In Re: Suarez-Jimenez v.

• Court: Court of Appeals for the First Circuit
• Decided: December 20, 2016
• Docket: 15-8022U
• Status: Unpublished

Opinion

Not for Publication in West's Federal Reporter

United States Court of Appeals For the First Circuit

No. 15‒8022

IN RE MANUEL R. SUÁREZ-JIMÉNEZ,

Respondent.

ON ORDER TO SHOW CAUSE WHY RECIPROCAL DISCIPLINE SHOULD NOT BE IMPOSED

Before

Torruella, Thompson, and Kayatta, Circuit Judges.

Manuel R. Suárez-Jiménez pro se.

December 20, 2016 Per Curiam. The Supreme Court of Puerto Rico

indefinitely suspended respondent Manuel R. Suárez-Jiménez

("Suárez") from the practice of law, prompting this court to issue

an order to show cause why it should not impose reciprocal

discipline. Having carefully considered the arguments Suárez

advanced in his brief and during his hearing before our

disciplinary panel, we now order that Suárez be indefinitely

suspended from practice before this court.

On December 17, 2014, the Supreme Court of Puerto Rico

ordered the indefinite suspension of Suárez based on his violations

of the Puerto Rico Professional Ethics Code. In re Suárez Jiménez,

2014 TSPR 143 (P.R. 2014) (per curiam). Those violations occurred

in the course of Suárez's representation of the plaintiffs in a

lawsuit filed in the United States District Court for the District

of Puerto Rico, captioned Rivera-Carmona v. American Airlines, No.

09-CV-1062 (D.P.R. 2009). After the plaintiffs initiated that

lawsuit, the defendant achieved a transfer of venue to the United

States District Court for the Southern District of Florida, Miami

Division. The transfer created an immediate problem for Suárez--he

was not licensed in Florida, and not otherwise permitted to appear

by himself in that United States District Court. Rather than doing

what any reasonable lawyer would do in such a situation (notify

the court that some time was needed for his clients to secure local

Florida counsel), Suárez informed the court and his clients that

- 2 - he intended to file a motion for remand, which he likely could not

do on his own. Worse yet, he then did nothing to preserve his

clients' lawsuit, which the district court in Florida eventually

dismissed without prejudice in April of 2010.

Nine months later, one of the plaintiffs swore a

grievance before the Supreme Court of Puerto Rico. According to

the grievance, Suárez told the plaintiffs he would "do everything

possible to remand the case again to Puerto Rico since he was not

knowledgeable of Miami laws," but then informed the plaintiffs

that "the case was dismissed because he was unable to appear in

the state of Florida." The grievance stated that the plaintiffs

did not know the status of their case--including whether Suárez

appealed the dismissal as promised--due to "poor communication" by

Suárez. It requested a copy of the case file and concluded, "We

want to know if he is following up on the case because he does not

answer calls nor emails."

The grievance prompted an investigation by the Office of

the Solicitor General of Puerto Rico, which found that the evidence

collected in its investigation substantiated the grievance. That

office issued a report to the Supreme Court of Puerto Rico on

March 9, 2012, stating that Suárez may have violated four ethical

canons: the duty to render competent service and diligent

representation (Canon 18); the duties upon withdrawal from

representation (Canon 20); the duty of candor toward clients and

- 3 - colleagues (Canon 35); and the duty to uphold the dignity and honor

of the legal profession (Canon 38). The Supreme Court of Puerto

Rico, after evaluating the report, ordered the Solicitor General

to present a complaint with formal charges for those violations.

That court then appointed a Special Commissioner to review the

materials and make a recommendation on the charges.

In 2014, the Special Commissioner issued a report

concluding that clear and convincing evidence supported all four

charges in the complaint. The report recommended indefinite

suspension. After conducting a searching review of the report and

recommendation, the Supreme Court of Puerto Rico found violations

of the four canons outlined above. With respect to Canons 18 and

20, the court found that Suárez's inaction post-transfer--and

resulting violations of local rules and court orders--caused

dismissal of the plaintiffs' lawsuit. It rejected his arguments

that the retainer agreement limiting his services to litigation in

the District of Puerto Rico, or his inability to receive electronic

notices in the Southern District of Florida, excused his

inaction--particularly because he never informed the court or his

opposing counsel that he was unable to practice in the latter forum

and conducted himself in a manner suggesting he was able to

practice there. The court also rejected his argument that, because

the dismissal was without prejudice, he did not violate his ethical

duties. With respect to Canon 35, the court found that Suárez's

- 4 - inconsistent statements and actions confused his clients, opposing

counsel, and the court regarding his ability to practice in the

Southern District of Florida and his efforts to transfer the case

back to the District of Puerto Rico. And finally, with respect to

Canon 38, the court found that the totality of Suárez's conduct

did not "exalt the honor nor the dignity of the profession" due to

"serious deviations from the ethical rules." The court imposed an

immediate and indefinite suspension, and denied two subsequent

motions by Suárez for reconsideration.

Upon receiving the Supreme Court's order, this court

initiated disciplinary proceedings through an order to show cause.

The United States District Court for the District of Puerto Rico

did the same and imposed reciprocal discipline by order dated

October 8, 2015. It agreed with the findings of the Supreme Court

and further held that Suárez violated the rules of professional

conduct applicable to attorneys admitted to practice in the

district court. An appeal of that order is not presently before

this panel. Instead, our inquiry is limited to the appropriateness

of imposing reciprocal discipline in this court.

"Our standards for imposing reciprocal discipline are

clear and are set forth in In re Williams, 398 F.3d 116 (1st Cir.

