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In re Dixon

Supreme Court of New Mexico

January 17, 2019

IN THE MATTER OF ERIC D. DIXON An Attorney Suspended from the Practice of Law in the Courts of the State of New Mexico

          Jane Gagne Albuquerque, NM for Disciplinary Board Gary C. Mitchell Ruidoso, NM for Respondent

          OPINION

          PETRA JIMENEZ MAES, JUSTICE.

         {¶1} This opinion follows disciplinary proceedings against attorney Eric D. Dixon. The Disciplinary Board found that Dixon, among other things, knowingly made false statements to the Ninth Judicial District Court and later to Disciplinary Counsel related to the representation of his client Jessica Aguilar (Jessica). The false statements began after the district court awarded summary judgment against Jessica on claim preclusion grounds, due to Dixon's prior voluntary dismissal with prejudice of a federal lawsuit that he had filed on behalf of "Jessie Aguilar." The Board concluded that Dixon violated Rule 16-101 NMRA (competence), Rule 16-301 NMRA (meritorious claims and contentions), Rule 16-303 NMRA (candor toward the tribunal), Rule 16-801 NMRA (bar admission and disciplinary matters), and Rule 16-804 NMRA (misconduct), and recommended that he be suspended from the practice of law for one year.

         {¶2} We adopted the Board's findings and conclusions with one modification, which we explain later in this opinion. We indefinitely suspended Dixon from the practice of law for a period of no less than nine months, effective thirty days from November 9, 2018. We further ordered that before filing a petition for reinstatement, Dixon must complete ten hours of ethics continuing legal education classes, with at least half of the credit earned for in-person classes, and must take and pass the Multistate Professional Responsibility Examination with a minimum scaled score of eighty. We ordered Dixon to pay the costs of his disciplinary proceedings and now issue this formal opinion.

         {¶3} We write to emphasize to the bench, bar, and public that a lawyer's duty of candor is clear and unequivocal: "Attorneys are officers of the court, and our system of justice works only if the courts can rely on attorneys to fulfill their duty of candor to the tribunal." In re Chavez, 2013-NMSC-008, ¶ 26, 299 P.3d 403. This case illustrates how easily a lawyer's decision to pursue a litigation strategy that is less than truthful can lead to multiple violations of the duty of candor, to the detriment of the legal system, the legal profession, and the public.

         I. BACKGROUND

         {¶4} Dixon, who has been a sole practitioner since 1990 focusing on criminal defense and civil rights work, does not come before us with a clean slate. He was the subject of a public censure by this Court for an unrelated incident that occurred in 2011. See In re Dixon, S-1-SC-33713, Bar Bulletin, N.M. State Bar, Sept. 2, 2015, at 16 ¶ 2 (Public Censure filed Aug. 24, 2015). In that proceeding, several witnesses testified that they saw Dixon honk his horn and accelerate his car toward a Ninth Judicial District Court judge who was crossing the street. Id. Substantial evidence showed that Dixon "knew it was [the judge] who was crossing the street and purposefully drove his vehicle in a manner designed to frighten and harass him." Id. ¶ 4. In our public censure of Dixon, we observed that his conduct "strikes at the very core of our legal system's reliance on a professional, respectful relationship between the bench and bar to ensure the effective administration of justice." Id. ¶ 1. We admonished Dixon for "engag[ing] in threatening and unprofessional conduct," and we "caution[ed] him against engaging in such irresponsible and unprofessional behavior in the future." Id. ¶¶ 1, 10. Dixon's conduct that led to this proceeding, much of which occurred after his public censure, suggests that he did not heed our warning.

         {¶5} To understand the events that resulted in Dixon's suspension in this proceeding, one must ask, who is Jessie Aguilar? Dixon answered that question in an e-mail to opposing counsel on June 11, 2015: "There is no Jessie Aguilar[;] there is a Jessica Aguilar . . . ." That statement serves as the inflection point in this case. Before June 11, 2015, Dixon's conduct was, at best, extremely careless and sloppy[1]; afterwards, his conduct became increasingly deceptive until he made the false statements at issue in this proceeding. We explain, drawing from the Board's findings of fact and viewing the evidence in the light most favorable to those findings. See In re Bristol, 2006-NMSC-041, ¶ 28, 140 N.M. 317, 142 P.3d 905.

         {¶6} In October of 2013, Dixon entered into separate contingency fee agreements with Aguilar and nine male individuals. At about the same time, Dixon submitted tort claims notices to the Roosevelt County Clerk on behalf of Jessica and his nine male clients. The notice on Jessica's behalf pertained to an incident while she was an inmate at the Roosevelt County Detention Center (RCDC) in which she was allegedly "forced to endure a body cavity search against her wishes" by two unnamed female RCDC employees. The notices for Dixon's nine male clients alleged that, while they were inmates at the RCDC, they had been involved in "one or more of the pepper ball incidents" at the hands of Officer James Andes. Dixon did not enter into a contingency fee agreement with or file a tort claims notice on behalf of anyone specifically named Jessie Aguilar.

