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In re Salazar

Supreme Court of New Mexico

May 16, 2019

IN THE MATTER OF DANIEL M. SALAZAR An Attorney Suspended from the Practice of Law Before the Courts of the State of New Mexico

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

          Jane Gagne Albuquerque, NM for Disciplinary Board

          Debra S. Doll Albuquerque, NM Law Works, LLC John A. McCall Albuquerque, NM for Respondent

          OPINION

          BARBARA J. VIGIL, JUSTICE

         I. INTRODUCTION

         {¶ 1} In this disciplinary case the Court addresses the flagrant and intentional failure of Daniel M. Salazar (Salazar) to comply with the Rules of Appellate Procedure, among other rules and orders of this Court. This case came before the Court upon the recommendation of the Disciplinary Board (the Board) to sustain charges and impose discipline against Salazar for multiple violations of the Rules of Professional Conduct. The Board's request centers on its conclusion that Salazar repeatedly failed to comply with certain Rules of Appellate Procedure relating to the timely filing of appellate pleadings. The Board concluded that Salazar violated Rule 16-101 NMRA (competence), Rule 16-103 NMRA (diligence), Rule 16-302 NMRA (failure to expedite litigation), and Rule 16-804(D) NMRA (engaging in conduct prejudicial to the administration of justice). The Board recommended a one-year deferred suspension of Salazar, during which time Salazar would be supervised on all appellate matters.

         {¶ 2} This Court adopted the Board's findings and conclusions with one exception and modified the Board's recommended discipline, indefinitely suspending Salazar for a period of no less than one year, effective thirty days from November 9, 2018. Salazar's history of disciplinary offenses relating to similar intentional misconduct and his refusal to acknowledge the wrongfulness of his conduct justified his prompt suspension. When Salazar failed to comply with both our order of suspension and the requirements for suspended attorneys under the Rules Governing Discipline, we held Salazar in contempt of court and increased his indefinite suspension to a period of no less than eighteen months.

         {¶ 3} We begin by explaining that attorneys must adhere to the rules of this Court as those rules serve to protect the interests of all clients and the equal administration of justice under the law. If one disagrees with the rules, there is a process by which court rules are amended. Ignoring them is not an option. Procedural gamesmanship in an effort to skirt the requirements of our rules cannot and will not be tolerated.

         II. BACKGROUND

         {¶ 4} Salazar has been practicing law in New Mexico for nearly twenty years with a focus on criminal defense. Since 2000, Salazar has been a contract attorney with the Law Office of the Public Defender (LOPD). This is not the first time Salazar has been subject to attorney discipline. Outside of these proceedings, Salazar has twice been admonished by the Board for his mismanagement of post-trial procedure.

         {¶ 5} Two Rules of Appellate Procedure are essential to understanding Salazar's misconduct in the instant proceedings, as well as his misconduct in the past: Rule 12-201 NMRA and Rule 12-208 NMRA. First, under Rule 12-201(A)(1)(b), a party must file a notice of appeal within thirty days of the judgment or order it wishes to appeal. Second, under Rule 12-208, for most types of appeals, trial counsel is responsible for "preparing and filing a docketing statement in the Court of Appeals or a statement of the issues in the Supreme Court" within thirty days of the filing of the notice of appeal. Rule 12-208(A)-(B). The docketing statement must meet certain requirements, all of which are outlined in Rule 12-208(D). Among those is the requirement that the docketing statement include "a statement of the issues presented by the appeal, including a statement of how they arose and how they were preserved in the trial court[.]" Rule 12-208(D)(4). At the crux of Salazar's professional misconduct is his refusal to comply with Rules 12-201 and 12-208. To provide context and additional support for the ultimate discipline we impose upon him, we first address Salazar's prior misconduct.

         A. Prior Professional Misconduct

         {¶ 6} In April 2015, Salazar accepted an informal admonition for failure to timely file a docketing statement in a client's appeal despite the Court of Appeals' order to do so.[1] As the contract public defender at trial, Salazar was responsible for filing a docketing statement with the Court of Appeals after his client filed a pro se notice of appeal. See Rule 12-208(A). Salazar did not file the docketing statement within the thirty-day deadline imposed by Rule 12-208(B). Only after a hearing to show cause before the Court of Appeals-at which Salazar argued that he did not believe an appeal was necessary-did he eventually file the docketing statement, six months after his client filed the notice of appeal. Because Salazar failed to comply with his client's wishes to appeal and ignored for some time an order from the Court of Appeals to file the docketing statement, Salazar was informally admonished by the Board for violating four Rules of Professional Conduct: Rule 16-101; Rule 16-102(A) NMRA (settlement authority); Rule 16-103; and Rule 16-804(D).

