In re Discipline of Santana , 2021 UT 39 ( 2021 )

2021 UT 39IN THE
SUPREME COURT OF THE STATE OF UTAH
IN THE MATTER OF THE DISCIPLINE OF MARIA C. SANTANA,
MARIA C. SANTANA,
Appellant,
v.
OFFICE OF PROFESSIONAL CONDUCT,
Appellee.
No. 20191056
Heard April 21, 2021
Filed July 29, 2021
On Direct Appeal
Third District, Salt Lake
The Honorable William Kendall
No. 160906106
Attorneys:
Steven C. Russell, Salt Lake City, for appellant
Emily A. Lee, Adam C. Bevis, Salt Lake City, for appellee
CHIEF JUSTICE DURRANT authored the opinion of the Court, in which
ASSOCIATE CHIEF JUSTICE LEE, JUSTICE HIMONAS,
JUSTICE PEARCE, and JUSTICE PETERSEN joined.
CHIEF JUSTICE DURRANT, opinion of the Court:
Introduction
¶1 Maria Santana, a member of the Utah State Bar, appeals the
outcome of an attorney discipline case in which the district court
suspended her from the practice of law for one year. Ms. Santana
does not dispute that she violated the Utah Rules of Professional
Conduct. Rather, she challenges the sufficiency of the evidence
supporting the court‟s finding that she knowingly did so.
IN RE DISCIPLINE OF SANTANA
Opinion of the Court
¶2 Ms. Santana contends that the Office of Professional
Conduct (OPC) presented no evidence to support the court‟s finding
that she acted knowingly, so the court erred in suspending her. She
asks this court to reverse the district court‟s order of suspension and
enter a lesser sanction. We decline to do so, however, because Ms.
Santana‟s own testimony indicates that she acted knowingly.
¶3 Ms. Santana also argues that the district court‟s decision to
depart from the presumptive sanction of a six-month suspension and
impose a one-year suspension is not supported by evidence in the
record. We reject this argument because the court‟s analysis of
aggravating and mitigating factors is either directly supported by or
based on reasonable inferences from the record. So we affirm the
district court‟s imposition of a one-year suspension.
Background
¶4 The OPC initiated this disciplinary proceeding following
Ms. Santana‟s representation of a client, Ms. Venegas, in a personal
injury case. At the outset of her representation of Ms. Venegas, Ms.
Santana asked the opposing party for a settlement of $60,000. That
party responded with a counteroffer of about $18,700. Instead of
taking the offer, Ms. Santana filed a complaint on behalf of her client.
¶5 During discovery, Ms. Santana was supposed to provide
opposing counsel with initial disclosures by March 8, 2013, but she
missed this deadline. Ten days later, she emailed Ms. Venegas,
asking for information relevant to the case. In this email, Ms. Santana
gave her client a deadline to respond and said she would withdraw
if Ms. Venegas did not respond within that timeline.
¶6 Having not heard from Ms. Venegas, Ms. Santana withdrew
from representing her on March 20, 2013, and told Ms. Venegas to
pick up her client file. This withdrawal was short-lived. Ms. Santana
filed a notice of appearance the next day and resumed her
representation of Ms. Venegas.
¶7 A week later, on March 27, 2013, Ms. Santana emailed
opposing counsel and asked to extend the deadline for initial
disclosures to April 10, 2013. Opposing counsel acquiesced, but Ms.
Santana never told her client about this new deadline.
¶8 Although Ms. Santana had asked for an extension, she
apparently missed the extended deadline too, because more than a
month later, on May 15, 2013, opposing counsel sent an email asking
Ms. Santana for the initial disclosures that had been due the month
before. In this email, opposing counsel also asked Ms. Santana
whether her client still wanted to proceed with the case.
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¶9 Six weeks later, on June 27, 2013, opposing counsel sent
another email requesting the initial disclosures. He also notified Ms.
Santana that he would file a motion to dismiss if he did not receive
the disclosures by July 3, 2013.
