IN THE MATTER OF D. DIEGO ZAMORA, ESQ., An Attorney Licensed to Practice Before
the Courts of the State of New Mexico
Docket No. 26,662
SUPREME COURT OF NEW MEXICO
2001 NMSC 11;
21 P.3d 30;
2001 N.M. LEXIS 104;
40 N.M. St. B. Bull. 17
April 12, 2001, Filed
SUBSEQUENT HISTORY:
[***1] As Corrected April 26, 2001. Released for Publication April 12, 2001.
DISPOSITION: D. Diego Zamora disbarred for period of twenty months effective May 1, 1999,
nunc pro tunc, with automatic
reinstatement on probationary basis effective January 1, 2001.
COUNSEL: Virginia L. Ferrara, Chief Disciplinary Counsel, Albuquerque, NM, for the
Disciplinary Board.
Briggs F. Cheney, Albuquerque, NM, for Respondent.
JUDGES: PATRICIO M. SERNA, Chief Justice, JOSEPH F. BACA, Justice, PAMELA B. MINZNER,
Justice, PETRA JIMENEZ MAES, Justice, GENE E. FRANCHINI, Justice (not
participating).
OPINION:
[**31]
DISCIPLINARY PROCEEDING
PER CURIAM.
[*1] This matter came before the Court after
disciplinary proceedings conducted pursuant to the Rules Governing
Discipline, Rules 17-101 through 17-316 NMRA 2000, wherein respondent, D. Diego Zamora,
did not contest the factual allegations against him or the allegations that his
conduct was in violation of several of the Rules of Professional Conduct, nor
did he argue that he should not be
disbarred pursuant to Rule 17-206(A)(1). The only issues before the hearing committee,
the
disciplinary board, and this Court were (1) the length of the term of
disbarment to be imposed and (2) when
reinstatement could be sought under Rule 17-214(A).
[***2] The hearing committee unanimously recommended an eighteen-month period of
disbarment commencing May 1, 1999, nunc pro tunc, to be followed by an immediate
application for
reinstatement upon certain preconditions. The
disciplinary board panel was divided three
ways with one member
recommending the eighteen-month
disbarment, a second member
recommending a two-year period of
disbarment, and a third member
recommending
disbarment with no application for permission to apply for
reinstatement to be filed until a period of three years had elapsed, an approach consistent
with Rule 17-214(A).
[*2] We modify these recommendations and disbar D. Diego Zamora for a period of
twenty months effective May 1, 1999, nunc pro tunc, with automatic
reinstatement on a probationary basis effective January 1, 2001.
[*3] On April 29, 1999, the Lawyers' Assistance Committee of the State Bar of New
Mexico conducted an intervention in respondent's
practice of law due to concern that he was abusing crack cocaine. As a result of the
intervention, respondent agreed to enter a
recovery program; within two
hours of the termination of the intervention session, respondent was on his way
to Monroe,
[***3] Louisiana, where he admitted himself into the Palmetto
Addiction
Recovery Program. He voluntarily ceased the
practice of law at this time.
[*4] On June 29, 1999, while still in the
recovery program, respondent self-reported to the office of
disciplinary counsel that beginning in September 1998 and during his drug
addiction that led to the intervention and his entry into the
recovery program, he had
misappropriated money from his attorney
trust account. He represented that an audit of his
trust account would be conducted at his expense and that the audit results and the
underlying records would be provided to
disciplinary counsel. He further stated that he was making a sincere effort to repay his
clients. On October 6, 1999, the auditor's report was presented to
disciplinary counsel and showed that a total of $ 37,090 had been taken from a number of
respondent's clients. Based upon these facts, the
disciplinary charges alleged that respondent had violated several Rules of Professional
Conduct:
Rule 16-115(A) by failing to safeguard a client's property, Rule 16-804(C) by
engaging in conduct involving dishonesty, and Rule 16-804(H) by engaging in
conduct adversely reflecting upon
[***4] one's fitness to practice law. Respondent filed no answer denying either the
factual allegations or the allegations of
misconduct and consented to
disciplinary counsel's motion that they be deemed admitted pursuant to Rule 17-309(C). A
hearing was scheduled to consider any facts in aggravation or
mitigation of respondent's conduct.
[*5] Pursuant to Standards for Imposing Lawyer Sanctions, published by the American
Bar Association Center for Professional Responsibility, the only factors that
were considered to aggravate respondent's
misconduct were the presence of a dishonest motive and the fact that respondent had
substantial experience in the
practice of law. See ABA
Standards,
§ 9.22(b)
& (i) (1991) (amended 1992).
