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In re Neal11/26/2003
brought to the attention of disciplinary counsel. Two counts of the second amended specification of charges involved respondent's failure to respond to requests for information from disciplinary counsel concerning various disciplinary complaints. Respondent's failure to cooperate violated his duties under Rules 16-803(D), which mandates a lawyer to give full cooperation and assistance regarding disciplinary procedures, and 16-804(H) because it reflected adversely on his fitness to practice law. A lawyer who fails to cooperate during a disciplinary proceeding demonstrates a refusal to submit to regulation that is inconsistent with the privilege to practice law described in Rule 17-205.
Another count involved respondent's appearance, while suspended, at a pretrial hearing in Magistrate Court in Roosevelt County for a defendant accused of DUI. Respondent previously had faxed the Magistrate Court, on his attorney letterhead, a waiver of arraignment and entry of plea signed by the client. Respondent then called the court and asked to attend the pretrial conference by phone; that request was denied by the Magistrate Judge. Respondent appeared at the hearing, spoke to the Assistant District Attorney about the way her office handled discovery, and received the State's plea offer. When the case was called, respondent did not sit at counsel table. Instead, he stood before the bench, told the court he did not feel well, and stated that he was not entering his appearance and did not know if he would be. He did not tell the prosecutor or the judge that he was suspended and could not represent the defendant. By addressing the court when his client's case was called, respondent acted as a lawyer. Only licensed lawyers can represent other litigants in court. In re Schmidt, 1997-NMSC-008, 931 P.2d 1386. By telling the court that he was not entering an appearance, he falsely represented that he was a licensed attorney who could enter an appearance. After the hearing, respondent specifically told several people at the Portales Police Department that he was representing the defendant.
That evening, when respondent arrived back in Albuquerque, he returned a call directing him to appear for a drug test. He told the Lawyer's Assistance Committee representative charged with calling for random tests that he had been in Farmington all day. That somewhat gratuitous lie suggests that respondent knew he was acting improperly and that he was willing to try to conceal his misconduct by means of additional lies.
Respondent's actions in the Portales arraignment violated Rule 16-303(A), making a false statement of material fact to a tribunal; Rule 16-401(A), making false statements of material fact; Rule 16-505(A), engaging in the unauthorized practice of law while suspended; Rule 16-804(C), engaging in conduct involving dishonesty, fraud, deceit or misrepresentation; Rule 16-804(D), engaging in conduct prejudicial to the administration of justice; and Rule 16-804(H), engaging in conduct reflecting adversely on his fitness to practice law.
The remaining three counts of the charges addressed respondent's conduct in various Metropolitan Court proceedings in Albuquerque. The first of these counts addressed respondent's failure to arrange for either a continuance or coverage by another lawyer when he had two cases set for trial at the same time. Respondent represented a client on DUI charges set for a non-jury trial on March 20, 2001. At the same time, respondent was scheduled to defend a DUI charge against another client in a jury trial before a different Metropolitan Court judge. Both of respondent's clients were present for trial.
Respondent first went to the non-jury trial courtro
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