¶10 Around this time, Ms. Santana decided she would not
respond to opposing counsel or take any further action with the case
until Ms. Venegas provided her with additional information about
the case. Between March 21, 2013, and August 7, 2013, Ms. Santana
did not consult with her client regarding her decision to take no
further action or the likelihood that the case could be dismissed if
Ms. Santana did so. Ms. Santana believed that her client was
reluctant to provide certain information about the case, but she did
not consult with her client about alternatives to furnishing the
information she had requested, such as lowering the settlement
proposal.
¶11 Ms. Santana‟s deliberate course of inaction continued until
August 8, 2013, when opposing counsel filed a motion to dismiss.
Ms. Santana did not respond to this motion nor adequately
communicate with her client about her options at this stage in the
proceeding. The court dismissed Ms. Venegas‟s case with prejudice.
¶12 Following the dismissal of the case, Ms. Venegas tried to
contact Ms. Santana through various attorneys and paralegals. She
called and left messages requesting her client file and information
about her case. She did not understand that she could no longer
pursue her claim. Ms. Santana did not respond to these messages.
¶13 Ms. Venegas hired a new attorney and, in September 2014,
he left voicemail messages and sent a letter requesting Ms. Venegas‟s
file. Ms. Santana responded to the messages a month later, but by
then Ms. Venegas‟s new attorney had declined to continue to
represent her for reasons unrelated to Ms. Santana‟s inaction. Ms.
Venegas then hired yet another attorney, who also requested her file
from Ms. Santana. But Ms. Santana did not return the file until long
after the OPC became involved.
¶14 The OPC contacted Ms. Santana by letter the following year,
in May and July 2015, requesting information regarding her
representation of Ms. Venegas. Ms. Santana did not respond until
shortly before the date of a screening panel hearing held on February
2, 2016. On that date, she finally gave Ms. Venegas her client file.
¶15 Following the screening panel, the OPC filed a formal
complaint, alleging several violations of the Rules of Professional
Conduct. The OPC alleged that Ms. Santana had failed to serve
initial disclosures, failed to pursue her client‟s case, failed to respond
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IN RE DISCIPLINE OF SANTANA
Opinion of the Court
to her client‟s requests for information, failed to inform her client of
the motion to dismiss, failed to give reasonable notice to her client
that she was no longer representing her, failed to return her client‟s
file, and failed to respond to the OPC‟s requests for information
regarding the disciplinary matter.
¶16 In response to the OPC‟s complaint, Ms. Santana filed a
motion to stay her disciplinary hearing on the basis that she had just
filed a civil action against Ms. Venegas. But the court denied her
motion to stay, and Ms. Santana ultimately chose not to pursue her
civil case against Ms. Venegas.
¶17 The court held an adjudication hearing in response to the
OPC‟s complaint. During the course of litigation, Ms. Santana
missed deadlines, asked for extensions, and raised issues at the last
minute. At the hearing, the court entered evidence and heard
testimony regarding Ms. Santana‟s representation of Ms. Venegas
and concluded that Ms. Santana had committed several rules
violations.
¶18 First, the court concluded that she had violated rule 1.3 of
the Utah Rules of Professional Conduct because she knew the initial
disclosures for Ms. Venegas‟s case were due, but she failed to act
within that deadline even after obtaining an extension and likewise
failed to timely respond to opposing counsel‟s emails.
¶19 Second, the court concluded that Ms. Santana had violated
rule 1.4(a) because she had not kept Ms. Venegas reasonably
informed of the due dates for initial disclosures and her decision not
to take further action in the case until Ms. Venegas provided the
information she had requested. The court further found that Ms.
Santana failed to respond to the motion to dismiss and inform Ms.
Venegas about it.
¶20 Third, the court concluded that Ms. Santana had violated
rule 1.16(d) by failing to fully explain to her client the effect of a
dismissal with prejudice and any deadlines or requirements for
appeal and had further failed to timely return Ms. Venegas‟s client
file despite repeated requests that she do so.
¶21 Last, the court concluded that Ms. Santana had violated rule
8.1(b) by failing to respond to the OPC‟s requests for information
about her representation of Ms. Venegas until just before the date of
the screening panel. The court entered these conclusions regarding
Ms. Santana‟s misconduct and ordered a sanctions hearing to
consider evidence of aggravating and mitigating circumstances.
