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In re Righter2/17/1999
{1} This matter came before the Court following disciplinary proceedings conducted pursuant to the Rules Governing Discipline, Rules 17-101 through 17-316 NMRA, wherein Michael A. Righter was found to have committed multiple violations of the Rules of Professional Conduct, Rules 16-101 through 16-805 NMRA. Despite several mitigating factors, we adopt the sanction recommended by the disciplinary board, with one modification, and order that Michael J. Righter be indefinitely suspended from the practice of law.
{2} On February 21, 1997, respondent filed a complaint against a healthcare provider for wrongful termination, discrimination, violation of the American Disabilities Act (sic.) and intentional infliction of emotional distress on behalf of his client, Mr. McBrayer, in state district court in Bernalillo County. In April 1997, the healthcare provider filed a notice of removal to the United States District Court on the basis that the complaint sought relief under the Americans With Disabilities Act. Although respondent was not licensed to practice before the United States District Court, he took no steps to seek membership in that bar or to associate with another attorney licensed to practice there.
{3} On May 1, 1997, the federal magistrate Judge entered a scheduling order directing the parties to appear before him (or by telephone) at a scheduling conference on May 27, 1997. Respondent neither appeared nor offered any excuse for not doing so. During the weeks that followed, both the defendant's attorney and the federal Judge tried without success to communicate with respondent regarding materials necessary to complete a pre-trial report.
{4} On June 23, 1997, the federal Judge issued an order to show cause directing the parties to appear before him at 9:00 A.M. on July 21 and to show cause why the case should not be dismissed for failure to prosecute. Respondent failed to appear at 9:00 A.M. on July 21 or at any other time on that date. At 10:35 A.M. on July 21, however, he filed or caused to be filed a detailed answer to the order to show cause claiming that he had not received notice of the scheduling conference and requesting that the case be remanded to the Santa Fe County district court even though it initially had been filed in a state district court in another county. A copy of this same pleading had been mailed to opposing counsel on July 15, 1997. As a result of respondent's failure to appear on July 21, as well as his failure to assist with the preparation of the initial pre-trial report, the federal Judge recommended that the case be dismissed without prejudice for failure to prosecute.
{5} Respondent continued to fail to provide discovery materials, and opposing counsel subsequently filed a motion to compel initial disclosures and discovery responses on August 6, 1997.
{6} On August 15, 1997, opposing counsel filed a supplemental response to the motion to remand, attaching thereto a copy of respondent's reply received by him on August 12, 1997. In the reply, respondent stated that "Plaintiff did not receive notice to appear on July 21, 1997, and answer a sua sponte order to show cause issued by the court." The facts establish that respondent was untruthful about his alleged failure to receive notice in that he sent a copy of his detailed response to the sua sponte order to opposing counsel well before the July 21 hearing.
{7} On November 3, 1997, a newly-assigned federal district court Judge issued an order denying remand and an order to show cause why more severe sanctions than dismissal without prejudice should not be imposed, directing all counsel to appear before him at 11:00 A.M. on November 20, 1997. At the hea
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