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IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: 2013-NMSC-008 

Filing Date: March 14, 2013

Docket No. 33,280

 

IN THE MATTER OF

GENE N. CHAVEZ, ESQUIRE

AN ATTORNEY SUSPENDED FROM

THE PRACTICE OF LAW BEFORE

THE COURTS OF THE STATE OF

NEW MEXICO

Jane Gagne, Assistant Disciplinary Counsel

Albuquerque, NM

for Disciplinary Board

Ray Twohig

Albuquerque, NM

for Respondent

OPINION

MAES, Chief Justice

{1} This public censure of attorney Gene N. Chavez (Respondent) follows disciplinary

proceedings conducted under the Rules Governing Discipline, Rules 17-101 to -316 NMRA,

in which the Disciplinary Board found that Respondent violated multiple Rules of

Professional Conduct. The disciplinary proceedings arose from Respondent’s representation

of clients in two unrelated matters, a legal malpractice case and a criminal case. On March

15, 2012, a hearing committee of the Disciplinary Board entered findings of fact and

conclusions of law, which the Court has adopted. Respondent’s misconduct included

multiple acts of dishonesty, the failure to represent his clients with competence and

diligence, and the placement of an unreasonable limitation on the scope of his legal

representation. On September 19, 2012, we concluded that Respondent’s ethical violations

warranted suspension, and we ordered that Respondent be suspended from the practice of

law, pay the costs of his disciplinary proceedings, and receive this public censure.

LEGAL MALPRACTICE LAWSUIT
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A. Background

{2} One of the two charges in this case arose out of Respondent’s representation of two

plaintiffs in a legal malpractice lawsuit against the plaintiffs’ former attorney. The case was

the first legal malpractice lawsuit that Respondent had undertaken since Respondent began

operating his own private practice in about 2004. 

{3} In their complaint for legal malpractice, the plaintiffs alleged that their former

attorney had breached her duties to them in five separate ways. The plaintiffs needed expert

testimony to prove most of the alleged breaches. See, e.g., Rancho del Villacito

Condominiums, Inc. v. Weisfeld, 121 N.M. 52, 55-56, 908 P.2d 745, 748-49 (1995) (stating

that expert testimony is usually needed to prove legal malpractice). On July 8, 2010,

Respondent wrote to the defendant, stating that he had “spoken to many personal injury

attorneys that would be willing to serve as an expert witness that your actions were below

the standard of care.” The Disciplinary Board found that Respondent’s statement was not

credible because Respondent never retained or named any expert witness by the January 11,

2011, court-ordered deadline for disclosing witnesses. 

{4} On February 14, 2011, the defendant moved for summary judgment on the ground

that Respondent had not named an expert witness to testify in support of his clients’

malpractice claims. Respondent filed a response in which he failed to set forth any argument

as to why an expert witness was not required to prove the defendant’s negligence. Instead,

Respondent attached his own affidavit to the response, purportedly as a Rule 1-056(F)

NMRA affidavit. See Rule 1-056(F) (“Should it appear from the affidavits of a party

opposing the motion that he cannot for reasons stated present by affidavit facts essential to

justify his position, the court may refuse the application for judgment or may order a

continuance to permit affidavits to be obtained or depositions to be taken or discovery to be

had or may make such other order as is just.”). In his affidavit, Respondent represented that

the plaintiffs had “been unable to obtain a statement, affidavit or letter from such expert

witnesses that would be necessary to rebut the allegations raised” in the motion for summary

judgment. 

{5} Additionally, Respondent asserted in his affidavit that there was a pending attorney

disciplinary complaint against the defendant and stated that his clients might need to

supplement their witness list, depending on the outcome of the complaint. On March 10,

2011, opposing counsel wrote to Respondent, informing him that there was no pending

disciplinary complaint against the defendant and asking Respondent to retract his statement.