         {¶ 7} Salazar was again before the Board in May 2017. The Board issued a formal reprimand of Salazar for dilatory and incompetent post-trial practice related to another client's petition for writ of habeas corpus. See In re Salazar, Disciplinary No. 01-2016-733, Bar Bulletin, N.M. State Bar, June 7, 2017, at 15 (Formal Reprimand dated May 19, 2017). Salazar served as the contract public defender for purposes of his client's post-conviction habeas corpus proceedings. Id. Salazar entered his appearance on behalf of his client on March 28, 2002. Id. By that time, the client had already filed a petition for writ of habeas corpus and the State had filed its response. Id. Salazar failed to file his client's reply to the State's response for over four years. See id. In May 2006, the district court denied the petition for writ of habeas corpus. Id. One month after the district court's denial of the petition, Salazar filed his client's reply and a motion to reconsider the order denying the petition. Id. Over a period of two years, Salazar requested no less than six continuances of the hearing on his motion to reconsider. Id. He claimed that he needed more time to conduct discovery, yet as the Board found, he took no action to compel discovery from the State. Id. In December 2014, eight years after the district court's denial of the petition for writ of habeas corpus, Salazar stipulated on behalf of his client to a dismissal of the petition without prejudice. Id.

         {¶ 8} Six months later, Salazar's client filed a complaint with the Board alleging that Salazar had not communicated with him since January 2009. Id. Salazar claimed that he had withdrawn from representation "in or about January 2009." Id. However, the Board found that Salazar failed to inform his client of his withdrawal, never filed a motion to withdraw, and continued to act as defense counsel when he stipulated to the dismissal of the petition in 2014-five years after his claimed withdrawal. See id. The Board formally reprimanded Salazar for violations of Rule 16-101, 16-103, Rule 16-104 NMRA (failure to communicate), Rule 16-116(A) NMRA (failure to withdraw from representation), Rule 16-302, and Rule 16-804(D). In re Salazar, Bar Bulletin, N.M. State Bar, June 7, 2017, at 15.

         {¶ 9} Between the two instances of prior misconduct described, Salazar violated the same four Rules of Professional Conduct at issue in these proceedings: Rules 16-101, 16-103, 16-302, and 16-804(D). We determine that Salazar has shown an inability to learn from his past misconduct and the discipline imposed for such misconduct. This is evidenced by his continued failure, directly at issue in the instant proceedings, to manage his clients' appeals in a competent, diligent, and expeditious manner. As we will explain, his lack of respect for the Rules of Appellate Procedure, the Rules of Professional Conduct, and the Rules Governing Discipline is no longer tolerable. We now address Salazar's misconduct as it applies to the instant case: his representation of Jason Nowicki and Sean Godkin.[2]

          B. Misconduct at Issue

         1. Nowicki appeal

         {¶ 10} Salazar was Nowicki's attorney at his trial in February 2015. Nowicki was convicted of first-degree murder and other offenses. On February 1, 2016, the district court entered its judgment and sentenced Nowicki to life imprisonment plus eighteen years. Salazar did not file a notice of appeal on behalf of Nowicki within thirty days of the entry of judgment as required under Rule 12-201(A)(1)(b). In fact, Salazar did not file a notice of appeal until November 9, 2018, the day after this Court conducted oral argument in the instant proceedings. As such, the notice of appeal was filed nearly three years after Nowicki was sentenced.

         {¶ 11} In September 2017, Nowicki filed a complaint with the Board stating that he had not been able to contact Salazar and was concerned that no appellate motions had been filed on his behalf. The Board initiated an investigation as a result of Nowicki's complaint. In the course of its investigation of the Nowicki matter, disciplinary counsel discovered that Salazar had failed to comply with the Rules of Appellate Procedure in his representation of yet another client.

          2. Godkin appeal

         {¶ 12} Salazar represented Godkin at his trial in June 2016. That trial resulted in a mistrial, and a new trial was set for August 2, 2016. Salazar did not object to the new trial setting and did not obtain transcripts from the first trial to use at the new trial. Godkin was convicted of drug trafficking and possession charges at the second trial. Salazar timely moved for a new trial based on the expeditious setting of the second trial date, his inability to obtain transcripts from the first trial, and an alleged relationship between the trial judge and ...


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