Attorney Suspended from the Practice of Law Before the Courts
of the State of New Mexico.
Christine E. Long Albuquerque, NM for Disciplinary Board.
Padilla Albuquerque, NM Respondent.
Barbara J. Vigil, Justice.
With this opinion, we address the failure of Rafael Padilla
to competently and diligently defend his client against
various criminal charges in violation of the New Mexico Rules
of Professional Conduct, Rules 16-100 to -805 NMRA. The Court
was presented with this case upon the recommendation of the
Disciplinary Board (the Board) to sustain charges and impose
discipline based on the Board's conclusion that Padilla
violated Rules 16-101 (competence), 16-103 (diligence), and
16-804(D) (engaging in the administration of justice). The
Board recommended an indefinite suspension of Padilla for a
period of no less than one year.
The Court adopted the Board's findings of fact following
oral argument in this matter. Upon review, we adopt the
Board's conclusions of law in their entirety. Modifying
the Board's recommended discipline, we indefinitely
suspended Padilla from the practice of law for no less than
one year, subject to partial deferment and conditions on his
reinstatement as explained in this opinion and in our order
of July 9, 2019. Though Padilla has fully admitted the facts
underlying his misconduct and has taken significant remedial
measures to improve his practice, we must impose discipline
to avoid reoccurrence of his grave errors.
Padilla has been licensed to practice law in New Mexico for
thirty-six years. He has a prior disciplinary offense for
violating the rules of trust accounting. Padilla's
private practice in Albuquerque focuses primarily on criminal
defense. Beginning in 2013, Padilla defended Dennis Samuel
Miera (Defendant) against charges of criminal sexual
penetration of a minor, criminal sexual contact of a minor,
and bribery of a witness. State v. Miera,
2018-NMCA-020, ¶¶ 1-2, 413 P.3d 491. A jury found
Defendant guilty of all counts charged following a trial in
December 2014, during which Padilla committed several serious
errors. Id. ¶¶ 3-4, 46. Defendant appealed
his convictions claiming ineffective assistance of counsel
and seeking a new trial based largely on Padilla's
failures at his first trial. Id. ¶ 1. The Court
of Appeals granted a new trial, concluding that Defendant had
made a prima facie showing of ineffective assistance of
counsel and that cumulative error had denied him a fair
trial. Id. ¶¶ 44, 46, 50. Defendant was
incarcerated for approximately three years before his
conviction was reversed and his case remanded for a new
Following the Court of Appeals' opinion detailing
Padilla's deficiencies in representing Defendant, the
Board initiated an investigation and ultimately charged
Padilla with professional misconduct in August 2018. Padilla
did not contest the Board's charges and admitted all
factual allegations contained in the specification of
failed to provide competent and diligent representation to
Defendant in four instances. First, he failed to acquaint
himself with the relevant law and to take the steps necessary
to meaningfully oppose the State's impeachment of
Defendant using a psychological evaluation prepared for
purposes of plea negotiations. Id. ¶¶
6-12. Second, Padilla failed to investigate potentially
exculpatory evidence that the alleged victim had accused her
stepfather of similar abuse and then recanted her
allegations. Id. ¶¶ 19-22, 34-36. Third,
Padilla elicited testimony from an investigating officer
regarding Defendant's sexual desires and failed to cure
the officer's improper and unsupported characterization
of Defendant as a "sexual deviant." Id.
¶ 37. Fourth and finally, Padilla failed to adequately
investigate and research the admissibility of a report by the
Children, Youth and Families Department (CYFD)-a report that
he could have used to question the alleged victim's
credibility. Id. ¶¶ 38-39. Thus, Padilla
was not able to introduce the report or successfully move its
admission, in whole or in part. Id. We describe each
instance of misconduct in turn.
As part of plea negotiations, Defendant completed a
psychological evaluation that was documented for use in
determining his sentence. Id. ¶ 6.
Defendant's responses in the evaluation essentially
amounted to an admission that he engaged in improper sexual
contact with the alleged victim. See id. ¶ 11.
The evaluation also contained a statement that Defendant
"continued to keep the [alleged victim and her brother]
overnight through the time of the alleged event," a fact
which Defendant disputed at trial.
The psychological evaluation was given to the State before
trial. Id. ¶ 6. The State did not attempt to
introduce the evaluation in its case in chief. See
Miera, 2018-NMCA-020, ¶¶ 8, 14 ("Rule
11-410(A)(5) NMRA prohibits 'a statement made during plea
discussions' from being admitted against the defendant
where the discussions did not ultimately result in a guilty
plea."). Instead, the State notified the district court
and Padilla that it planned to use the evaluation to impeach
Defendant should he testify in his own defense. Id.
¶ 8. The State cited State v. Watkins,
1979-NMCA-003, 92 N.M. 470, 590 P.2d 169, to support its
position that the evaluation was admissible impeachment
evidence. Miera, 2018-NMCA-020, ¶ 8.
Padilla responded that he had not seen the evaluation and was
not previously made aware that the State intended to
introduce it to impeach Defendant. Id. The State
replied that it had discussed the evaluation "a number
of times" with Padilla before the trial.
The district court recessed to allow the parties "to
gather written authorities for use or nonuse of the
material." Id. ¶ 9 (internal quotation
marks omitted). When the district court reconvened, Padilla
was unable to offer any authority to support the exclusion of
the psychological evaluation for impeachment purposes,
conceding that the holding of Watkins permitted the
State to use the evidence to impeach Defendant.
Miera, 2018-NMCA-020, ¶ 9. This
response demonstrates Padilla's lack of competence in
this area of our evidentiary rules and case law. As we will
explain, the State's reliance on Watkins is
misplaced, and our precedent interpreting Rule 11-410 clearly
prohibits the use of statements made during plea negotiations
for impeachment purposes.
Before making its ruling, the district court asked Padilla to
confirm that he did not locate any authority to rebut the
State's argument that the evaluation could be used to
impeach Defendant's testimony. Miera,
2018-NMCA-020, ¶ 9. Padilla confirmed that he
did not and added that he "had very little knowledge of
this report, and he certainly didn't have a copy of
it." Id. (alteration and internal quotation
marks omitted). The district court ruled that the State could
use the evaluation to impeach Defendant but offered to
instruct the jury that it could "only use the evaluation
for purposes of credibility and impeachment."
Id. (alteration and internal quotation marks
omitted). Padilla never requested this limiting instruction,
even after the State used the evaluation to elicit damaging
admissions from Defendant on cross-examination. Id.
¶¶ 9, 11.
Defendant testified at trial that he did not recall keeping
the alleged victim and her brother overnight at the time of
the alleged abuse and had never admitted that he abused the
alleged victim. Id. ¶¶ 10-11. The State
attempted to refresh Defendant's memory, giving him the
documentation of the psychological evaluation to review. The
State then used the evaluation to impeach Defendant's
testimony by asking Defendant how he responded to certain
statements in the evaluation. Id. For example, the
State asked, "Did you respond in the affirmative or
otherwise indicate that you made a mistake which you
regret?" and "Did you respond in the affirmative or
otherwise indicate that you slipped one time?"
Id. ¶ 11. Defendant answered yes to each of the
State's questions consistent with the documentation of
the psychological evaluation. Id.