s clients in the legal malpractice suit ultimately lost their case on
summary judgment because Respondent failed to retain and disclose an expert witness by
the court-ordered witness disclosure deadline. And in the criminal case, Respondent should
not have accepted the defendant as a client unless Respondent intended to zealously defend
the defendant through the conclusion of the case, regardless of whether the defendant chose
to accept a plea offer.

{25} Accordingly, in our order entered September 19, 2012, we suspended Respondent
from the practice of law for one year, deferred nine months of the suspension, and ordered
that Respondent shall continue on supervised probation for one additional year from
November 28, 2012, under the same terms and conditions set forth in this Court’s November
28, 2011, order. We also ordered that Respondent pay the costs of his disciplinary
proceedings and receive this public censure.

                                               7
CONCLUSION

{26} This Court’s primary concern in cases involving attorney discipline is to ensure that
the Court fulfills its responsibility to protect the public by ensuring that attorneys licensed
to practice law before New Mexico courts comply with our standards of professional
conduct. In re Stewart, 104 N.M. 337, 340, 721 P.2d 405, 408 (1986). Attorneys are
officers of the court, and our system of justice works only if the courts can rely on attorneys
to fulfill their duty of candor to the tribunal. See Woodson v. Phillips Petroleum Co., 102
N.M. 333, 339, 695 P.2d 483, 489 (1985). Respondent must fulfill his obligation to exhibit
the personal honesty and integrity expected of lawyers and to refrain from dishonesty and
other conduct prejudicial to the administration of justice. This public censure shall be
published in the New Mexico Bar Bulletin and the New Mexico Appellate Reports in
accordance with Rule 17-206(D).

{27}   IT IS SO ORDERED.

                                               ____________________________________
                                               PETRA JIMENEZ MAES, Chief Justice

WE CONCUR:

____________________________________
RICHARD C. BOSSON, Justice

____________________________________
EDWARD L. CHÁVEZ, Justice

____________________________________
CHARLES W. DANIELS, Justice

____________________________________
BARBARA J. VIGIL, Justice

Topic Index for In the Matter of Chavez, No. 33,280

ATTORNEYS
Disciplinary Action
Effective Assistance of Counsel
Legal Malpractice
Professional Responsibility

CIVIL PROCEDURE
Expert Witnesses
Summary Judgment

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CRIMINAL PROCEDURE
Plea and Plea Bargaining




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