In Matter of Convisser

IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: 2010-NMSC-037

Filing Date: July 13, 2010

Docket No. 32,019

IN THE MATTER OF
CLAUDE DAVID CONVISSER, ESQUIRE

An Attorney Admitted to Practice Before
the Courts of the State of New Mexico

DISCIPLINARY PROCEEDING

Joel L. Widman, Deputy Disciplinary Counsel
Albuquerque, NM

for Petitioner

Claude D. Convisser, pro se
Santa Fe, NM

for Respondent

OPINION
PER CURIAM.

{1} Our Disciplinary Board recommended that attorney Claude Convisser (Respondent)
be suspended from the practice of law for engaging in misrepresentations and the
unauthorized practice of law in violation of our Rules of Professional Conduct. Neither
Respondent nor disciplinary counsel were satisfied with the Disciplinary Board’s
recommendation, and both sought review in this Court. After permitting supplemental
briefing by both parties, and at the conclusion of oral argument, we announced our decision
from the bench to suspend Respondent from the practice of law for one year, but
conditionally deferred the suspension. We subsequently entered an order memorializing our
decision, and both parties filed motions for rehearing that we denied. We now issue this
Opinion to further explain our decision and provide guidance for future cases.

FACTUAL BACKGROUND

{2} The misconduct at issue in this case arose out of a dispute between Respondent and
officers and board members of two organizations in Santa Fe known as EcoVersity and the

1
Prajna Foundation. The founder and benefactor of both organizations was Frances Harwood,
who died in 2003. Upon her death, Jeff Harbour was appointed as personal representative
of Harwood’s estate. Harbour was also a board member and officer of EcoVersity and the
Prajna Foundation. Respondent is a former student of EcoVersity.

{3} On March 22, 2007, Respondent solicited Harwood’s sister as a client to pursue
claims against Harbour for his alleged mishandling of the Harwood probate. On April 5,
2007, Harwood’s sister sent an email to Respondent declining his offer to represent her.
During this time, Respondent was not yet licensed to practice law in New Mexico. Although
he did have a license to practice law in Virginia, he was on inactive status at the time.

{4} On April 25, 2007, Harbour met with Respondent at Respondent’s request. At that
meeting, Respondent threatened Harbour with legal action for what he claimed was the
mishandling of the Harwood estate. In particular, Respondent claimed that (1) the Harwood
estate had not been properly closed, (2) the will could be challenged because it had been
procured by Harbour through undue influence, and (3) the statute of limitations had not
expired for claims against Harbour as personal representative of the estate. Respondent also
represented at the meeting that he had several clients who were prepared to sue Harbour.
However, Respondent stated that claims against Harbour would not be pursued if Harbour
agreed to relinquish control of EcoVersity and the Prajna Foundation. The following day,
Respondent sent Harbour an email threatening a lawsuit, but offering a purported settlement
agreement from unidentified claimants. Two weeks later, Respondent sent another email to
Harbour’s attorney, assuring him that Respondent “faithfully and in good faith presented to
Mr. Harbour the claims of at least one client.”

{5} Later that summer, Respondent sent a letter to the New Mexico Attorney General
requesting an investigation and legal action to remove the board members of EcoVersity and
the Prajna Foundation. Attached to the letter was a document entitled “Affidavit of Marie
Wilkinson,” which was unsigned. Alhough there was a statement at the top of the affidavit
indicating that Wilkinson had not reviewed the affidavit, the letter repeatedly cited the
purported affidavit as support for the letter’s factual allegations. Respondent represented
that the purported affidavit contained a summary of statements Wilkinson had made to
Respondent during the course of several conversations. However, it came to light during the
disciplinary hearing that Wilkinson had never discussed with Respondent his intention to
attach the purported affidavit to his letter to the attorney general. It also became clear at the
hearing that the purported affidavit contained numerous statements that Wilkinson either did
not make or that set forth information of which she had no knowledge.