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¶22 The court held the sanctions hearing in August 2019. It
entered its findings of fact from the adjudication hearing and
considered additional evidence and testimony regarding a
disciplinary order of admonition entered against Ms. Santana in 1999
and the civil lawsuit Ms. Santana had filed against Ms. Venegas.
Based on its findings of fact from both the adjudication hearing and
the sanctions hearing, the court concluded that Ms. Santana had
violated the rules knowingly.
¶23 The court found that Ms. Santana knew the initial
disclosures were due and the motion to dismiss was pending, but
she neither responded to the motion nor consulted with her client
about the case at this time. The court further found that, after the
case was dismissed, Ms. Santana knew that Ms. Venegas wanted
information about the status of the case and had requested her client
file, but Ms. Santana failed to keep Ms. Venegas informed and failed
to give her a copy of her client file until long after the OPC became
involved. The court also found that Ms. Santana knowingly failed to
respond to the OPC‟s requests for information within the deadlines
provided to her. Based on these facts, the court concluded that Ms.
Santana was aware of the circumstances surrounding each rule
violation.
¶24 Next, the court found that Ms. Santana had caused actual
harm to Ms. Venegas because she received nothing for her case when
it was dismissed with prejudice, and Ms. Santana‟s failure to act
diligently, keep her client informed, and return her client‟s file had
undermined public trust in the profession and in the legal system.
The court also concluded that Ms. Santana‟s failure to timely
respond to the OPC‟s requests for information had further
undermined public trust in the legal profession.
¶25 Based on its conclusion that Ms. Santana had knowingly
violated the rules and had harmed her client and public trust in the
legal profession, the court concluded that the presumptive level of
discipline under rules 14-605(b)(1) and 14-603(c) of the Standards for
Imposing Lawyer Sanctions was suspension for six months.1 The
court then considered whether any aggravating and mitigating
_____________________________________________________________
1Rules 14-605 and 14-603 were renumbered as 11-583 and 11-581
and renamed the Supreme Court Rules of Professional Practice in
December 2020. We refer to the rules as they were numbered at the
time of the district court‟s decision.
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IN RE DISCIPLINE OF SANTANA
Opinion of the Court
circumstances warranted a departure from the presumptive
sanction.
¶26 With respect to aggravating circumstances, the court
concluded that Ms. Santana‟s self-serving delay in procuring Ms.
Venegas‟s client file, her pattern of inaction and failure to
communicate with her client, her failure to acknowledge the
wrongful nature of her misconduct, and her failure to make a good
faith effort to make restitution all weighed heavily in favor of
departing from the presumptive sanction and imposing a one-year
suspension instead. The court also noted that Ms. Santana had a
previous record of attorney discipline in 1999.
¶27 In its consideration of mitigating factors, the court
determined that Ms. Santana‟s prior discipline was sufficiently
remote in time to act as a mitigating factor. Otherwise, the court held
that Ms. Santana had failed to establish any other mitigating factors.
So the court concluded the sanctions phase of the proceeding and
suspended Ms. Santana from the practice of law for one year.
¶28 Following the sanctions hearing, Ms. Santana appealed. Ms.
Santana argues that the court erred in concluding she had acted
knowingly. In her view, the OPC did not present evidence regarding
her state of mind, so the court must have erred in imposing the one-
year suspension. She also argues that the court‟s analysis of
aggravating factors is not supported in the record.
¶29 We have jurisdiction to review this case pursuant to Utah
Code section 78A-3-102(3)(c).
Standard of Review
¶30 In attorney discipline cases, “we must treat the ultimate
determination of discipline as our responsibility.”2 So we must
“make an independent determination of the correctness of the
discipline the district court imposed.”3
¶31 In making such a determination, we “ordinarily presume
findings of fact to be correct and will not overturn them „unless they
_____________________________________________________________
2 In re Discipline of Babilis, 951 P.2d 207, 213 (Utah 1997).
3 Utah State Bar v. Lundgren (In re Discipline of Lundgren), 2015 UT
58, ¶ 9, 355 P.3d 984 (citation omitted) (internal quotation marks
omitted).
