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In re Neal11/26/2003
employed by counsel. Failing to appear for trial because of a scheduling conflict not addressed in advance is sanctionable. Not only does such conduct interfere with the court's schedule, but also it is an unreasonable imposition on all participants in the legal process.
In Beit v. Probate and Family Court Dept., 385 Mass. 854, 434 N.E. 2d 642 (1982), the court expressed its view that it was proper for costs to be assessed against an attorney who failed to appear for trial. The court stated:
"The duty of an attorney punctually to present himself in court and diligently to continue with a trial he has undertaken and not to delay it for any personal matter reasonably within his control is clear." (Citation omitted.) "Counsel for litigants, no matter how `important' their cases are, cannot themselves decide when they wish to appear or when they will file those papers required in a law suit. Chaos would result . . . . There must be . . . some respect shown to the convenience and rights of other counsel, litigants, and the court itself." (Citation omitted.) Id. at p. 645.
Respondent's conduct inconvenienced other counsel, litigants (including his own clients), and the court itself. Although the cases cited involved the assessment of costs and a finding of contempt by the trial judge, it is equally proper to impose disciplinary sanctions for the obstructive conduct in which this respondent engaged in the Bernalillo County Metropolitan Court.
Respondent violated Rule 16-101 by failing to provide competent representation to the client in whose trial he refused to participate, Rule 16-103 by failing to provide prompt and diligent representation to his clients, Rule 16-107(B) by engaging in a conflict of interest when respondent's representation of his client was limited by his interest in resisting the Metropolitan Court's efforts to hear the cases set for trial, Rule 16-302 by failing to make reasonable efforts to expedite litigation consistent with the interests of the client, Rule 16-303(A) by making false statements of material fact to a court, Rule 16-305(C) by engaging in conduct intended to disrupt, and which, in fact, disrupted a tribunal, Rule 16-404 by using means in the representation of a client that had no substantial purpose other than to embarrass, delay or burden a third person, Rule 16-801(A) by knowingly making a false statement of material fact in connection with a disciplinary proceeding, Rule 16-804(C) by engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation, Rule 16-804(D) by engaging in conduct prejudicial to the administration of justice, and Rule 16-804(H) by engaging in conduct reflecting adversely on his fitness to practice law.
Respondent was represented by counsel in this disciplinary case. When the merits hearing convened on November 12, 2002, neither respondent nor his attorney were present. The hearing committee located respondent's counsel, who stated he was unsure whether he told respondent that a second amended specification of charges had been filed. Pursuant to Rule 17-310(C) the charges had been deemed admitted after no answer was filed and no response to the motion to deem charges admitted was filed. The hearing committee succeeded in contacting respondent by phone during the hearing. Respondent said he was unsure whether he had seen the second amended charges. He advised the committee that he was about to be deployed on active duty in the military.
The chair of the hearing committee advised respondent and his counsel on the record that the hearing would be reconvened on December 11, 2002, and, that they could file whatever they thought was appropriate prior to the hearing. The cha
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