{6} Based on the foregoing, a hearing committee of the Disciplinary Board concluded
that Respondent had (1) engaged in the unauthorized practice of law in violation of Rule 16-
505(A) NMRA, and (2) engaged in conduct involving dishonesty, fraud, deceit, or
misrepresentation in violation of Rule 16-804(C) NMRA. The hearing committee also
recommended that Respondent be indefinitely suspended until he underwent a mental health
evaluation to assess his fitness to practice law. Upon review by a panel of the Disciplinary

2
Board, the board panel revised the recommended discipline to a one-year term of suspension
followed by six months of supervised probation. During the one-year term of suspension,
the board panel recommended that Respondent be required to undergo a mental health
evaluation to assess his fitness to practice law and to obtain appropriate counseling if
recommended by the evaluating psychologist.

{7} Respondent was adamantly opposed to the imposition of any discipline against him
for a variety of reasons. In contrast, disciplinary counsel believed that the disciplinary
panel’s recommendation was not severe enough and failed to hold Respondent accountable
for the full range of his misconduct. We address Respondent’s arguments and discuss why
he should be disciplined. In the course of that discussion, when appropriate, we will pause
to address disciplinary counsel’s arguments and ultimately discuss why we conclude that a
deferred suspension is the appropriate sanction for Respondent’s misconduct.

RESPONDENT’S DISCIPLINARY PROCEEDING WAS CONSTITUTIONAL AND
AFFORDED HIM DUE PROCESS

{8} At the outset, we address a number of constitutional challenges that Respondent
raises in an effort to question the underlying fairness of his disciplinary proceeding.
Respondent’s first challenge stems from his request that chief disciplinary counsel conduct
an independent review of his case. In response to that request, chief disciplinary counsel
sent Respondent a letter informing him that pursuant to Rule 17-307(E) NMRA she had
reviewed the file prior to the filing of charges and concluded that there was reasonable cause
to believe that Respondent had committed rule violations. She also informed Respondent
that she no longer had any authority to intervene in the proceedings because the matter was
now before the hearing committee, and noted that Rule 17-307(B) provides that “all doubts
shall be resolved in favor of conducting a formal hearing.”

{9} Respondent argues that chief disciplinary counsel’s reliance on Rule 17-307(B)
violated his right to due process. His argument is twofold. First, Respondent contends that
by resolving all doubts in favor of conducting a formal hearing, Rule 17-307(B) “is contrary
to the fundamental notion of due process that a person is innocent until proven guilty and not
civilly at fault until proven liable.” Second, Respondent asserts that Rule 17-307(B) is not
being consistently applied. Respondent believes that a consistent application of the rule
would either result in formal proceedings on nearly every complaint filed with the Board or
else the arbitrary pursuit of only some complaints. We do not find either of Respondent’s
arguments persuasive.

{10} Respondent’s contention that Rule 17-307(B) presumes his culpability is misguided.
As is the case with both criminal and civil proceedings, Rule 17-307(B) provides that in
deciding whether a complaint should be dismissed without a formal evidentiary hearing, the
facts alleged in the complaint must be taken as true before deciding whether there is
reasonable cause to believe that a violation of the Rules of Professional Conduct has
occurred. This is no different than the standard imposed in either a criminal or a civil

3
context for motions to dismiss the initiating pleading. See N.M. Life Ins. Guar. Ass’n v.
Quinn & Co., 111 N.M. 750, 753, 809 P.2d 1278, 1281 (1991) (“A motion to dismiss tests
the legal sufficiency of the complaint. In considering a motion to dismiss for failure to state
a claim upon which relief can be granted, we must accept as true all well-pleaded facts and
question only whether the plaintiff might prevail under any state of facts provable under the
claim.”); State v. Wasson, 1998-NMCA-087, ¶ 5, 125 N.M. 656, 964 P.2d 820 (recognizing
that when considering pretrial motions attacking the sufficiency of an indictment or
information, the factual allegations in the State’s pleadings are taken as true).

