In Re Dawson

8 P.3d 856, 129 N.M. 369
CourtNew Mexico Supreme Court
DecidedAugust 21, 2000
Docket26,466
StatusPublished
Cited by7 cases

This text of 8 P.3d 856 (In Re Dawson) is published on Counsel Stack Legal Research, covering New Mexico Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Dawson, 8 P.3d 856, 129 N.M. 369 (N.M. 2000).

Opinion

OPINION

PER CURIAM.

{1} This matter came before the Court upon the recommendation of the disciplinary board to accept a conditional agreement not to contest and consent to discipline tendered by the respondent, Juan A. Dawson, pursuant to Rule 17-211 NMRA 2000 of the Rules Governing Discipline. Under that agreement, respondent declared his intention not to contest allegations that he violated Rules 16-101, 16-103, 16-104(A) and (B), 16-115(A) and (B), 16-116(D), 16-302, 16-304(C), 16-503, and 16-804(D) and (H) NMRA 2000 of the Rules of Professional Conduct. We adopt the disciplinary board’s recommendation and impose the discipline provided for in the agreement.

{2} Respondent was admitted to practice law in New Mexico in January 1997. He was suspended from the practice of law by this Court in April 2000 for nonpayment of bar dues. See In re Suspension of Active and Inactive Members of the State Bar of New Mexico for Nonpayment of 2000 Annual Bar License Fee and for Noncompliance with Rule 17-203 NMRA Vol. 39, No. 17 SBB 11 (April 27, 2000). Before he was suspended, respondent was charged with violating the Rules of Professional Conduct with regard to his representation of three clients.

{3} On or about July 7, 1999, Ysidro Florez, Jr., filed a complaint with the disciplinary board alleging that respondent engaged in misconduct while representing him in a criminal matter. On or about July 22, 1999, Hector Martinez filed a similar complaint against respondent with the disciplinary board. Mr. Florez and Mr. Martinez each paid respondent to defend them in jury trials in district court. 1 Each individual also paid respondent at least $1,000.00 to appeal Ms conviction after the jury trial, according to receipts produced by respondent.

{4} In Mr. Martinez’s case, the New Mexico Court of Appeals filed a memorandum opinion affirming the conviction. The opinion noted that the memorandum in opposition filed by respondent on Mr. Martinez’s behalf did not provide the court with any additional facts or law to support his position, and directed respondent to follow the appellate rules more closely in the future. Respondent terminated his representation of Mr. Martinez after receiving the Court of Appeals opmion.

{5} In Mr. Florez’s case, respondent filed a docketing statement that was identical to the one he previously filed on behalf of Mr. Martinez, except for differences m stating the facts of each case. The Court of Appeals subsequently issued an order to show cause why respondent should not be sanctioned for Ms failure to file the record proper in Mr. Florez’s appeal. Respondent answered the order to show cause by acknowledgmg that he did not comply with Rule 12-208 NMRA 1999 and that he could not provide evidence that the docketmg statement for Mr. Florez’s appeal was mailed to the district court clerk. The Court of Appeals then issued a calendar notice rejecting respondent’s docketing statement and ordering respondent to file an amended docketmg statement that complied with Rule 12-208(0(4) NMRA 1999 withm twenty (20) days. 2

{6} After this twenty-day period expired, a second order to show cause was issued in Mr. Florez’s case allegmg that respondent had not filed an amended docketing statement with the Court of Appeals as ordered, and that he had not filed any pleading requesting additional time to do so. Respondent subsequently filed his amended docketing statement with the Court of Appeals. After reviewing the amended docketmg statement, the Court of Appeals issued a second calendar notice admonishing respondent for Ms failure to comply with the first calendar notice and findmg that the only differences between respondent’s original docketmg statement and his amended docketing statement were that: (1) the word “ease” was changed to “issues” m the title of one section, and (2) one new sentence was added to that section regardmg preservation.

{7} Shortly after the Court of Appeals’ second calendar notice was filed, respondent sent a letter to Mr. Florez’s spouse informing her that Mr. Florez’s appeal had been denied by the Court of Appeals and that additional funds were required to continue respondent’s representation in the appeal. Respondent subsequently withdrew as Mr. Florez’s attorney and was replaced by an attorney from the public defender’s appellate division.

{8} After receiving Mr. Florez’s complamt, disciplinary counsel made inquiries to determine the basis for respondent’s claim that additional funds were required to eontinue his representation of Mr. Florez m the appeal after the Court of Appeals issued its second calendar notice. In response to these inquiries, respondent produced copies of some receipts but stated that he did not have a written fee agreement or other documentation indicating the basis for his claim that additional fees were needed after the filing of the second calendar notice. In response to further mquiries about the status of his trust account records, respondent produced some bank statements but was unable to identify any additional trust account records required by Rules 16-115 and 17-204 NMRA 2000 that he had maintained. Respondent further explained that much of his practice involved erimmal work for which he requested and was paid a flat fee, and that these flat fee payments were generally “placed mto cash flow” and not deposited into Ms trust account.

{9} On or about September 20, 1999, the office of disciplinary counsel received another complamt agamst respondent from Stanley Goddard, II, and Sandra Hinze. Them complaint alleged that respondent had failed to refund a $500.00 payment that Ms. Hinze had sent to respondent m November 1998 in order to commence representation of Mr. Goddard in a criminal matter. In December 1998, Mr. Goddard was released from detention following a court appearance at which respondent did not appear or assist in any way. Because respondent had not represented Mr. Goddard as they had contemplated when the $500.00 advance payment was made, Mr. Goddard and Ms. Hinze asked respondent to give them a full refund and return Mr. Goddard’s file in December 1998. Respondent claims that he agreed to refund the $500.00, but failed to follow through in part because he closed his office on December 30, 1998, and was out of the country for several weeks thereafter. He did not refund the $500.00 until after Mr. Goddard and Ms. Hinze filed their complamt with the disciplinary board more than eight months later. He later admitted that he did not return the file.

{10} Rule 16-116(D) requires a lawyer to refund any advance payment of fee that has not been earned upon termination of representation. Rule 16-105(A) NMRA 2000 requires a lawyer’s fee to be reasonable. This Court has stated repeatedly that “[a]ny fee is excessive when absolutely no services are provided.” In re Jones, 119 N.M. 229, 230, 889 P.2d 837, 838 (1995) (citing In re Martinez, 108 N.M. 252, 771 P.2d 185 (1989)); see also In re Cherryhomes, 115 N.M. 734, 734-35, 858 P.2d 401, 401-02 (1993) (similar). In addition, the rules prohibitmg nonrefundable unearned fees have been the subject of two disciplinary notes, see Disciplinary Note, Vol.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

In Re Behles
2019 NMSC 016 (New Mexico Supreme Court, 2019)
Hammack v. N.M. Taxation & Revenue Dep't
New Mexico Court of Appeals, 2017
Disciplinary Board of the Supreme Court v. Hann
2012 ND 160 (North Dakota Supreme Court, 2012)
State, ex rel. Roseland v. Herauf
2012 ND 151 (North Dakota Supreme Court, 2012)
In Re Mance
980 A.2d 1196 (District of Columbia Court of Appeals, 2009)
In the Matter of Yalkut
2008 NMSC 009 (New Mexico Supreme Court, 2008)
In Re O'Brien
2001 NMSC 025 (New Mexico Supreme Court, 2001)

Cite This Page — Counsel Stack

Bluebook (online)
8 P.3d 856, 129 N.M. 369, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-dawson-nm-2000.