Respondent ignored the letter and failed to retract the statement or inform the court that the

statement was incorrect. In a subsequent telephone conversation, opposing counsel again

urged Respondent to withdraw the false statement. Rather than agreeing to correct the false

statement, Respondent replied that “it would be easy” to file a disciplinary complaint against

the defendant.

{6} On April 13, 2011, the district court held a hearing on the motion for summary
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judgment. Respondent did not attend the hearing but instead gave this task to his newly

hired associate, who attended the hearing by telephone. At the hearing, Respondent’s

associate neither provided argument regarding why an expert witness would not be necessary

in the case nor corrected the false statement that Respondent had submitted to the court

regarding a disciplinary complaint. The court granted the defendant’s motion for summary

judgment. 

{7} On October 27, 2011, Respondent moved the court to set aside the judgment. See

Rule 1-060(B)(2) (providing that “the court may relieve a party . . . from a final judgment”

if there is “newly discovered evidence which by due diligence could not have been

discovered in time to move for a new trial under Rule 1-059 NMRA”). In the motion,

Respondent asserted that the defendant, in the course of representing Respondent’s clients,

had failed to release a hospital lien for $9,501.18. Respondent mailed a copy of the motion

to opposing counsel before Respondent filed the motion with the court. Opposing counsel

responded with information demonstrating that the lien had, in fact, been released. Several

weeks later, Respondent filed the motion in the district court without correcting the

misrepresentation regarding the hospital lien, even though Respondent knew the lien had

been released.

B. Discussion

{8} Respondent’s representation of his clients in the legal malpractice suit exhibits a

pattern of knowing misrepresentations to the court. First, Respondent asserted in his Rule

1-056(F) affidavit that he had been unable to obtain a statement, affidavit, or letter from an

expert witness, when in fact it appears that Respondent failed to ever consult with any

potential expert witnesses. Second, Respondent stated falsely in his affidavit that there was

a pending attorney disciplinary complaint against the defendant. At his disciplinary hearing,

Respondent testified that he relied on conversations with an employee and his clients in

concluding that a disciplinary complaint had been filed. But, assuming the pendency of a

disciplinary complaint had been relevant to the motion for summary judgment, which it was

not, Respondent would have had a duty to exercise independent judgment and determine

whether there was in fact a pending disciplinary complaint. Cf. In re Estrada, 2006-NMSC047, ¶¶ 23, 27, 140 N.M. 492, 143 P.3d 731 (lawyer’s reliance on representations of others

without exercise of independent judgment violated Rules of Professional Conduct).

Moreover, Respondent knew by March 10, 2011, that his statement in the affidavit was false

yet failed to correct the false statement. Finally, Respondent filed his motion to set aside the

judgment after learning that the motion contained a false statement regarding the hospital

lien. 

{9} By filing court documents that contained false statements of fact, Respondent

violated Rule 16-301 NMRA, which prohibits a lawyer from asserting an issue in a

proceeding when there is no basis in law and fact for doing so, and Rule 16-303(A) NMRA,

which prohibits a lawyer from “mak[ing] a false statement of fact to a tribunal or fail[ing]

to correct a false statement previously made to a tribunal.” 
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{10} Respondent’s assertion regarding the nonexistent disciplinary complaint also violated

Rule 16-404(A) NMRA, which provides that “[i]n representing a client, a lawyer shall not

use means that have no substantial purpose other than to embarrass, delay or burden a third

person[.]” Whether a disciplinary complaint was pending against the defendant was

irrelevant to whether Respondent’s clients could prove their claims without expert testimony,

and Respondent’s inclusion of this misinformation served no purpose other than to

embarrass or burden the defendant. 

