July 31, 2010
Bar Admission Not An "Empty Formality"
The New Mexico Supreme Court imposed a deferred one-year suspension and public reprimand of an attorney who engaged in misconduct involving misrepresentations and unauthorized practice. The misrepresentations involved an estate.
The accused was on inactive status in Virginia and had just passed the New Mexico bar examination. The court rejected a kitchen-sink attack on the disciplinary system and, in particular, disciplinary counsel. Among other things, the court rejected claims of selective prosecution, vindictive prosecution, prosecutorial misconduct and improper ex parte communications.
The court found that the attorney's attempted interference with two entities that were part of the estate also violated unauthorized practice rules:
We recognize that by the time he met with Harbour [the personal representative], Respondent had apparently just learned that his Virginia license had been reactivated and that he had passed the New Mexico bar exam. However, Respondent’s reliance on his newly-reactivated Virginia license coupled with his expectation that he would soon be admitted to the New Mexico bar strains the exceptions in Rule 16-505(E) to their breaking point. Moving from inactive to active status to practice law is not simply an empty formality, nor is the initial admission to practice law. If those formalities are to have any meaning, a lawyer must refrain from practicing law until he or she is clearly authorized to do so. We therefore conclude that substantial evidence supported the hearing committee’s conclusion that Respondent engaged in the unauthorized practice of law.
The court, however, rejected disciplinary counsel's call for disbarment:
In sum, because there are factors both in aggravation and in mitigation of Respondent’s offenses, and because Respondent’s offenses otherwise warrant a reprimand and suspension under the ABA Standards cited above, a one-year suspension and public reprimand by means of this Opinion are the appropriate sanction for Respondent’s misconduct. We note, however, that the misconduct at issue in this case took place shortly before and after Respondent was admitted to practice law in this state. Accordingly, we deem it appropriate to exercise our discretion to defer the period of suspension on the condition that Respondent engage in no further ethical misconduct in violation of our Rules of Professional Conduct and Rules Governing Discipline. We recognize that disciplinary counsel continues to believe that disbarment is the appropriate sanction in this case. However, without minimizing the seriousness of Respondent’s misconduct, we cannot agree that disbarment would be an appropriate response at this time.
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