In Re: Suarez-Jimenez v. ( 2016 )

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 15‒8022
IN RE MANUEL R. SUÁREZ-JIMÉNEZ,
Respondent.
ON ORDER TO SHOW CAUSE WHY RECIPROCAL
DISCIPLINE SHOULD NOT BE IMPOSED
Before
Torruella, Thompson, and Kayatta,
Circuit Judges.
Manuel R. Suárez-Jiménez pro se.
December 20, 2016
Per Curiam. The Supreme Court of Puerto Rico
indefinitely suspended respondent Manuel R. Suárez-Jiménez
("Suárez") from the practice of law, prompting this court to issue
an order to show cause why it should not impose reciprocal
discipline. Having carefully considered the arguments Suárez
advanced in his brief and during his hearing before our
disciplinary panel, we now order that Suárez be indefinitely
suspended from practice before this court.
On December 17, 2014, the Supreme Court of Puerto Rico
ordered the indefinite suspension of Suárez based on his violations
of the Puerto Rico Professional Ethics Code. In re Suárez Jiménez,
2014 TSPR 143 (P.R. 2014) (per curiam). Those violations occurred
in the course of Suárez's representation of the plaintiffs in a
lawsuit filed in the United States District Court for the District
of Puerto Rico, captioned Rivera-Carmona v. American Airlines, No.
09-CV-1062 (D.P.R. 2009). After the plaintiffs initiated that
lawsuit, the defendant achieved a transfer of venue to the United
States District Court for the Southern District of Florida, Miami
Division. The transfer created an immediate problem for Suárez--he
was not licensed in Florida, and not otherwise permitted to appear
by himself in that United States District Court. Rather than doing
what any reasonable lawyer would do in such a situation (notify
the court that some time was needed for his clients to secure local
Florida counsel), Suárez informed the court and his clients that
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he intended to file a motion for remand, which he likely could not
do on his own. Worse yet, he then did nothing to preserve his
clients' lawsuit, which the district court in Florida eventually
dismissed without prejudice in April of 2010.
Nine months later, one of the plaintiffs swore a
grievance before the Supreme Court of Puerto Rico. According to
the grievance, Suárez told the plaintiffs he would "do everything
possible to remand the case again to Puerto Rico since he was not
knowledgeable of Miami laws," but then informed the plaintiffs
that "the case was dismissed because he was unable to appear in
the state of Florida." The grievance stated that the plaintiffs
did not know the status of their case--including whether Suárez
appealed the dismissal as promised--due to "poor communication" by
Suárez. It requested a copy of the case file and concluded, "We
want to know if he is following up on the case because he does not
answer calls nor emails."
The grievance prompted an investigation by the Office of
the Solicitor General of Puerto Rico, which found that the evidence
collected in its investigation substantiated the grievance. That
office issued a report to the Supreme Court of Puerto Rico on
March 9, 2012, stating that Suárez may have violated four ethical
canons: the duty to render competent service and diligent
representation (Canon 18); the duties upon withdrawal from
representation (Canon 20); the duty of candor toward clients and
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colleagues (Canon 35); and the duty to uphold the dignity and honor
of the legal profession (Canon 38). The Supreme Court of Puerto
Rico, after evaluating the report, ordered the Solicitor General
to present a complaint with formal charges for those violations.
That court then appointed a Special Commissioner to review the
materials and make a recommendation on the charges.
In 2014, the Special Commissioner issued a report
concluding that clear and convincing evidence supported all four
charges in the complaint. The report recommended indefinite
suspension. After conducting a searching review of the report and
recommendation, the Supreme Court of Puerto Rico found violations
of the four canons outlined above. With respect to Canons 18 and
20, the court found that Suárez's inaction post-transfer--and
resulting violations of local rules and court orders--caused
dismissal of the plaintiffs' lawsuit. It rejected his arguments
that the retainer agreement limiting his services to litigation in
the District of Puerto Rico, or his inability to receive electronic
notices in the Southern District of Florida, excused his
inaction--particularly because he never informed the court or his
opposing counsel that he was unable to practice in the latter forum
and conducted himself in a manner suggesting he was able to
practice there. The court also rejected his argument that, because
the dismissal was without prejudice, he did not violate his ethical
duties. With respect to Canon 35, the court found that Suárez's
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inconsistent statements and actions confused his clients, opposing
counsel, and the court regarding his ability to practice in the
Southern District of Florida and his efforts to transfer the case
back to the District of Puerto Rico. And finally, with respect to
Canon 38, the court found that the totality of Suárez's conduct
did not "exalt the honor nor the dignity of the profession" due to
"serious deviations from the ethical rules." The court imposed an
immediate and indefinite suspension, and denied two subsequent
motions by Suárez for reconsideration.
Upon receiving the Supreme Court's order, this court
initiated disciplinary proceedings through an order to show cause.
The United States District Court for the District of Puerto Rico
did the same and imposed reciprocal discipline by order dated
October 8, 2015. It agreed with the findings of the Supreme Court
and further held that Suárez violated the rules of professional
conduct applicable to attorneys admitted to practice in the
district court. An appeal of that order is not presently before
this panel. Instead, our inquiry is limited to the appropriateness
of imposing reciprocal discipline in this court.
"Our standards for imposing reciprocal discipline are
clear and are set forth in In re Williams, 398 F.3d 116 (1st Cir.