{11} To the extent that Respondent contends that disciplinary counsel is applying Rule 17-
307(B) arbitrarily, his argument is based on unsupported conjecture and a misunderstanding
of the handling of disciplinary complaints. First, although Respondent asserts that
disciplinary counsel dismisses many more complaints than should be allowable under Rule
17-307(B), his assertion has no support in the record. See State v. Reynolds, 111 N.M. 263,
267, 804 P.2d 1082, 1086 (Ct. App. 1990) (“Matters outside the record present no issue for
review.”). Moreover, even when Rule 17-307(B) precludes disciplinary counsel from
summarily dismissing a complaint, the Rules Governing Discipline still provide for a formal
investigation procedure and the possibility of an informal disposition that may avoid the
need for the filing of formal charges. See Rule 17-307(C) (providing a formal investigation
procedure before the filing of formal charges); Rule 17-308 NMRA (giving disciplinary
counsel discretion to propose an informal admonition to resolve the matter without the need
for a formal hearing). In short, even if most disciplinary complaints do not result in the
filing of formal charges, Respondent wrongly assumes that arbitrary or discriminatory
enforcement is the cause.

{12} Respondent next argues that he was the victim of selective prosecution because of
his involvement in a petition to convene a grand jury to investigate the operation of
EcoVersity. See N.M. Const. art. II, § 14 (providing registered voters with the right to
petition the district court to convene a grand jury). We assume without deciding that the
affirmative defense of selective prosecution is available to a respondent-attorney in a
disciplinary proceeding. Cf. State v. Estrada, 2001-NMCA-034, ¶ 12, 130 N.M. 358, 24
P.3d 793 (requiring a defendant in a criminal proceeding who asserts the affirmative defense
of selective prosecution to show that (1) “he was singled out for prosecution while others
similarly situated have not been prosecuted,” and (2) “selection of him for prosecution was
invidious or in bad faith and based on intentional, purposeful discrimination stemming from
impermissible considerations, such as . . . the exercise of a constitutionally protected right”).
However, even if the defense were available, Respondent has failed to establish its
prerequisites.

{13} First, Respondent made no showing that other similarly situated attorneys have not
been the subject of disciplinary proceedings, while he has. Second, Respondent’s attempt
to characterize this disciplinary proceeding as a means to punish him for exercising his right
to petition for a grand jury proceeding is a gross distortion of the record. To justify his claim
of selective prosecution, Respondent seizes on an isolated statement in a reviewing officer’s

4
report prepared before the filing of formal charges against him. See Rule 17-104(B) NMRA
(“A reviewing officer, upon request of disciplinary counsel or the chair of the board, shall
have the authority and duty to review, approve, modify or disapprove dismissals of
complaints docketed for formal investigation and offers of informal admonitions proposed
by disciplinary counsel.”). In that report, after twelve pages detailing why the reviewing
officer believed that Respondent committed misrepresentations and the unauthorized practice
of law, the report briefly notes the reviewing officer’s concern about Respondent’s ongoing
efforts to petition for the convening of a grand jury to investigate criminal fraud.
Respondent’s actions in that regard most concerned the reviewing officer because the
reviewing officer thought that Respondent was “trying to carve out a legal role for himself
when he does not represent anyone who has any standing to bring these claims.” From this
single statement, Respondent seeks to portray the entire disciplinary proceeding as flowing
from an unlawful intent to deprive him of his constitutional rights. He is simply wrong.

