In re Ortiz , 4 N.M. 361 ( 2013 )


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  •          IN THE SUPREME COURT OF THE STATE OF NEW MEXICO
    Opinion Number: ______________
    Filing Date: June 24, 2013
    Docket No. 33,829
    IN THE MATTER OF
    PATRICIA S. ORTIZ, Esquire
    An Attorney Licensed to
    Practice Before the Courts
    of the State of New Mexico
    Christine E. Long, Assistant Disciplinary Counsel
    Albuquerque, NM
    for Disciplinary Board
    The Bryant Law Office, LLC
    Daniel A. Bryant
    Ruidoso, NM
    for Respondent
    OPINION
    CHÁVEZ, Justice.
    {1}      The oath taken by every attorney upon admission to the practice of law in New
    Mexico includes a promise to “maintain civility at all times, abstain from all offensive
    personality, and advance no fact prejudicial to the honor or reputation of a party or witness
    unless required by the justice of the cause with which [the attorney is] charged.” See Rule
    15-304 NMRA. By that same oath, every attorney practicing in New Mexico promises to
    “maintain the respect due to courts of justice and judicial officers.” 
    Id. Those solemn promises
    are reflected within our Rules of Professional Conduct, which prohibit a lawyer
    from engaging in conduct during the course of representing a client that has “no substantial
    purpose other than to embarrass, delay or burden a third person,” Rule 16-404(A) NMRA,
    and from making statements concerning the qualifications or integrity of a judicial officer
    that the lawyer knows are false or that the lawyer makes with reckless disregard for the truth,
    Rule 16-802(A) NMRA.
    {2}    This disciplinary proceeding arises from a series of incidents in which an attorney
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    failed in her commitment to civility and respect toward others, eroding public confidence in
    the legal system and weakening the effectiveness of the litigation on many levels. Treating
    others with respect and abstaining from offensive conduct are not standards unique to the
    legal profession, but maintaining such standards of behavior is critical to the proper
    functioning of our adversarial system of justice. Without a steadfast commitment to treating
    others with respect and dignity, the reputation of our legal system will continue to diminish,
    and the public’s willingness to rely on our legal system to resolve disputes will continue to
    erode. This opinion underscores this Court’s commitment to enforce ethical standards of
    behavior that will promote a civil and respectful environment within our legal system.
    FACTUAL AND PROCEDURAL BACKGROUND
    {3}     This case began with the filing of a specification of charges against attorney Patricia
    S. Ortiz (Respondent) for three counts of violating our Rules of Professional Conduct
    through her oral and written statements. The charges arose from three separate incidents that
    occurred during Respondent’s representation of three different clients in three different
    domestic matters in district court. As a result of her conduct, complaints were filed with our
    disciplinary board by opposing counsel or an opposing party in each case. The disciplinary
    board’s hearing committee issued findings of fact and conclusions of law on each of the
    three incidents.
    {4}      Findings on the first incident involved a series of oral and written statements made
    by Respondent during the course of a domestic violence proceeding. In one conversation
    between Respondent and opposing counsel, Respondent referred to a fellow member of the
    bar as a “dumb bitch.” During another hearing, Respondent also made uncomplimentary and
    demeaning comments in the presence of opposing counsel and his client to the effect that the
    domestic violence commissioner was “a freak” or that the proceedings in his courtroom were
    “a freak show.” In a subsequent letter to opposing counsel, Respondent made other
    uncomplimentary and demeaning comments about the opposing party and his family, and
    also stated that opposing counsel was “despicable to be so new to the profession.” In yet
    another letter, Respondent referred to opposing counsel as “eternal lying scum,” and in an
    email one year later accused the opposing party of “lying through his frigging teeth.” The
    hearing committee found that Respondent “demonstrated a pattern of intemperate,
    disparaging, demeaning, insulting, threatening, uncomplimentary, and unprofessional use
    of language” throughout the entire course of the proceeding that “aggravated and inflamed
    the tone of the litigation” and “adversely impacted the progress of the litigation and caused
    [the opposing party] to incur unnecessary additional expense.”