2005) (per curiam)." In re Oliveras López De Victoria, 561 F.3d
1, 3 (1st Cir. 2009). We impose substantially similar discipline
to that imposed in the state court unless the respondent persuades
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us
1. that the procedure used by the other court was so
lacking in notice or opportunity to be heard as to
constitute a deprivation of due process; or
2. that there was such an infirmity of proof establishing
the misconduct as to give rise to the clear conviction
that this Court could not, consistent with its duty,
accept as final the conclusion on that subject; or
3. that the imposition of substantially similar
discipline by this Court would result in grave
injustice; or
4. that the misconduct established is deemed by the Court
to warrant different discipline.
In re Williams, 398 F.3d at 116 (quoting 1st Cir. R. Att'y Discip.
Enf. (Discip. R.) II.C)); see also Fed. R. App. P. 46(b)(1)(A).
The respondent bears the burden to demonstrate "by clear and
convincing evidence . . . that the imposition of substantially
similar discipline is unwarranted." In re Barach, 540 F.3d 82, 85
(1st Cir. 2008). "Given the limited nature of our inquiry, the
norm will be for this court to impose discipline which is
substantially similar to that imposed by the state court." In re
Williams, 398 F.3d at 119 (citing In re Hoare, 155 F.3d 937, 940
(8th Cir. 1998)).
In his lengthy response to the show cause order, Suárez
appears to argue that all four grounds for declining to impose
reciprocal discipline apply here. We address each in turn. In
doing so, we "treat the state court's factual findings with a high
degree of respect," In re Barach, 540 F.3d at 84 (citing In re
Williams, 398 F.3d at 118), even as we "fully consider the state
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record" in determining whether reciprocal discipline is warranted,
id. (citing Selling v. Radford, 243 U.S. 46, 51 (1917)).
First, we see no defect so severe as to constitute a
deprivation of due process in the notice and opportunity to be
heard that Suárez received before the Supreme Court of Puerto Rico.
See In re Williams, 398 F.3d at 119‒20; Discip. R. II.C(1). Many
of Suárez's due process arguments exceed the scope of protections
afforded to the respondent in an attorney disciplinary proceeding.
See In re Cordova-Gonzalez, 996 F.2d 1334, 1336 (1st Cir. 1993)
(noting that the due process rights of the respondent "do not
extend so far as to guarantee the full panoply of rights afforded
to an accused in a criminal case" (quoting Razatos v. Colo. Supreme
Court, 746 F.2d 1429, 1435 (10th Cir. 1984))). Furthermore, his
argument that he received insufficient notice of the charges
against him relies upon an overly narrow reading of the grievance,
and an unduly broad application of In re Ruffalo, where the United
States Supreme Court found a violation of the respondent's due
process rights because the respondent did not receive notice of a
new charge, nowhere referenced in the formal complaint, until after
the investigation into that complaint concluded. See 390 U.S.
544, 549‒52 (1968). Unlike Ruffalo, Suárez received a grievance
that alerted him to the misconduct at issue, and a formal complaint
that charged each of the four violations later found by the Supreme
Court of Puerto Rico.
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Second, there is no infirmity of proof that instills in
us a clear conviction that we cannot accept the Supreme Court of
Puerto Rico's conclusion as final. See In re Williams, 398 F.3d
at 119; Discip. R. II.C(2). Suárez's contention that there was
"no evidence whatsoever to support any of the four charges"
(emphasis omitted) is specious. He attempts to discredit the
grieving party based upon alleged inconsistencies among his
grievance, another plaintiff's statements suggesting limited
awareness about the status of the case, and cellular phone records
indicating minimal contact between the grieving party and Suárez.
His attempts fall short, however, because even the evidence he
marshals evinces confusion among the plaintiffs about the status
of the case--confusion that the Supreme Court of Puerto Rico found
Suárez sowed through infrequent communications and inconsistent
messages. Additionally, evidence of four brief phone calls between
the grieving party and Suárez, none lasting more than five minutes,
and altogether totaling only sixteen minutes, hardly defeats the
grievance's assertion of poor communication--particularly where
the phone calls came approximately eight months after dismissal of
the plaintiffs' action.
Suárez also disputes that he knowingly or recklessly
deceived his clients because promises he made to them were sincere
when made, becoming untruthful only after legal research suggested
there were no grounds to do what he promised. Our task is not to
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consider these defenses de novo. Rather, we ask only whether the
excuses and justifications that Suárez provides produce a clear
conviction that we could not accept as final the Supreme Court of
Puerto Rico's conclusions. In context, it is not unreasonable to
think that, if Suárez's plans were tentative, he could and should
have signaled that. And if he discovered that legal rules or
ethical obligations prevented him from doing what he committed, he
promptly should have told those involved.
Third, we reject out of hand Suárez's claim that the
imposition of reciprocal discipline would occasion grave
injustice. See In re Williams, 398 F.3d at 119; Discip. R.
II.C(3). This claim was not developed by Suárez and, in any event,
lacks merit.
Finally, we do not agree that Suárez's misconduct merits
different discipline in this court. The suspension is indefinite,
not permanent, and we see nothing preventing Suárez from returning
to the Supreme Court of Puerto Rico to seek a lifting of the
suspension.
We therefore impose upon Suárez an indefinite suspension
from the bar of this court. If and when the Supreme Court of
Puerto Rico reinstates Suárez to the practice of law or otherwise
modifies his indefinite suspension, Suárez may seek reinstatement
in this court.
So ordered.
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