2005) (per curiam)." In re Oliveras López De Victoria, 561 F.3d

1, 3 (1st Cir. 2009). We impose substantially similar discipline

to that imposed in the state court unless the respondent persuades

- 5 - us

1. that the procedure used by the other court was so lacking in notice or opportunity to be heard as to constitute a deprivation of due process; or 2. that there was such an infirmity of proof establishing the misconduct as to give rise to the clear conviction that this Court could not, consistent with its duty, accept as final the conclusion on that subject; or 3. that the imposition of substantially similar discipline by this Court would result in grave injustice; or 4. that the misconduct established is deemed by the Court to warrant different discipline.

In re Williams, 398 F.3d at 116 (quoting 1st Cir. R. Att'y Discip.

Enf. (Discip. R.) II.C)); see also Fed. R. App. P. 46(b)(1)(A).

The respondent bears the burden to demonstrate "by clear and

convincing evidence . . . that the imposition of substantially

similar discipline is unwarranted." In re Barach, 540 F.3d 82, 85

(1st Cir. 2008). "Given the limited nature of our inquiry, the

norm will be for this court to impose discipline which is

substantially similar to that imposed by the state court." In re

Williams, 398 F.3d at 119 (citing In re Hoare, 155 F.3d 937, 940

(8th Cir. 1998)).

In his lengthy response to the show cause order, Suárez

appears to argue that all four grounds for declining to impose

reciprocal discipline apply here. We address each in turn. In

doing so, we "treat the state court's factual findings with a high

degree of respect," In re Barach, 540 F.3d at 84 (citing In re

Williams, 398 F.3d at 118), even as we "fully consider the state

- 6 - record" in determining whether reciprocal discipline is warranted,

id. (citing Selling v. Radford, 243 U.S. 46, 51 (1917)).

First, we see no defect so severe as to constitute a

deprivation of due process in the notice and opportunity to be

heard that Suárez received before the Supreme Court of Puerto Rico.

See In re Williams, 398 F.3d at 119‒20; Discip. R. II.C(1). Many

of Suárez's due process arguments exceed the scope of protections

afforded to the respondent in an attorney disciplinary proceeding.

See In re Cordova-Gonzalez, 996 F.2d 1334, 1336 (1st Cir. 1993)

(noting that the due process rights of the respondent "do not

extend so far as to guarantee the full panoply of rights afforded

to an accused in a criminal case" (quoting Razatos v. Colo. Supreme

Court, 746 F.2d 1429, 1435 (10th Cir. 1984))). Furthermore, his

argument that he received insufficient notice of the charges

against him relies upon an overly narrow reading of the grievance,

and an unduly broad application of In re Ruffalo, where the United

States Supreme Court found a violation of the respondent's due

process rights because the respondent did not receive notice of a

new charge, nowhere referenced in the formal complaint, until after

the investigation into that complaint concluded. See 390 U.S.

544, 549‒52 (1968). Unlike Ruffalo, Suárez received a grievance

that alerted him to the misconduct at issue, and a formal complaint

that charged each of the four violations later found by the Supreme

Court of Puerto Rico.

- 7 - Second, there is no infirmity of proof that instills in

us a clear conviction that we cannot accept the Supreme Court of

Puerto Rico's conclusion as final. See In re Williams, 398 F.3d

at 119; Discip. R. II.C(2). Suárez's contention that there was

"no evidence whatsoever to support any of the four charges"

(emphasis omitted) is specious. He attempts to discredit the

grieving party based upon alleged inconsistencies among his

grievance, another plaintiff's statements suggesting limited

awareness about the status of the case, and cellular phone records

indicating minimal contact between the grieving party and Suárez.

His attempts fall short, however, because even the evidence he

marshals evinces confusion among the plaintiffs about the status

of the case--confusion that the Supreme Court of Puerto Rico found

Suárez sowed through infrequent communications and inconsistent

messages. Additionally, evidence of four brief phone calls between

the grieving party and Suárez, none lasting more than five minutes,

and altogether totaling only sixteen minutes, hardly defeats the

grievance's assertion of poor communication--particularly where

the phone calls came approximately eight months after dismissal of

the plaintiffs' action.

Suárez also disputes that he knowingly or recklessly

deceived his clients because promises he made to them were sincere

when made, becoming untruthful only after legal research suggested

there were no grounds to do what he promised. Our task is not to

- 8 - consider these defenses de novo. Rather, we ask only whether the

excuses and justifications that Suárez provides produce a clear

conviction that we could not accept as final the Supreme Court of

Puerto Rico's conclusions. In context, it is not unreasonable to

think that, if Suárez's plans were tentative, he could and should

have signaled that. And if he discovered that legal rules or

ethical obligations prevented him from doing what he committed, he

promptly should have told those involved.

Third, we reject out of hand Suárez's claim that the

imposition of reciprocal discipline would occasion grave

injustice. See In re Williams, 398 F.3d at 119; Discip. R.

II.C(3). This claim was not developed by Suárez and, in any event,

lacks merit.

Finally, we do not agree that Suárez's misconduct merits

different discipline in this court. The suspension is indefinite,

not permanent, and we see nothing preventing Suárez from returning

to the Supreme Court of Puerto Rico to seek a lifting of the

suspension.

We therefore impose upon Suárez an indefinite suspension

from the bar of this court. If and when the Supreme Court of

Puerto Rico reinstates Suárez to the practice of law or otherwise

modifies his indefinite suspension, Suárez may seek reinstatement

in this court.

So ordered.

- 9 -