    {5}     Findings on the second incident arose out of a domestic relations matter involving
    “very contentious issues” concerning custody, visitation, and a parenting plan. At issue was
    a prior custody and visitation arrangement ordered by the judge previously assigned to the
    case, who had since retired. Respondent and her client were in the courtroom with opposing
    counsel, her client, and his family. The current judge assigned to the case was not in the
    courtroom while the parties discussed a possible resolution to the case.
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    {6}     During the course of their discussion, opposing counsel, her client, and his family
    heard Respondent either use the word “drunk” with respect to the retired judge or heard
    Respondent refer to the retired judge as a “drunkard on the bench,” a “drunken idiot on the
    bench,” or “drunk on the bench,” while being critical of the order he had entered. They also
    heard Respondent say that the opposing party’s mother had “bought off” the retired judge,
    which was an accusation that Respondent had previously made to opposing counsel.
    Although Respondent contended that her remark was made to her client during a confidential
    conversation in the courtroom, the hearing committee nevertheless found that Respondent’s
    statement was recklessly made in a public venue and was not made in a confidential
    conversation with Respondent’s client, but was instead made toward opposing counsel and
    her client. In addition to finding that Respondent’s comments about the retired judge
    increased the acrimony in the case and fueled an adversarial climate, the hearing committee
    found that Respondent made numerous recurring, uncomplimentary, and demeaning
    comments to and about the opposing party, referring to him as “goofy” as well as a
    “dimwit,” a “dingbat,” and a “duffus.”
    {7}     Findings on the third incident at issue in this disciplinary proceeding, Respondent
    implied in an email that the judge and opposing counsel in yet another domestic matter were
    engaged in an impermissible relationship that improperly influenced the judge by stating that
    “the two of them are bosom buddies.” In the same email, Respondent also stated that “we
    already know that [the judge] did not tell the truth to the teacher—God only knows what she
    and CASA [Court Appointed Special Advocates for Children] said to each other.”
    Regarding the statements in the email, the hearing committee found that there was no
    evidence to support Respondent’s accusations. During the course of that case, Respondent
    accused opposing counsel of making improper comments in hearings before the district court
    that were “designed only to attempt to influence the presiding judge into adopting the same
    foul, inhumane attitudes that [opposing counsel] holds for fallible human beings.” As with
    Respondent’s other accusations, the hearing committee found that there was no evidence to
    support Respondent’s accusations of inappropriate conduct by opposing counsel and that her
    statements had “no identifiable redeeming justification other than to insult or intimidate
    opposing counsel or inappropriately [try] to influence the trier of fact.”
    {8}     In light of the foregoing conduct, the hearing committee concluded that Respondent
    violated several Rules of Professional Conduct. See Rule 16-401(A) NMRA (prohibiting
    a lawyer from knowingly making a false statement of material fact to a third person); Rule
    16-404(A) (prohibiting a lawyer during the course of representing a client from engaging in
    conduct that has “no substantial purpose other than to embarrass, delay or burden a third
    person”); Rule 16-802(A) (prohibiting a lawyer from making statements concerning the
    qualifications or integrity of a judicial officer that the lawyer knows are false or that are
    made with reckless disregard for the truth); Rule 16-804(A) (violating or attempting to
    violate the Rules of Professional Conduct constitutes professional misconduct by a lawyer);
    Rule 16-804(C) (engaging in conduct that involves misrepresentation); Rule 16-804(D)
    (engaging in conduct that is prejudicial to the administration of justice constitutes
    professional misconduct by a lawyer).
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    {9}     In determining its recommendation for discipline, the hearing committee found that
    several aggravating circumstances existed, including the fact that Respondent has substantial
    experience in the practice of law; she has committed multiple offenses that display a pattern
    of misconduct; she has refused to acknowledge the wrongful nature of her conduct; and she
    has had prior disciplinary offenses. The hearing committee therefore recommended that
    Respondent (1) be suspended from the practice of law for a minimum of six months, (2)
    serve a twelve-month period of supervised probation after the suspension, (3) successfully
    complete extra continuing legal education in the areas of professionalism and ethics, (4)
    successfully complete an accredited anger management program, and (5) pay the costs of the
    proceeding.