{11} Additionally, Respondent’s failure to name an expert by the court-ordered witness

disclosure deadline fell below the standards of competence and diligence required of

attorneys. See Rule 16-101 NMRA (“Competent representation requires the legal

knowledge, skill, thoroughness and preparation reasonably necessary for the

representation.”); Rule 16-103 NMRA (requiring a lawyer to “act with reasonable diligence

and promptness in representing a client”). During his disciplinary hearing, Respondent

testified that he believed expert testimony would not be necessary to prove legal malpractice

in his clients’ case. The hearing committee concluded that Respondent’s statement in this

regard was not credible, and that in any event, Respondent was wrong to conclude that an

expert was unnecessary. Because Respondent lacked experience in the field of legal

malpractice, Respondent should have either devoted adequate time and study to the case or

associated himself with an experienced, competent legal malpractice attorney. Cf. In re

Hanratty, 110 N.M. 354, 356, 796 P.2d 247, 249 (1990) (representing clients in bankruptcy

matter without being competent in that area of law or associating with competent bankruptcy

counsel violated Rule 16-101 and warranted suspension). 

CRIMINAL DEFENSE CASE

A. Background Facts

{12} The second disciplinary charge in this case arose out of Respondent’s representation

of a criminal defendant who had been accused of sexual misconduct involving his minor

niece. The defendant was charged with criminal sexual penetration along with four other

charges, and he faced a total possible sentence of almost fifty-two years of incarceration.

{13} On September 2, 2010, the defendant’s wife retained Respondent to represent the

defendant and signed a legal services contract with Respondent. In the contract, Respondent

agreed to represent the defendant for the limited purpose of negotiating a plea agreement for

a flat fee of $2,500. During the course of the criminal case against his client, Respondent

conducted no discovery and did no witness interviews. Respondent’s limited interactions

with his client included a total of only four or five encounters, including conversations by

telephone and in-person meetings at the courthouse.

{14} The court held a plea hearing in the defendant’s case on March 3, 2011. Respondent

did not attend the hearing but sent his newly hired associate to represent the defendant.

Although the defendant was expected to enter into a plea agreement at the hearing, the
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defendant ultimately rejected the State’s offer. 

{15} On March 15, 2011, six weeks before the defendant’s trial was scheduled to begin,

Respondent moved the court for permission to withdraw from the representation, without

first discussing his desire to withdraw with his client. In the motion, Respondent cited a

breakdown of the attorney-client relationship as the reason for the withdrawal. But in truth,

Respondent sought to withdraw because Respondent had accepted a flat fee of only $2,500

for the sole purpose of negotiating a plea agreement. 

{16} On March 31, 2011, the court held a hearing on Respondent’s motion to withdraw.

Respondent did not attend the hearing but again sent his associate to appear on his behalf.

The court denied the motion. After the court denied the motion to withdraw, Respondent

informed the prosecutor that he would “do nothing to prepare for trial.” At his disciplinary

hearing, Respondent claimed that he wrote this to the prosecutor to “set up a claim for

ineffective assistance of counsel.”

B. Discussion 

{17} Respondent violated multiple Rules of Professional Conduct during the course of

representing the defendant. At the outset of the representation, Respondent violated Rule

16-102(C) by placing an unreasonable limitation on the scope of representation. The Rules

of Professional Conduct permit a lawyer to “limit the scope of representation if the limitation

is reasonable under the circumstances and the client gives informed consent.” Rule 16-

102(C). But a lawyer cannot reasonably agree to represent a criminal defendant for the sole

purpose of negotiating a plea because a lawyer must always “abide by a client’s decision .

. . as to a plea to be entered.” Rule 16-102(A) NMRA; see State v. Jones, 923 P.2d 560, 566

(Mont. 1996) (allowing a lawyer to withdraw from representing a client because the client

rejected a plea agreement would run “directly afoul of Rule 1.2(a)” of the Model Rules of

Professional Conduct); see also McConnell v. State, 212 P.3d 307, 314 (Nev. 2009)

(“Although counsel certainly owes a duty to advise his client whether to plead guilty,

counsel does not have the authority to override a defendant’s decision to plead guilty. That

decision is reserved to the client.”). Thus, when Respondent entered into a contract for

limited legal services for a flat fee with the defendant’s spouse, Respondent should have

been cognizant that neither the spouse nor Respondent could decide for the defendant

whether to accept the terms of any plea agreement offered by the prosecution. A lawyer

should not establish a fee arrangement that may put the client at a disadvantage if

circumstances change during the course of the representation. See Rules 16-101 & -102(C).