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are arbitrary, capricious, or plainly in error.‟”4 But we also “reserve
the right to draw inferences from basic facts which may differ from
the inferences drawn by the [lower tribunal].”5
Analysis
¶32 On appeal, Ms. Santana does not challenge the district
court‟s conclusion that she violated the rules. Instead, she disputes
the court‟s conclusion that she knowingly did so. Her argument is
simple. She asserts that the OPC failed, at both the adjudication and
sanctions hearings, to present evidence regarding her state of mind
during the course of her representation of Ms. Venegas. So, in her
view, the court erred in finding that she acted knowingly, and thus
the court erred in imposing a one-year suspension under rule 14-
605(b) of the Standards for Imposing Lawyer Sanctions. She also
argues that the evidence presented does not support the court‟s
analysis of aggravating and mitigating factors.
¶33 The OPC counters that the evidence presented supports the
necessary elements for imposing a one-year suspension. In its view,
the record supports the district court‟s conclusion that Ms. Santana
acted knowingly. And the court‟s conclusion that Ms. Santana‟s
misconduct caused harm, together with the aggravating factors
present in the record, supports a one-year suspension.
¶34 First, we consider whether the OPC presented evidence to
support the court‟s determination that Ms. Santana acted knowingly
for each rule violation. We conclude that the court did not err in this
finding because Ms. Santana‟s own testimony demonstrates she was
aware of the circumstances surrounding her misconduct.
¶35 Second, we consider whether the record supports the court‟s
findings regarding aggravating circumstances and its ultimate
decision to impose a one-year suspension. We conclude that the
record does, so we affirm the imposed one-year suspension.
I. The Court Did Not Err in Concluding that Ms. Santana Acted
Knowingly
¶36 First, we address Ms. Santana‟s argument that the court
erred in concluding that she violated the rules knowingly. She
argues the OPC failed to present evidence regarding her mental state
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4Babilis, 951 P.2d at 213 (quoting In re Knowlton, 800 P.2d 806, 808
(Utah 1990)).
5 Id. (alteration in original) (citation omitted).
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IN RE DISCIPLINE OF SANTANA
Opinion of the Court
at both the adjudication and sanctions phases of the disciplinary
proceeding. We disagree. Ms. Santana‟s own testimony indicates that
she was aware of the circumstances surrounding her misconduct.
¶37 For professional misconduct, rule 14-601(f)6 of the Standards
for Imposing Lawyer Sanctions defines a knowing mental state as
“the conscious awareness of the nature or attendant circumstances of
the conduct but without the conscious objective or purpose to
accomplish a particular result.” Conscious awareness of the
circumstances is what separates knowing misconduct from
unwitting or negligent misconduct. For example, in In re Discipline of
Bates, we explained that an attorney who is aware he is misusing his
client‟s money is more culpable than an attorney who fails to realize
he is doing so.7 So “[w]hile the negligent use of client money is
reprehensible, and certainly warrants sanctions,” knowing
misappropriation of client money typically warrants a greater
sanction.8
¶38 Ms. Santana argues that, because the word “knowing” is
absent from the court‟s findings following the adjudication phase of
the proceeding, the OPC must have failed to present evidence
showing that she acted knowingly. But the OPC did not need to
present direct evidence of Ms. Santana‟s mental state to prove that
she acted knowingly.
¶39 We have held that “[c]ircumstantial evidence is particularly
useful in establishing [a defendant‟s mental state] because direct
evidence of [mental state] is rarely available.”9 So “[c]ircumstantial
evidence [may be used] to find [mental state] on the basis of
reasonable inferences drawn from the evidence.”10 But in Ms.
Santana‟s case, the court did not need to rely on inferences or
circumstantial evidence, because Ms. Santana testified that she had
been aware of the circumstances surrounding each rule violation.
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6 Rule 14-601(f) was renumbered as 11-502(j) in December 2020.
7 2017 UT 11, ¶ 24, 391 P.3d 1039.