         A. The Federal Lawsuit

         {¶7} Dixon filed a complaint in April of 2014 in the United States District Court for the District of New Mexico (the Federal Lawsuit). The complaint named Officer Andes and the Roosevelt County Board of County Commissioners as defendants and alleged that on September 26, 2013, Officer Andes had "fired at least five rounds of pepper balls" into a day room at the RCDC, injuring the inmates who were present. The caption of the complaint named ten individuals as plaintiffs: Dixon's nine male clients and a tenth person identified as "Jessie Aguilar." The body of the complaint alleged various civil rights violations and tort claims against the defendants and included specific allegations about only two of the plaintiffs, neither of whom was Jessie Aguilar.

         {¶8} In the early stages of the Federal Lawsuit, all indications were that Jessie Aguilar was a male inmate who had been present during the pepper ball incident alleged in the complaint. For example, Dixon used masculine pronouns to refer to Jessie Aguilar in Dixon's initial disclosures and in his portion of the joint status report filed with the court. Further, in October of 2014, Dixon filed a motion to amend the complaint that included a proposed first amended complaint (FAC). The court never gave leave to file the proposed FAC, which included new details about the alleged abuses and injuries suffered by four more of the plaintiffs. Like the original complaint, the proposed FAC mentioned Jessie Aguilar only in the case caption.

         {¶9} Beginning in November of 2014, clues about Jessie Aguilar's identity began to emerge as the Federal Lawsuit proceeded. On November 7, Dixon e-mailed opposing counsel that he had lost contact with five of his clients, including Jessie Aguilar. But later that month, Dixon's assistant faxed a release for Jessica's medical records-signed "Jessie Aguilar"-to opposing counsel. Similarly, in January of 2015, Dixon e-mailed opposing counsel a list of the plaintiffs' addresses, including the address of "Jessica Aguilar," and stated that "Jessica Aguilar" was available for deposition "here locally." And in February of 2015, Dixon's assistant instructed Jessica to answer interrogatories addressed to Jessie Aguilar, and Jessica's answers were served on opposing counsel. The case caption on the certificate of service for the answers and on a few subsequent pleadings included the name "Jessica Aguilar" instead of "Jessie Aguilar." The answers also included a verification signed by Jessica declaring under oath that she was a plaintiff in the Federal Lawsuit. The answers described Jessica's injuries as "injury to eyes from the pepper ball spray; [and] depression due to possible PTSD," with no reference to injuries resulting from a body cavity search.

         {¶10} The Board made several findings relevant to this time period. First, in late 2014 and early 2015 Dixon traveled extensively to Houston, Texas to assist his elderly parents. Dixon's father succumbed to illness and died in February of 2015. Further, no evidence was presented that Dixon knew that his assistant had faxed Jessica's medical release to opposing counsel. Likewise, Dixon did not personally sign Jessica's interrogatory answers, and no evidence was presented that he had reviewed the answers before they were served on opposing counsel. Dixon's assistant, who is related to Jessica by marriage, undertook those actions to help Dixon. Additionally, Dixon's assistant changed "Jessie" to "Jessica" in the case caption on the certificate of service for the interrogatory answers, and Dixon likely copied and pasted the same caption into subsequent pleadings.

         {¶11} The Federal Lawsuit culminated in settlement negotiations in early 2015. Dixon asserted Jessica's claims to opposing counsel as part of the negotiations, and the defendants offered to settle Jessica's claims for $1, 000, which Jessica rejected. Dixon then sent the June 11 e-mail described above, in which he informed opposing counsel, "There is no Jessie Aguilar[;] there is a Jessica Aguilar and her claim was not included in the complaint." Dixon further stated,

I will agree to dismiss Jessie Aguilar with prejudice with the understanding that I can bring a law-suit in the name of Jessica Aguilar. She claims that her POD was shot with pepper balls around the same time. She put on her contact lens which had film on them and burned her eyes. In addition, she was taken to the public health department by two jail guards and had a pelvic exam done while both guards viewed the procedure which was very humiliating to her.

         Opposing counsel refused to agree that dismissing Jessie Aguilar would not prejudice Jessica from filing a subsequent lawsuit in state court. Nonetheless, on June 16, 2015, Dixon filed a notice of dismissal with prejudice "of all claims . . . that were brought or could have been brought by Jessie Aguilar." No settlement monies were paid to Jessica as a result of the Federal Lawsuit.

         B. The State Lawsuit

         {¶12} Ten days later, Dixon filed a complaint on Jessica's behalf in the Ninth Judicial District Court for Roosevelt County (the State Lawsuit). The complaint named as defendants the Roosevelt County Board of County Commissioners and "Jane Does I and II, in their official capacities as Detention Officers." The complaint alleged that Jessica was forced to undergo a pelvic exam without her consent "apparently to look for contraband." It further alleged that two female RCDC employees had remained in the room while a nurse performed the examination and asked ...


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