    {10} The hearing committee’s recommendation then went before a panel of the
    disciplinary board for review. See Rule 17-314(A) NMRA (providing for review of hearing
    committee recommendations by a hearing panel of the disciplinary board). While the matter
    was pending before the disciplinary board panel, Respondent moved for reconsideration and
    asked that the matter be reopened for the taking of new evidence because Respondent
    claimed that her newly diagnosed bipolar disorder contributed to her misconduct. The
    disciplinary board panel denied Respondent’s request and ultimately adopted the hearing
    committee’s recommendation for discipline.
    {11} When the disciplinary board recommends the suspension of an attorney, Rule 17-
    316(A)(1) NMRA permits that attorney to request a hearing before this Court. Respondent,
    however, chose not to request a hearing and stated that she was prepared to accept the
    recommended suspension. At the request of this Court, Respondent nonetheless filed a
    response. In her response, and subsequently at oral argument before this Court, Respondent
    did not challenge the evidence of her misconduct, but focused instead on her contention that
    the recommended six-month suspension was too harsh because she had shown remorse for
    her misconduct and because her misconduct may have been caused, at least in part, by a
    previously undiagnosed bipolar disorder.
    {12} After deliberations following oral argument, we announced Respondent’s discipline
    from the bench and then issued a written order to memorialize our ruling, which included
    a six-month suspension from the practice of law, a concurrent two-year period of supervised
    probation, additional continuing legal education in ethics and professionalism, successful
    completion of an anger management program, and payment of the costs of the disciplinary
    proceeding. Regarding the period of suspension, however, we delayed implementing the
    suspension for 90 days to give Respondent the opportunity to provide evidence that her
    newly diagnosed bipolar condition contributed to her misconduct, and treatment of the
    condition would prevent the recurrence of such misconduct. We issue this opinion to explain
    our decision.
    DISCUSSION
    {13}   We begin by noting that there is no dispute that Respondent engaged in a persistent
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    pattern of misconduct unbecoming to an attorney who has taken an oath to “maintain civility
    at all times, abstain from all offensive personality, and advance no fact prejudicial to the
    honor or reputation of a party.” See Rule 15-304. Thus, our focus is the appropriate level
    of discipline.
    {14} Respondent’s words were not innocuous. The hearing committee found, and
    Respondent has not contested, that her misconduct increased acrimony and fueled an
    adversarial climate that aggravated, inflamed, and adversely impacted the progress of the
    litigation in which she was involved. By her intolerable behavior, Respondent caused
    unnecessary additional expense and sought to intimidate and improperly influence those who
    stood in her way. Our legal profession must vigilantly strive to maintain the confidence of
    the public and to earn a reputation as a profession that pursues justice without personal
    attacks and unnecessary expense. Respondent’s misconduct has undermined such efforts
    and reinforced public disillusionment with a legal system that has become too costly, hostile,
    and slow. Our rules of ethics require much more from our attorneys, and our system of
    justice can afford no less. In short, we agree with the conclusions of the both the hearing
    committee and the disciplinary board hearing panel that Respondent’s actions violated the
    myriad of ethical rules discussed above. See Rules 16-401(A), 16-404(A), 16-802(A), 16-
    804(A), 16-804(C), & 16-804(D).
