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In re Venie

Supreme Court of New Mexico

May 11, 2017

IN THE MATTER OF D. CHIPMAN VENIE

         An Attorney Disbarred from the Practice of Law Before the Courts of the State of New Mexico

          Jane Gagne for Disciplinary Board

          D. Chipman Venie Respondent

          OPINION

          EDWARD L. CHAVEZ, Justice

         {1} Attorney D. Chipman Venie was permanently disbarred from the practice of law on January 18, 2017 for actions arising from his representation of three clients. In re Venie, No. S-1-SC-36175, amended order at 2 (N.M. Sup. Ct. Jan. 18, 2017) (non-precedential). Venie counseled the first client, L.A., to bribe witnesses and offered to deliver the bribery payment to the witnesses. Venie also unnecessarily revealed confidential communications from L.A. in a fee dispute case between them, and made material misrepresentations to tribunals and the Disciplinary Board. In representing the second client, R.C., Venie converted money for his own use that was provided to him by R.C.'s parents for the sole purpose of posting a bond for R.C. With respect to the third client, A.C., Venie filed a lien against the property of A.C.'s mother to secure a fee owed to him by A.C.

         {2} The disciplinary charges against Venie were addressed in two consolidated cases. The first is Disciplinary Board Case No. 04-2015-720 (Case 720) involving L.A. The second is Disciplinary Board Case No. 01-2016-737 (Case 737) involving both R.C.'s and A.C.'s cases. Each Disciplinary Board hearing committee entered findings of fact and conclusions of law, and recommended that Venie be disbarred. The cases were consolidated, and the Disciplinary Board panel adopted each hearing committee's findings of fact and concurred with their recommendation that Venie be disbarred.

         {3} We review the factual findings for substantial evidence and the Disciplinary Board's legal conclusions and recommendations for discipline under a de novo standard of review. See In re Bristol, 2006-NMSC-041, ¶¶ 18, 26, 28, 140 N.M. 317, 142 P.3d 905 (per curiam). We hold that the findings of fact are supported by substantial evidence and that the recommendation of permanent disbarment is appropriate in this case. We have chosen to write an opinion in this case primarily to address Venie's defenses rather than to catalogue his myriad violations.

         I. DISCUSSION

         A. Case 720

         {4} In Case 720, Venie raises two defenses that merit discussion. First, he asserts that the charge regarding counseling L.A. to bribe witnesses is barred by the four-year limitations period under Rule 17-303 NMRA (1994) because his alleged violations occurred on May 22, 2011 and the charges were not filed until September 9, 2015. Second, he contends that his disclosure of earlier confidential communications with L.A. in a fee dispute case was permissible to attack L.A.'s credibility and to illustrate the difficult issues he faced when representing him. We address these arguments in turn.

         {5} The procedural history of Case 720 is relevant to our disposition of the limitations period issue. On April 20, 2015, the Disciplinary Board opened Case 720 and alleged that Venie had disclosed L.A.'s confidences in a public pleading filed in response to a lawsuit by L.A. L.A.'s lawsuit primarily related to a dispute about accounting of fees and property L.A. had provided as payment to Venie throughout Venie's representation of L.A. The original disciplinary complaint also alleged in the alternative that Venie had filed frivolous pleadings and made misrepresentations to both the district court and the Disciplinary Board.

         {6} On September 9, 2015, disciplinary counsel amended the complaint to include a count asserting that Venie had counseled L.A. to bribe witnesses. The new charges were based on a May 22, 2011 recording between Venie and L.A., which disciplinary counsel obtained from Venie during discovery.

         {7} Venie contends that the amended complaint is barred by the limitations period. Venie relies on the 1994 version of the limitations period under Rule 17-303, which stated:

Except in cases involving theft or misappropriation, conviction of a crime, or a knowing act of concealment, no complaint against a person subject to these rules shall be considered by the board unless a written complaint is filed with or initiated by chief disciplinary counsel in accordance with these rules within four (4) years from the time the complainant knew or should have known the facts upon which the complaint is filed.

         Venie argues that the limitations period ran on or about May 22, 2015, which was four years after May 22, 2011, when the conversation between him and L.A. occurred. Venie contends that the 2013 amendment to Rule 17-303, which eliminated the limitations period defense, does not apply retroactively to acts that occurred before the current rule's effective date of December 31, 2013.