{18} Additionally, after accepting the defendant’s case, Respondent breached his duty to

provide the defendant with competent, diligent representation. See Rules 16-101 & -103.

Despite the expectation that the defendant would enter into a plea agreement, Respondent

had the duty to prepare for trial, including conducting reasonable discovery and investigation

into the case. See id. And once the defendant rejected the plea offer, Respondent should

have diligently continued his trial preparation rather than attempting to abandon his client.
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See id.

{19} Finally, Respondent violated Rule 16-303(A) when he lied to the court about the

reason he sought to withdraw from the representation. Rather than admitting that he had

accepted a fee of only $2,500 for the case, Respondent asserted that there had been a

breakdown of the attorney-client relationship. As in the malpractice lawsuit, Respondent’s

dishonesty in the criminal case demonstrates his willingness to compromise the truth when

convenient to do so. 

DISCIPLINE

A. Respondent’s Prior Disciplinary Case

{20} Before explaining the discipline that is warranted under the circumstances of this

case, we begin by noting that this is the second time Respondent has come before the Court

on disciplinary charges. In 2011, Respondent was charged with violating numerous Rules

of Professional Conduct, including a charge that he violated Rule 16-101 by failing to timely

respond to a motion for summary judgment and a charge that he violated Rule 16-303 by

making a false statement in a motion to withdraw. In response to the disciplinary charges,

Respondent entered into a consent agreement on August 23, 2011, in which he agreed not

to contest that he had violated Rules 16-101 through -105, -107, -115, -116, -300, -302

through -304, -404, -503, and -804 NMRA. 

{21} The vast majority of the ethical violations in Respondent’s first disciplinary case

arose from Respondent’s mismanagement of his high volume law practice. Based on

Respondent’s conduct and the terms of the consent agreement, on November 28, 2011, we

suspended Respondent from the practice of law for a period of six months, but we deferred

the suspension for one year upon certain terms and conditions. To address Respondent’s

mismanagement of his private practice, we placed Respondent on supervised probation

under Rule 17-206(B) for a period of one year and appointed an attorney to supervise

Respondent. Under the terms of supervised probation, we required Respondent to (1) meet

regularly with his supervising attorney; (2) accept instruction from his supervising attorney

in the areas of law office management, caseload management, and the development of a

system for prompt communication with clients and opposing counsel; (3) comply with the

Rules of Professional Conduct and the Rules Governing Discipline; and (4) attend

continuing legal education courses on law office practice management. Respondent’s initial

term of supervised probation would have expired on November 28, 2012, if the Court had

not extended Respondent’s probation as a consequence of the case now before us.

B. Respondent’s Conduct Warrants Suspension.

{22} We now turn to the appropriate sanction to impose in this case, guided by the ABA

Standards for Imposing Lawyer Sanctions (2005) (ABA Standards). See In re Convisser,

2010-NMSC-037, ¶ 42, 148 N.M. 732, 242 P.3d 299. The hearing committee recommended
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that the Court publicly censure Respondent under Rule 17-206(A) of the Rules Governing

Discipline and assess the costs of the disciplinary proceedings against Respondent. The

hearing committee considered Disciplinary Counsel’s recommendation of an indefinite

suspension for a minimum of six months, but ultimately concluded that a public censure was

sufficient to communicate to Respondent the seriousness of his conduct. In recommending

a public censure, the hearing committee found three aggravating factors: (1) Respondent’s

prior disciplinary case, discussed above; (2) the fact that this case involves multiple offenses;

and (3) Respondent’s “substantial experience in practicing law.” See ABA Standards §

9.22(a), (d) & (i) (listing aggravating circumstances that may justify an increase in the

discipline imposed). The only mitigating factor the hearing committee found was

Respondent’s cooperation during the disciplinary proceedings. See id. § 9.32(e).