    {15} We also agree with the hearing committee’s conclusion that a number of aggravating
    factors are present in this case. First, Respondent committed multiple violations of our
    ethics rules, and the rules she has violated demonstrate a disturbing pattern of conduct. See
    ABA Standards for Imposing Lawyer Sanctions (ABA Standards) 9. 21, 9.22(c), & 9.22(d)
    (1986, as amended through 1992) (providing that a pattern of misconduct and multiple
    offenses are aggravating factors that may justify an increase in the degree of discipline); In
    re Key, 2005-NMSC-014, ¶ 5, 
    137 N.M. 517
    , 
    113 P.3d 340
    (per curiam) (recognizing that
    this Court looks to the ABA Standards for guidance in determining appropriate lawyer
    disciplinary sanctions). Second, while the egregious behavior in this case is something we
    do not want to see from any attorney, it is especially disappointing to see it from a long-time
    member of the bar who should be serving as a model of professionalism for new attorneys
    to emulate. See ABA Standards 9.22(i) (providing that substantial experience in the practice
    of law may be an aggravating factor). Perhaps most troubling, Respondent has a history of
    past disciplinary sanctions imposed by the disciplinary board that never came before this
    Court for review, but that are quite similar to the misconduct in this case. See 
    id. 9.22(a) (providing that
    past disciplinary offenses may be an aggravating factor); see also In re Ortiz,
    Disciplinary No. 01-2008-534, Bar Bulletin, N.M. State Bar, August 18, 2008, at 15 (formal
    reprimand dated July 25, 2008) (reprimanding respondent for disparaging comments and
    unfounded accusations directed at a judge).
    {16} Because Respondent’s conduct was intentional and caused prejudice to both the
    parties and their attorneys who were the recipients of her intemperate remarks, and because
    a number of aggravating factors were present in this case, after oral argument this Court was
    inclined to agree with the disciplinary board’s recommendation to suspend Respondent from
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    the practice of law for six months. See generally ABA Standards 3.0 (providing that a court
    should consider the duty violated, the lawyer’s mental state, the actual or potential injury
    caused by the misconduct, and any aggravating or mitigating factors to determine the
    appropriate level of discipline). Indeed, other jurisdictions have imposed similar lengths of
    disciplinary suspension for attorneys who used intemperate and offensive language within
    the legal system. See, e.g., Ky. Bar Ass’n v. Waller, 
    929 S.W.2d 181
    , 183 (Ky. 1996)
    (imposing six-month suspension for use of “scurrilous language with respect to a judge”);
    In re Kahn, 
    791 N.Y.S.2d 36
    , 38 (N.Y. App. Div. 2005) (per curiam) (imposing six-month
    suspension for making unseemly and offensive comments); Office of Disciplinary Counsel
    v. Gardner, 
    793 N.E.2d 425
    , 433 (Ohio 2003) (per curiam) (imposing six-month suspension
    for unfounded attacks on the integrity of the judiciary); In re White, 
    707 S.E.2d 411
    , 413,
    416 (S.C. 2011) (per curiam) (imposing 90-day suspension for “blatant incivility”).
    However, because Respondent continued to assert that her newly diagnosed bipolar disorder
    was the cause of her misconduct, this Court was hesitant to impose an immediate suspension
    at the close of oral argument. In re Bristol, 2006-NMSC-041, ¶ 32, 
    140 N.M. 317
    , 
    142 P.3d 905
    (per curiam) (recognizing that suspension is not warranted if the respondent attorney
    does not possess the requisite culpable mental state).
    {17} While Respondent’s misconduct, standing alone, would warrant a suspension from
    the practice of law, we deferred the implementation of the six-month suspension to give
    Respondent an opportunity to demonstrate whether her misconduct was the result of a
    bipolar condition that could be successfully treated to the point that this Court could be
    assured that Respondent would not engage in similar misconduct in the future. Ordinarily
    such matters should be developed below through evidence before a hearing committee. 
    Id. ¶ 15 (noting
    that the hearing committee is the entity designated to take evidence in a
    disciplinary hearing). However, under the circumstances of this case, Respondent was not
    diagnosed with her condition, and that diagnosis was not linked to her ongoing outbursts,
    until after the hearing committee had concluded its work. Respondent asked the hearing
    panel to permit the matter to be reopened so that she could develop evidence on these points,
    but the hearing panel denied her request. We do not fault the hearing panel for its reluctance
    to reopen the proceeding for new evidence at the eleventh hour, but at the same time, this
    Court was unwilling to simply discipline Respondent without taking into consideration all
    pertinent information that might help this Court fashion an effective sanction. We therefore
    elected to defer Respondent’s suspension to see if she could present competent medical
    evidence to show that her misconduct was caused by her bipolar disorder and could be
    prevented in the future with proper treatment.