         {8} Contrary to Venie's assertions, none of the disciplinary charges against him are barred. Before the amendment, Rule 17-303 provided a limitations period, which is not strictly a statute of limitations, but even if we were to treat it as a rigid statute of limitations, the 2013 amendment to Rule 17-303 eliminating the limitations period nevertheless applies to Venie's conduct because Venie does not have a vested right in the application of the former limitations period. See State v. Morales, 2010-NMSC-026, ¶ 1, 148 N.M. 305, 236 P.3d 24 (noting that the abolishment or extension of a limitations period "cannot revive a previously time-barred prosecution, " but "it can extend an unexpired limitation period because such extension does not impair vested rights acquired under prior law, require new obligations, impose new duties, or affix new disabilities to past transactions"). For Venie to have a vested right in the 1994 limitations period, the facts giving rise to the disciplinary complaint would have had to occur at least four years before the 2013 amendment. Grygorwicz v. Trujillo, 2006-NMCA-089, ¶¶ 20-21, 140 N.M. 129, 140 P.3d 550 (holding that an amendment providing an extension of the statute of limitations applied to conduct that occurred before the amendment was enacted because the cause of action was not time-barred by the preexisting law, and therefore the defendant had no vested right in a statute of limitations defense). Venie's conduct occurred on May 22, 2011, nineteen months before the effective date of the 2013 amendment to the limitations period. Accordingly, Venie had no vested right in a limitations period defense under the 1994 version of Rule 17-303, and therefore the amendment permissibly extended an unexpired limitation period. Morales, 2010-NMSC-026, ¶ 1; Grygorwicz, 2006-NMCA-089, ¶ 20. We conclude that the amendment abolishing the limitations period applies to Venie's conduct, and that the charges against Venie are not time-barred and can be properly reviewed by this Court. We now turn to the merits of Case 720.

         1. Counseling his client to bribe witnesses

         {9} Venie represented L.A. on felony charges which alleged that L.A. engaged in incest, criminal sexual contact, and criminal sexual penetration of his granddaughter (Granddaughter). Venie recorded a conversation he had with L.A. on May 22, 2011 during which they discussed confrontations L.A. had with his son (Son), who is Granddaughter's father, and Granddaughter, despite a court order prohibiting L.A. from having contact with Granddaughter and Son.

         {10} The following excerpts from the transcript of the recorded May 22, 2011 conversation (emphasis added) provide sufficient evidence to support the allegations that Venie counseled L.A. to bribe witnesses and offered to assist him with delivering the bribe.

Venie: But [Son] and myself are bending over backwards to try and save you . . . . Page 2, lines 21-22
Venie: If you don't lay off [Son], you're going to end up in prison, dying there, okay, and you're going to end up probably getting raped to death in prison, all right?

Page 2, line 25 to page 3, line 3

Venie: [Son], right now, is in Arizona or on his way to Arizona, and in his hand is paperwork that could get me disbarred, okay? And he could get in serious trouble, as well. And-and [another witness who had told the police L.A. was having a sexual relationship with Granddaughter] could get in serious trouble, as well. All three of us have decided to put our lives at risk to save you, okay?

Page 3, lines 6-10

Venie: If [Son] turns sideways on us, you're going to die in prison. If [Granddaughter] turns sideways on us, you're going to die in prison.

Page 3, lines 12-14

Venie: Maybe you should think-maybe you should think about paying them [Son and Granddaugh ter] both off, okay? Now, even me suggesting (inaudible) gets me disbarred. But you see how far I'm willing to go-
L.A.: I am paying them off. Page 12, lines 2-6
Venie: Do you see how far I'm willing to go to help you? I'm willing to put my own livelihood, everything you see around here, on the line to help you.

Page 12, lines 8-10

Venie: [A]ll I know is if you don't kiss these people's ass and make them happy over the next year and a half or two while this case is pending, they're going to fucking fry you for it. Okay?

Page 15, lines 10-13

Venie: You know, all these people, every one of them could sink your ass, and you're still antagonizing them. Please, stop doing that.

Page 16, lines 7-9

Venie: And what I'm-and what I'm telling you is-and I can't believe I'm saying this, but you might want to just pay [Son and Granddaughter] off, and that's it. I mean, you might want to start thinking about (inaudible).

Page 39, lines 12-16

Venie: And (inaudible)-and if it's something you want to do, I can make that happen for you and you would never have to give it directly to them. I would do it, and then that would be that.

Page 39, lines 19-22

         {11} The above exchanges between Venie and L.A. support the conclusion that Venie violated Rule 16-102(D) NMRA, which states: "A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent or misleads the tribunal." Venie's advice to L.A. that he should consider paying off his accusers and the State's primary witnesses against L.A. unequivocally demonstrated Venie's intent to convince his client to bribe witnesses. Not only did Venie repeat his advice to L.A., he offered to help carry out the bribery. Venie presciently told ...


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