8 Id.9 Salt Lake City v. Carrera, 2015 UT 73, ¶ 11, 358 P.3d 1067.
10 In re Discipline of Gilbert, 2016 UT 32, ¶ 44, 379 P.3d 1247 (first
and second alterations in original) (quoting Carrera, 2015 UT 73,
¶ 11) (inferring that an attorney acted knowingly when he failed to
comply with a court order after receiving a copy of it).
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¶40 First, under rule 1.3 of the Utah Rules of Professional
Conduct, Ms. Santana had a duty to “act with reasonable diligence
and promptness in representing” Ms. Venegas. The district court
concluded that Ms. Santana violated this rule when she failed to
provide initial disclosures to opposing counsel despite asking for an
extension. During the adjudication phase of the proceeding, Ms.
Santana testified that she was aware of the missed deadlines at the
time. From this, the court correctly concluded that Ms. Santana was
aware of the circumstances when she failed to act with reasonable
diligence in violation of rule 1.3.
¶41 Second, rule 1.4(a)(3) imposed a duty on Ms. Santana to
keep Ms. Venegas “reasonably informed about the status of” her
case. The court concluded that Ms. Santana had failed to keep Ms.
Venegas informed when she failed to tell her about the extended
deadline for initial disclosures and the dismissal motion filed by
opposing counsel when she missed that deadline. During the
adjudication hearing, in addition to testifying that she knew about
the missed deadlines, Ms. Santana also testified that she was aware
of the motion to dismiss when it was filed. From this, the court
correctly concluded that Ms. Santana was aware of the
developments in Ms. Venegas‟s case but nevertheless failed to pass
that information on as required by rule 1.4(a).
¶42 Third, under rule 1.16(d), “[u]pon termination of
representation, a lawyer . . . must provide, upon request, the client‟s
file to the client.” The court concluded that Ms. Santana violated this
rule by failing to give Ms. Venegas her file when the case was
dismissed. Based on Ms. Santana‟s own testimony, the court found
that she knew Ms. Venegas had requested her file by September
2014, but Ms. Santana failed to return it to her until February 2016.
So it is clear that Ms. Santana knowingly violated rule 1.16(d) by
failing to return Ms. Venegas‟s file upon request.
¶43 Last, under rule 8.1(b), Ms. Santana had a duty not to
“knowingly fail to respond to a lawful demand for information
from” the OPC. The court found that the OPC had sent Ms. Santana
several letters requesting information regarding her representation
of Ms. Venegas. And although Ms. Santana knew about at least one
of these letters, she did not timely respond to the OPC‟s requests for
information. So the record clearly supports the court‟s conclusion
that Ms. Santana knowingly violated rule 8.1(b).
¶44 In summary, Ms. Santana‟s own testimony indicates she was
aware of the circumstances surrounding each instance of
misconduct. She knew about the deadlines for initial disclosures but
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Opinion of the Court
failed to act within those deadlines. She knew that Ms. Venegas‟s
case was headed towards dismissal, but she did not tell her or
respond to the motion to dismiss. When Ms. Venegas asked for her
file, Ms. Santana failed to give it to her. And Ms. Santana knew the
OPC had requested information from her, but she did not timely
respond. So although the court never used the word “knowing” in
its findings of fact, it clearly had sufficient evidence to conclude that
Ms. Santana knowingly violated the rules of professional conduct.
II. The Court Did Not Err in Imposing a One-year Suspension
¶45 Having decided that the district court did not err in
concluding that Ms. Santana knowingly violated the Rules of
Professional Conduct, we now address her argument that the court
erred in departing from the presumptive sanction of a six-month
suspension. She argues that the aggravating factors discussed by the
court “are not found in any testimony or evidence.” We disagree,
however, because each aggravating factor is either directly
supported by the evidence or reasonably inferred from the record.
¶46 Rule 14-605(b)(1) of the Standards for Imposing Lawyer
Sanctions states that suspension is appropriate when a lawyer
“knowingly engages in professional misconduct . . . and causes
injury or potential injury to a party, the public, or the legal system.”