[*6]
[**32] With respect to
mitigating factors,
disciplinary counsel confirmed that respondent had no prior
disciplinary problems or complaints since his admission to the bar in 1983. See ABA
Standards
§ 9.32(a) (1991) (amended 1992). Following his self-reporting to the office of
disciplinary counsel but prior to the time charges were filed against him, respondent had
obtained a bank loan and voluntarily made full restitution to all clients whose
[***5] money he had taken. See ABA Standards,
§ 9.32(d) (1991) (amended 1992). Throughout the proceedings, respondent
cooperated fully with
disciplinary authorities and demonstrated genuine remorse for his conduct. See ABA
Standards,
§ 9.32(e) (1991) (amended 1992). He stated on several occasions that he believed
he deserved to be
disbarred for a lengthy period of time. See
ABA Standards,
§ 9.32(l) (1991) (amended 1992).
[*7] The ABA Standards also suggest that
mental disability or
chemical
dependency, including alcoholism or drug abuse, may be considered in
mitigation of
misconduct if (1) there is medical evidence that a respondent is affected by a
chemical
dependency or
mental disability, (2) the
chemical
dependency or
mental disability caused the
misconduct, (3) the respondent's recovery from the
chemical
dependency or
mental disability is demonstrated by a meaningful and sustained period of successful
rehabilitation, and (4) the recovery arrested the
misconduct and recurrence of that
misconduct is unlikely. See ABA Standards
§ 9.32(i) (1991) (amended 1992).
[*8] Respondent presented a substantial amount of testimony and other evidence
regarding
[***6] his
addiction and the residential and post-release treatment he had undergone. Dr. Steven
Wright, who is board certified in the fields of both family medicine and
addiction
medicine, testified that the
chemical
dependency experienced by respondent possessed all the features of a medical
disease because of the characteristic medical problems that occurred as a consequence
of the
disease and the predictable treatment outcome. The New Mexico Physicians' Assistance
Program, with which Dr. Wright is familiar, has a
recovery program success rate of over ninety percent. The assistance program has demonstrated
that following appropriate inpatient treatment and a return to work (emphasis
added) the elements to a successful recovery from
addiction consist of a program that (1) is mandatory, (2) requires regular participation
in a twelve step
recovery program, (3) incorporates
random
drug testing and/or
screening, and (4) requires participation for five years. The
random
drug testing and
screening is believed to be the key to the protection of the public that the
professional serves. Because of the nature of
chemical
dependency, the
random testing/screening is essential to assure that an
[***7]
individual will not escape detection in the event of a relapse.
[*9] In 1986, the State Bar of New Mexico instituted an assistance program for
attorneys suffering from
alcohol and drug
dependency, which was patterned after the New Mexico Physicians' Assistance Program. The
Lawyers' Assistance Program presently provides services that include
intervention, monitoring, and
drug testing and
screening by the New Mexico Council on
Alcohol and Drug
Dependency pursuant to a contract with the State Bar of New Mexico.
[*10] Before his release from the residential
recovery program, respondent entered into a written monitoring agreement developed as a joint
project of the Lawyers' Assistance Program and the
disciplinary board and designed to establish a formal
recovery program for a lawyer suffering from the
disease of
addiction. Under the terms of this agreement, respondent is required to (1) report to an
appointed attorney
monitor on a
regular basis, (2) abstain totally from the use of any mind-altering substances
and have the use of any prescribed medications monitored by a physician trained
in the field of
addiction, (3) attend twelve step meetings at least three to five times
[***8] weekly and accompany his attorney
monitor to at least two such meetings each month, and (4) submit to
random drug
screening.
[*11] Since his release from the residential
recovery program on August 29, 1999, respondent has fully complied with all of the terms of the
agreement. Additionally, he has voluntarily met with licensed psychologists to
address the personal and emotional
[**33] problems associated with the
disease of
addiction.
[*12] This Court has consistently held the position that
stealing client funds is perhaps the most egregious violation of a lawyer's
ethical responsibilities; it is a violation of the trust placed in lawyers by
their clients. A lawyer's
trust account should be held sacred; wilfully taking funds from
a
trust account cannot and will not be tolerated by this Court. In such cases,
disbarment is the appropriate sanction.
