IN RE HARRISON, 1985-NMSC-110, 103 N.M.
537, 710 P.2d 731 (S. Ct. 1985)
IN THE MATTER OF TORRENCE B. HARRISON AN
ATTORNEY ADMITTED
TO PRACTICE BEFORE THE COURTS OF THE STATE OF NEW
MEXICO
SUPREME COURT OF NEW MEXICO
1985-NMSC-110, 103 N.M. 537, 710 P.2d 731
Virginia Ferrara, Chief Disciplinary
Counsel, Albuquerque, New Mexico, for Disciplinary Board.
Torrence B. Harrison, Albuquerque, New
Mexico, Pro Se.
{1} This matter having come before
this Court after disciplinary proceedings conducted pursuant to NMSA 1978,
Rules Governing Discipline (Repl.1985), wherein Attorney Torrence B. Harrison
was found to have committed violations of nine (9) rules of the Code of
Professional Responsibility, involving carelessness, negligence, invasion of a
trust account and the failure to maintain appropriate records, the Court adopts
the Disciplinary Board's findings and conclusions and accepts the Board's
recommendation to place Harrison on indefinite suspension.
{2} In September 1984,
Harrison settled a medical malpractice case for his client, Ezekiel Gonzales.
He sent Mr. Gonzales the $5,000 settlement check, asked his client to endorse
and return the check to him, and promised to remit two-thirds of the amount to
Mr. Gonzales as soon as the check had cleared. When Mr. Gonzales did not
receive the two-thirds portion of the $5,000 settlement amount by early
December 1984, and was unable to locate Harrison, he filed a complaint with the
Disciplinary Board. Shortly after being contacted by disciplinary counsel,
Harrison sent Mr. Gonzales a check for $3,500 and subsequently sent him an
additional check in the amount of $573.34. In a letter responding to
disciplinary counsel's inquiry, Harrison blamed the delay on changes in staff
and office arrangements.
{3} In the meantime,
disciplinary counsel subpoenaed the bank records of Harrison's trust account
for the period of October through December 1984. The records indicated that the
Gonzales check had been deposited in the trust account on October 4, 1984, and
that no other deposits had been made until mid-December. The balance in the
trust account as of November 30, 1984, was $28.67. The bank records also showed
that during this period Harrison had written forty-one (41) checks for his
personal use to pay rent, buy groceries, dine at various restaurants and meet
other personal expenses. These checks totaled $4,677.76.
{4} Harrison filed no answer
to the charges as specified before the Disciplinary Board and the allegations
were deemed admitted by the Board pursuant to NMSA 1978, Disc. Brd. P.R.
10(c)(2) (Repl.1985). Harrison's conduct is violative of NMSA 1978, Code of
Prof. Resp. Rules 1-102(A)(3), (4) and (6) 7-101(A)(3), 9-102(A), 9-102(B)(1),
(3) and (4) (Repl.1985).
{5} A hearing was conducted
to consider facts in mitigation of Harrison's conduct and he appeared at that
time. Harrison's response to the charges was that during
{*538}
this same period, he was suffering from alcoholism and simply was not keeping
any records of his accounts. He had no other bank account at the time and wrote
checks on the trust account for his own use against the portion of the
settlement check constituting his fee. He allegedly forgot that he had not
forwarded Mr. Gonzales' money to him and because of his failure to maintain
records did not realize that he had withdrawn his client's money as well as his
own. When he did realize this, he borrowed money and sent it to Mr. Gonzales
immediately. Harrison also stated that he had obtained some treatment for his
alcoholism after this occurred, but he also admitted he had not become totally
abstinent.
{6} Of concern to the
Disciplinary Board and this Court are the violations of NMSA 1978, Code of
Prof. Resp., Rule 9-102. As a fiduciary, an attorney holds a position of trust
and must segregate and keep meticulous records pertaining to all funds
belonging to his clients. Even if Harrison had not invaded his client's funds,
he would have still been in violation of this rule for his failure to promptly
forward Mr. Gonzales his share of the settlement proceeds, commingling these
funds, and his lack of any records regarding the money in this account.
{7} Ordinarily, such
misconduct would warrant disbarment. The hearing committee and the Disciplinary
Board in this instance, however, found that Harrison's actions were mitigated
by several factors. He had had no other complaints filed against him for any
reason. He did not deny his misconduct and, as soon as he realized what had
occurred, promptly took steps to forward to his client the money he was owed.
There is also some evidence that Harrison's misconduct was directly related to
his alcoholism. While none of these factors excuse this kind of unethical
conduct, the Disciplinary Board may consider these matters when determining the
type of sanction to be imposed. For this reason, the Court accepts the
Disciplinary Board's recommendations in this case.
{8} IT IS THEREFORE ORDERED
that Torrence B. Harrison be and hereby is suspended indefinitely from the
practice of law pursuant to NMSA 1978, Rules Governing Discipline, Rule
11(a)(3) (Repl.1985).
{9} IT IS FURTHER ORDERED
that should Harrison seek readmission to the practice of law pursuant to NMSA
1978, Rules Governing Discipline, Rule 19(b)(2) (Repl.1985), he must first file
with this Court a petition and affidavits showing (a) that he is a recovering
alcoholic and is participating in an Alcoholics Anonymous program on a regular
basis or other approved alcohol treatment program on a regular basis (b) that
he has taken and received a passing grade on the Multi-State Professional
Responsibility Examination given in New Mexico, and (c) that if readmitted, he
will be practicing law under the control and supervision of a member of the
State Bar of New Mexico approved by the Disciplinary Board for a period of not
less than one year.
{10} IT IS FURTHER ORDERED
that the Clerk of the Supreme Court forthwith strike the name of Torrence B.
Harrison from the roll of those persons permitted to practice law in New Mexico
and that this Opinion be published in the
New Mexico Reports and in the
State Bar of New Mexico
News and Views.
{11} The costs of this
proceeding in the amount of $345.67 are assessed against Harrison and must be
paid to the Disciplinary Board on or before January 1, 1986.
WILLIAM R. FEDERICI, Chief Justice
DAN SOSA, JR., Senior Justice
WILLIAM F. RIORDAN, Justice
HARRY E. STOWERS, Jr., Justice