During the sanctions phase of Ms. Santana‟s disciplinary proceeding,
the district court determined that a six-month suspension was
appropriate given the rules Ms. Santana had violated, her knowing
mental state, and the harm she had caused to Ms. Venegas and
public trust in the legal profession. The court then considered any
aggravating or mitigating circumstances to determine whether Ms.
Santana‟s conduct warranted a more severe sanction.
¶47 For a court to depart from the presumptive sanction, we
have stated that the aggravating factors must be significant. 11 But
Ms. Santana does not challenge the significance of the aggravating
factors on which the court relied. Rather, she argues that the court‟s
findings have no basis in the record. We disagree because the court‟s
findings are either directly supported by the evidence or reasonably
inferred from the record.
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11 In re Discipline of Ince, 957 P.2d 1233, 1237–39 (Utah 1998)
(concluding that an attorney should be disbarred after he
“knowingly violated the rules of professional conduct and stole
money to support a lifestyle beyond his means”).
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¶48 The court considered a number of aggravating
circumstances in its analysis. First, it noted that Ms. Santana had in
1999 been disciplined in Utah. But this was mitigated by the fact that
the misconduct had occurred so many years before.
¶49 Second, the court considered Ms. Santana‟s failure to return
Ms. Venegas‟s client file and respond to the OPC‟s requests for
information. The court found that Ms. Santana had acted with a
dishonest or selfish motive by prioritizing her own self-protection
over the interests of the legal profession and her client. Although the
OPC did not present direct evidence of Ms. Santana‟s motives, the
court reasonably inferred that Ms. Santana had prioritized her self-
protection by waiting so long to return Ms. Venegas‟s client file and
provide information to the OPC about her misconduct.
¶50 Third, the court found that Ms. Santana had engaged in a
pattern of misconduct by violating several rules multiple times. As
mentioned above, Ms. Santana does not dispute that she violated the
rules, so she does not challenge this finding on appeal. Regardless,
the court‟s finding is supported by the facts underlying each of the
rule violations discussed above.
¶51 Fourth, the court found that Ms. Santana failed to
acknowledge the wrongful nature of her misconduct. Rather, she
blamed Ms. Venegas and made excuses. The court also noted that
Ms. Santana was not always forthcoming during the disciplinary
proceeding. The court supported these findings with a reference to
the fact that Ms. Santana did not timely respond to the OPC‟s
requests and failed to fully cooperate in the disciplinary process.
¶52 Fifth, the court considered Ms. Santana‟s twenty-three years
of experience as a lawyer. The court found that, despite Ms.
Santana‟s testimony that she had limited experience with personal
injury cases, she nevertheless had enough civil litigation experience
to know about initial disclosures and motions to dismiss. So her
misconduct was not excusable as a rookie mistake.
¶53 Last, the district court was concerned that Ms. Santana had
failed to make a good faith effort to make restitution for the missteps
in her representation of Ms. Venegas. “Rather than provide some
initial disclosures, seek a settlement or some other mitigating
action,” Ms. Santana did nothing to pursue Ms. Venegas‟s interests.
And after she terminated her representation of Ms. Venegas, Ms.
Santana failed to return Ms. Venegas‟s file and eventually filed a
lawsuit against her for breach of contract. At the sanctions phase of
the proceeding, Ms. Santana did not present sufficient evidence to
justify her delay in returning Ms. Venegas‟s file.
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Opinion of the Court
¶54 After reviewing the record, we reject Ms. Santana‟s
argument that the court‟s discussion of aggravating factors is not
supported in the record. Each factor the court discussed is either
directly supported by the evidence or reasonably inferred from the
record. So we affirm the court‟s imposition of a one-year suspension.
Conclusion
¶55 We reject Ms. Santana‟s argument that the court erred in
concluding she knowingly violated the rules of professional conduct,
because her own testimony indicates that she was aware of the
circumstances surrounding her misconduct. We also reject her
argument that the court‟s analysis of aggravating factors is
unsupported in the record, because each factor is either directly
supported by the evidence or reasonably inferred from the record.
We affirm the district court‟s imposition of a one-year suspension.
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