In re Kelly, 119 N.M. 807, 809, 896 P.2d 487, 489 (1995); see also
In re Hamar, 1997 NMSC 48, 123 N.M. 795, 945 P.2d 1013 (1997) (disbarring for minimum of three years an attorney who
misappropriated funds of numerous clients and consented to
disbarment but offered no
[***9] evidence in
mitigation of his
misconduct);
In re Rohr, 1997 NMSC 12, 122 N.M. 774, 931 P.2d 1390 (disbarring with no mention of minimum period an attorney who voluntarily reported
misappropriations and offered evidence in
mitigation but was unable to make restitution n1 );
In re Krob, 1997 NMSC 37, 123 N.M. 652, 944 P.2d 881 (disbarring for minimum of three years an attorney who failed to respond to charges of
misappropriating client funds and failed to participate in
disciplinary process);
In re Schmidt, 1996 NMSC 19, 121 N.M. 640, 916 P.2d 840 (disbarring for minimum of three years an attorney with prior
discipline, including period of suspension, who
misappropriated $ 10,000 in client funds, failed to participate in
disciplinary proceedings, and failed to make restitution).
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n1 Rule 17-214(A) of the Rules Governing
Discipline provides that
"unless otherwise stated in the order of
disbarment, a motion for permission to apply for
reinstatement may not be filed for a period of at least three (3) years from the effective
date of the
disbarment."
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
[***10]
[*13] On the other hand, we have repeatedly
stressed that the purpose of attorney
discipline is not to punish attorneys but to protect the public. See, e.g.,
In re Ordaz, 1996 NMSC 34, 121 N.M. 779, 918 P.2d 365;
In re Tapia, 110 N.M. 693, 799 P.2d 129 (1990);
In re Sullivan, 108 N.M. 735, 779 P.2d 112 (1989);
In re Nails, 105 N.M. 89, 728 P.2d 840 (1986). For this reason, the Court will weigh
mitigating against aggravating factors and seek to impose the
discipline necessary to guard the public, while at the same time to provide the attorney
with as much encouragement and opportunity for
rehabilitation as are warranted by the circumstances of the case.
[*14] In Kelly, this Court addressed the combined problem of
addiction and
misappropriation of client funds in the following manner:
Among the
mitigating circumstances is [respondent's] demonstration of recovery from
alcohol
addiction. During the period in which he converted client funds, [respondent] was
suffering from acute alcoholism. Although
addiction cannot provide a defense to unethical conduct, recovery from
[***11] such conditions as substance abuse or mental illness can be considered in
mitigation if the respondent can demonstrate a prolonged period of
rehabilitation. In February 1994, about the time the
disciplinary board began receiving complaints about his
misappropriation of client funds, [respondent] responded positively to a substance abuse
intervention conducted by members of the State Bar of New Mexico Lawyers'
Assistance Committee and other concerned individuals. [Respondent] sought help
for his
addiction by attending psychological counseling through Veterans Administration Hospital
and by attending Alcoholics Anonymous meetings once and sometimes twice a day.
[Respondent] has
demonstrated the requisite period of
rehabilitation necessary for this to be considered a
mitigating factor.
119 N.M. at 808, 896 P.2d at 488 (citations omitted). In addition to his proof of a significant period of
rehabilitation, other
mitigating factors included respondent's cooperation throughout the
disciplinary proceedings, his voluntary payment of partial restitution, his good
professional reputation, and his demonstration of remorse for his conduct.
[*15] In view of all
[***12]
mitigating factors, the hearing committee recommended that respondent be indefinitely
suspended for a minimum of three years with all except the first year of
suspension deferred. We declined to
[**34] accept the recommendation, reasoning that the willful
misappropriation of client funds by an attorney requires the sanction of
disbarment. Public confidence in the ability of our profession to self-regulate requires
no less. We did, however, take into consideration the
mitigating factors and exercised our authority under Rule 17-214(A) to
permit respondent to file a motion for permission to apply for
reinstatement after a period of two rather than three years provided that he made full
restitution, paid all costs of the
disciplinary proceeding, successfully completed the Multistate Professional Responsibility Examination,
and made a showing that he had maintained sobriety.
[*16] In the case at bar, counsel for respondent urged us to take a step beyond the
Kelly holding and disbar respondent retroactively beginning at the time he
ceased the
practice of law, reinstate him immediately on a probationary basis, and carefully
monitor him for a period of five years. In essence, counsel
[***13] urged this Court to follow the approach to
addiction utilized by the medical profession and permit respondent to resume his career
forthwith but under very stringent conditions, including immediate
disbarment for an additional three years should he fail to abide by any
terms of
probation.
