United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER IMPOSING MONETARY
PENALTY ON ATTORNEY DANIEL M. SALAZAR
MATTER is before the Court following a hearing held
on July 3, 2018 at which Defendant's attorney, Daniel M.
Salazar, was ordered to show cause for why he should not be
sanctioned for his failure to appear at a Call of the
Calendar on June 28, 2018. At the hearing, the Court orally
imposed a $600 monetary penalty on Mr. Salazar. This Order
constitutes the Court's written findings of facts and
conclusions of law.
courts have the inherent authority to control admission to
their bars and to discipline attorneys who appear before
them. See Chambers v. NASCO, Inc., 501 U.S. 32, 43,
(1991) (noting that inherent district court powers include
authority to “control admission to its bar and to
discipline attorneys who appear before it”) (citing
Ex parte Burr, 22 U.S. (9 Wheat.) 529, 531, 6 L.Ed.
152 (1824)). “Article III courts were imbued with an
array of ‘inherent powers' in performing their
case-management function from the moment of their
establishment, powers never specifically enumerated in the
Constitution or in legislative enactments, yet necessary to
the exercise of all other[ ] [enumerated judicial
powers].” United States v. Kouri-Perez, 187
F.3d 1, 7 (1st Cir. 1999) (citing United States v.
Hudson, 11 U.S. (7 Cranch) 32, 34, 3 L.Ed. 259 (1812)).
“These implicit powers include the judicial authority
to sanction counsel for litigation abuses which threaten to
impugn the district court's integrity or disrupt its
efficient management of the proceedings.”
Kouri-Perez, 187 F.3d at 1 (citing
Chambers, 501 U.S. at 43).
particular, courts may impose both monetary penalties and -
more drastic - disbarment without a finding of contempt as
part of this inherent power. See e.g. Ex parte
Robinson, 86 U.S. (19 Wall.) 505, 512, 22 L.Ed. 205
(1873) (disbarment); United States v. Romero-Lopez,
661 F.3d 106, 107-08 (1st Cir.2011) (monetary penalties).
Consequently, a court may punish an attorney's failure to
appear as part of a court's inherent power to discipline
attorneys appearing before it. In considering what discipline
to impose on an attorney, district courts have “an
array of options, ” Kouri-Perez, 757 F.2d at
8, and “flexibility to equitably tailor punishments
that appropriately fit the conduct.” In re
Smothers, 322 F.3d 438, 442 (6th Cir. 2003). Generally
speaking, district courts should “deploy the least
extreme sanction reasonably calculated to achieve the
appropriate punitive and deterrent purposes.”
Kouri-Perez, 187 F.3d at 8.
Salazar entered this case as retained counsel for Defendant
on July 26, 2017. Since Mr. Salazar's appearance in the
case, Mr. Salazar's litigation activity has been
remarkable for what he has not done rather than what he has
done. For example, aside from a motion to modify his
client's conditions of release, the only motions Mr.
Salazar has filed have been motions to continue trial - and
at least one of those motions was filed late. Nevertheless,
the Court has granted all five motions to continue, and has
held two Calls of the Calendar in this case. Mr. Salazar
failed to appear at each. On August 17, 2017, for instance,
the Court set a Call of Calendar on October 12, 2017. Mr.
Salazar failed to appear at that Call of the Calendar,
resulting in a waste of time for all those who were present -
including opposing counsel, the court reporter, the courtroom
deputy, and the judge. Following Mr. Salazar's
non-appearance, the Court by written letter asked Mr. Salazar
to explain why he failed to appear and why Mr. Salazar filed
a late motion to continue. The Court set aside time out of
its busy schedule for Mr. Salazar to visit chambers and hear
his account of events. The Court imposed no penalty against
Mr. Salazar at that time, but stressed to him the importance
and significance of attending scheduled appearances.
admonition was unsuccessful. One June 4, 2018 the Court set
its second Call of the Calendar on June 28, 2018. Once again
opposing counsel was present, as was the Court and its staff.
Mr. Salazar, however, was not present. This being Mr.
Salazar's second failure to appear, the Court sua
sponte set a show cause hearing on July 3, 2018 to
determine why Mr. Salazar missed his scheduled appearance,
and transmitted a copy of its show cause order to Mr.
Woolweber. Mr. Salazar appeared at the hearing, as did
opposing counsel. At the hearing, Mr. Salazar explained that
his new or temporary staff members were unfamiliar with the
Court's electronic filing system and were not properly
calendaring Mr. Salazar's appointments in federal court.
But Mr. Salazar correctly recognized that attending his
scheduled hearings is ultimately his responsibility.
hearing Mr. Salazar's rendering of events and soliciting
input from opposing counsel, the Court imposed a $600 fine on
Mr. Salazar. That amount was arrived at by calculating Mr.
Salazar's hourly fee of $150 dollars multiplied by four
hours - roughly the cost of delay to the Court by time wasted
in the courtroom and time spent monitoring Mr. Salazar's
behavior, including holding the show cause hearing and
receiving Mr. Salazar in chambers. Simply put, the Court
cannot operate in an effective manner if counsel does not
appear to scheduled hearings. Mr. Salazar failed to adhere to
the Court's first admonition to monitor his appointments.
In light of that failure, the Court believes that at this
stage imposition of a $600 fine represents “the least
extreme sanction reasonably calculated to achieve the
appropriate punitive and deterrent purposes, ”
Kouri-Perez, 187 F.3d at 8, which in this instance
is to maintain the dignity of the Court and respect for all
persons present and to timely administer justice.
IS THEREFORE ORDERED that Attorney Daniel M. Salazar
is to pay a $600 fine within 30 days of entry of this
Memorandum Opinion Order payable by cashier's check, bank
or postal money order to the U.S. District Court Clerk, 333
Lomas Blvd. NW, Albuquerque, New Mexico 87102. The fine shall
be applied to the Federal Bench and Bar fund.