Furthermore, the hearing committee expressly rejected Respondent’s contention that he

lacked any selfish or dishonest motive with respect to his conduct. See id. § 9.22(b). A

hearing panel of the Disciplinary Board approved the hearing committee’s findings and

conclusions, but the hearing panel recommended to this Court the more severe disciplinary

sanction of suspension from the practice of law for twelve months, with all but three months

deferred.

{23} We agree with the hearing panel that a public censure alone is an insufficient

sanction under the circumstances of this case, particularly in light of Respondent’s

demonstrated pattern of dishonesty. “Suspension is generally appropriate when a lawyer

knows that false statements or documents are being submitted to the court[,] . . . takes no

remedial action, and causes injury or potential injury to a party to the legal proceeding, or

causes an adverse or potentially adverse effect on the legal proceeding.” ABA Standards §

6.12. Suspension also is appropriate when a lawyer causes potential injury to a client by

“engag[ing] in a pattern of neglect,” id. § 4.42(b), “knowingly fail[ing] to perform services,”

id. § 4.42(a), or “engag[ing] in an area of practice in which the lawyer knows he or she is not

competent,” id. § 4.52. 

{24} In this case, Respondent’s array of professional misconduct, including the submission

of false statements to the court, adversely affected both the legal proceedings and his clients’

interests. Respondent’s clients in the legal malpractice suit ultimately lost their case on

summary judgment because Respondent failed to retain and disclose an expert witness by

the court-ordered witness disclosure deadline. And in the criminal case, Respondent should

not have accepted the defendant as a client unless Respondent intended to zealously defend

the defendant through the conclusion of the case, regardless of whether the defendant chose

to accept a plea offer.

{25} Accordingly, in our order entered September 19, 2012, we suspended Respondent

from the practice of law for one year, deferred nine months of the suspension, and ordered

that Respondent shall continue on supervised probation for one additional year from

November 28, 2012, under the same terms and conditions set forth in this Court’s November

28, 2011, order. We also ordered that Respondent pay the costs of his disciplinary

proceedings and receive this public censure. 
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CONCLUSION

{26} This Court’s primary concern in cases involving attorney discipline is to ensure that

the Court fulfills its responsibility to protect the public by ensuring that attorneys licensed

to practice law before New Mexico courts comply with our standards of professional

conduct. In re Stewart, 104 N.M. 337, 340, 721 P.2d 405, 408 (1986). Attorneys are

officers of the court, and our system of justice works only if the courts can rely on attorneys

to fulfill their duty of candor to the tribunal. See Woodson v. Phillips Petroleum Co., 102

N.M. 333, 339, 695 P.2d 483, 489 (1985). Respondent must fulfill his obligation to exhibit

the personal honesty and integrity expected of lawyers and to refrain from dishonesty and

other conduct prejudicial to the administration of justice. This public censure shall be

published in the New Mexico Bar Bulletin and the New Mexico Appellate Reports in

accordance with Rule 17-206(D). 

{27} IT IS SO ORDERED.

____________________________________

PETRA JIMENEZ MAES, Chief Justice

WE CONCUR:

____________________________________

RICHARD C. BOSSON, Justice

____________________________________

EDWARD L. CHÁVEZ, Justice

____________________________________

CHARLES W. DANIELS, Justice

____________________________________

BARBARA J. VIGIL, Justice

Topic Index for In the Matter of Chavez, No. 33,280 

ATTORNEYS

Disciplinary Action

Effective Assistance of Counsel

Legal Malpractice

Professional Responsibility

CIVIL PROCEDURE

Expert Witnesses

Summary Judgment
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CRIMINAL PROCEDURE

Plea and Plea Bargaining