[*17] As noted by one member of the
disciplinary board panel, a potential downside to this approach is the risk of sending a message
to the public and the profession that
addiction is a justification for stealing client funds or implying that we have adopted
a policy that an attorney who steals his or her clients' money will suffer
minimal consequences so long as he or she was under the influence of a
controlled substance at the time and has since abstained from using said
substance. We unequivocally disabuse anyone of this notion.
[*18] This Court is not retreating from our previously-held position that theft of
client funds will consistently result in
disbarment. Attorneys who steal from their clients will always bear the stigma of
disbarment because the fact and circumstances of any
disbarment are permanent matters of public record and available to the public. Secondly,
although
[***14] we reserve the right to shorten a period of
disbarment where an attorney has a previously unblemished record, has demonstrated
remorse, has made
restitution, has self-reported and cooperated with the
disciplinary process, has shown a causal connection between the
misconduct and a medical or mental condition, and has documented a significant period of
recovery, we also caution that Rule 17-214(A) authorizes this Court to disbar
an attorney for a period of time longer than three years if the circumstances
warrant. Finally, any decrease in the period of
disbarment will be coupled with strict conditions of supervised
probation at the time of
reinstatement.
[*19] Respondent is on a very short tether, as he should know from our remarks from
the bench during the hearing and from the language in the resultant order of
discipline. The terms of his
probation are rigid and the length of his
probation (five years) longer than what is generally imposed. Respondent has had his one
bite of the apple and we will not hesitate to impose an additional period of
disbarment should he violate any term of his
probation. In particular, should a
random drug test indicate the presence of any controlled
[***15] substance, our
response will not be a lenient one.
[*20] Now, therefore, it is ordered that respondent is
disbarred for twenty months, commencing retroactively to May 1, 1999;
[*21] It is further ordered that, pursuant to Rule 17-206(B), respondent shall be
automatically reinstated to probationary status for five years commencing
January 1, 2001, through December 31, 2005, on the following terms and
conditions:
(1) Respondent shall take and successfully pass the Multistate Professional
Responsibility Examination;
(2) Respondent shall successfully complete a long-term, in-patient treatment
program;
(3) Respondent shall continue with appropriate out-patient treatment consistent
with his release from the long-term, in-patient treatment program; and
(4) During the period of
probation, respondent shall continue to satisfy the requirements of the written
monitoring agreement, which outlines a program for his
[**35] recovery. The
agreement includes, but is not limited to, regular meetings with his attorney
monitor, participation in a twelve step
recovery program with a regularity of at least three to five meetings per week and a requirement
[***16] that he shall accompany his attorney
monitor to at least two of those meetings each month, and participation in
random
drug testing and
screening announced and coordinated by the New Mexico Council on
Alcohol and Drug
Dependency and the State Bar Lawyer Assistance Committee.
[*22] It is further ordered that during the period of
probation, respondent shall be supervised by an attorney approved by the office of
disciplinary counsel. Respondent shall meet with his
supervising attorney at times and places directed by the supervisor and shall follow all
reasonable directions in a prompt and satisfactory manner;
[*23] It is further ordered that respondent shall provide access to his
trust account information to his
supervising attorney and
shall pay for an annual audit of his
trust account as ordered by
disciplinary counsel;
[*24] It is further ordered that respondent shall pay his
supervising attorney an agreed-upon fee for the time spent in
supervising him. Payment of the
supervising attorney's fees shall be deemed a condition of respondent's
probation;
[*25] It is further ordered that respondent shall pay the costs of this
disciplinary proceeding in
[***17] the amount of $ 973.20 on or before June 30, 2001. Payment of costs shall be
deemed a condition of respondent's
probation;
[*26] It is further ordered that should respondent violate any of the terms and
conditions of
probation, or fail to seek
reinstatement pursuant to Rule 17-214(H) within three months of the conclusion of his
probationary period, respondent shall be held in contempt pursuant to Rule
17-206(G) and may be fined, censured, suspended,
disbarred, or subjected to any other sanction ordered by this
Court; and
[*27] It is further ordered that any failure to comply with the terms and conditions
of
probation shall be brought to the attention of this Court by way of a verified motion
for order to show cause filed by
disciplinary counsel and respondent shall be subject to the contempt powers of this Court
provided by Rule 17-206(G). Any violation shall be met with a policy of zero
tolerance and result in immediate revocation of the probationary status.
PATRICIO M. SERNA, Chief Justice
JOSEPH F. BACA, Justice
PAMELA B. MINZNER, Justice
PETRA JIMENEZ MAES, Justice
GENE E. FRANCHINI, Justice
(not participating)