    {18} In so doing, we were mindful that a mental infirmity does not provide a defense to
    professional misconduct. In re Martin, 1999-NMSC-022, ¶ 15, 
    127 N.M. 321
    , 
    980 P.2d 646
    (per curiam). As we have said before, “a medical condition, though met with sympathy and
    compassion, is not to be considered as a mitigating factor in discipline absent a meaningful
    and sustained period of successful rehabilitation.” In re O’Brien, 2001-NMSC-025, ¶ 17,
    
    130 N.M. 643
    , 
    29 P.3d 1044
    (per curiam). Respondent could not demonstrate “a meaningful
    and sustained period of successful rehabilitation,” 
    id., at the time
    of her hearing before this
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    Court because an evidentiary record had not been developed below, given that her condition
    had been only recently diagnosed, and a course of treatment had just begun. Under these
    circumstances, we concluded that the prudent course was to delay the imposition of the
    suspension until we had all the information necessary to make a fully informed decision
    about the appropriate level of discipline to impose. In this regard, it is important to
    emphasize that Respondent’s bipolar disorder was not a defense to the imposition of
    disciplinary sanctions. In re Martin, 1999-NMSC-022, ¶ 15. Quite the opposite is true.
    Regardless of the cause, this Court is obligated to impose the appropriate level of discipline
    necessary to protect the public and our legal system from further damage that might result
    from continued misconduct by Respondent. See In re Chavez, 2013-NMSC-008, ¶ 26, 
    299 P.3d 403
    (recognizing that the Court’s primary concern in attorney discipline cases is to
    protect the public by ensuring that attorneys comply with our standards of professional
    conduct). Whether Respondent was fully culpable for her misconduct is less important than
    ensuring that similar misconduct does not occur in the future. We cannot fashion truly
    effective sanctions without having all the pertinent information before us.
    {19} As it turned out, Respondent was able to provide this Court with uncontested medical
    evidence demonstrating that her prior outbursts were quite likely caused by a long-standing
    but untreated bipolar condition, and the treatment she was receiving would prevent such
    misconduct from recurring. We therefore ultimately rescinded Respondent’s suspension, but
    retained the period of supervised probation. The outcome does not diminish the seriousness
    of Respondent’s misconduct in this case. Regardless of the cause, her offensive language
    and unfounded accusations caused real harm. We are confident that with continued
    treatment and a heightened awareness of the importance of civility in all her
    communications, Respondent will not come before this Court again to answer new
    disciplinary charges. However, should she relapse, we will not hesitate to impose a more
    severe disciplinary sanction next time.
    CONCLUSION
    {20} While the ultimate outcome in this case did not result in Respondent’s suspension
    from the practice of law, all members of the bar should take note that our call for civility in
    all aspects of the practice of law must be taken seriously. Because legal disputes can be
    emotionally charged, it is up to every member of the bench and bar to behave in a manner
    that exemplifies the best of our profession. At a minimum, it is the ethical responsibility of
    every attorney to maintain a civil demeanor that helps to resolve disputes, rather than
    escalate them.
    {21}   IT IS SO ORDERED.
    _________________________________
    EDWARD L. CHÁVEZ, Justice
    WE CONCUR:
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    ____________________________________
    PETRA JIMENEZ MAES, Chief Justice
    ____________________________________
    RICHARD C. BOSSON, Justice
    ____________________________________
    CHARLES W. DANIELS, Justice
    ____________________________________
    BARBARA J. VIGIL, Justice
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Document Info

Docket Number: Docket 33,829

Citation Numbers: 4 N.M. 361, 2013 NMSC 027

Judges: Barbara, Bosson, Charles, Chavez, Daniels, Edward, Jimenez, Maes, Petra, Richard, Vigil

Filed Date: 6/24/2013

Precedential Status: Precedential

Modified Date: 8/6/2023