{14} The reviewing officer’s report describes in detail the factual basis for his conclusion
that Respondent engaged in misrepresentations and the unauthorized practice of law. No fair
reading of the reviewing officer’s report can lead to the conclusion that Respondent was
being singled out for exercising his right to petition the district court to convene a grand jury.
Rather, the reviewing officer only noted that Respondent’s petitioning activity was merely
his latest attempt to press claims that he had unsuccessfully solicited others to pursue
through civil litigation. The reviewing officer believed that the claims Respondent was
trying to raise through a grand jury proceeding were in violation of Rule 16-301 NMRA,
which prohibits the bringing of frivolous claims. However, the reviewing officer specifically
recommended against bringing a disciplinary proceeding on this basis, believing that a court
of law was the appropriate forum for determining either the merit or the frivolousness of the
claims Respondent was trying to pursue by means of a grand jury investigation. In short,
there is no basis for Respondent’s claim that he is the victim of selective prosecution.

{15} Respondent also seeks to establish a claim of vindictive prosecution because
disciplinary counsel initially recommended dismissing the complaint against him, but then
pursued disbarment after the reviewing officer disapproved dismissing the complaint. Cf.
State v. Brule, 1999-NMSC-026, ¶ 10, 127 N.M. 368, 981 P.2d 782 (discussing the defense
of vindictive prosecution within the context of criminal prosecutions). As with Respondent’s
claim of selective prosecution, we assume without deciding that the defense of vindictive
prosecution may be available to a respondent in an attorney discipline proceeding.
Nevertheless, Respondent has failed to establish that vindictive prosecution was at work in
this case.

{16} Respondent’s basis for presuming vindictive prosecution is that disciplinary counsel
ultimately sought his disbarment after first proposing to dismiss the complaint. However,
as touched on above, whenever disciplinary counsel wants to summarily dismiss a
complaint, the review and concurrence of a reviewing officer must be obtained. See Rule
17-105(B)(3)(a) NMRA (providing that the “dismissal of a complaint that has been docketed
for formal investigation is effective only after review and concurrence by a reviewing

5
officer”); Rule 17-104(B) (giving a reviewing officer “the authority and duty to review,
approve, modify or disapprove dismissals of complaints docketed for formal investigation”).
Under our Rules Governing Discipline, if a reviewing officer determines that a complaint
should not be dismissed, disciplinary counsel has no choice but to pursue the case. Thus,
the fact that disciplinary counsel sought the most severe possible sanction does not
demonstrate even a prima facie showing of vindictiveness, much less require disciplinary
counsel to offer an explanation in rebuttal. Cf. Brule, 1999-NMSC-026, ¶ 11 (“By itself,
the District Attorney’s decision to pursue felony charges in district court after filing a nolle
prosequi on the initial misdemeanor charges does not suggest a likelihood of
vindictiveness.”).

THE CORRECT STANDARD OF PROOF WAS APPLIED IN THIS CASE

{17} Because the hearing committee expressly stated that all of its findings were supported
by a preponderance of the evidence, Respondent argues that this Court should impose a
higher standard of clear and convincing evidence and dismiss the charges. Though this
Court has previously ruled that the preponderance of the evidence standard of proof is to be
used for most ethical rule violations, Respondent asks us to reconsider the matter. We
decline to do so and reaffirm this Court’s long-standing ruling that the preponderance of the
evidence standard is the appropriate standard of proof for most alleged ethical rule
violations. See In re D’Angelo, 105 N.M. 391, 393, 733 P.2d 360, 362 (1986) (per curiam)
(discussing the reasons for applying the preponderance of the evidence standard for most
alleged ethical violations in attorney disciplinary proceedings).

{18} Respondent correctly notes that the higher standard of clear and convincing evidence
is still applied to ethical rule violations involving fraud. Id. at 393, 733 P.2d at 362. In this
regard, Respondent points out that he was charged with violating Rule 16-804(C), which
prohibits engaging “in conduct involving dishonesty, fraud, deceit or misrepresentation.”
Because the hearing committee found that Respondent committed several violations of Rule
16-804(C) based on a preponderance of the evidence, Respondent argues that those findings
cannot stand. We disagree.

{19} While charges of fraud must always be proven by clear and convincing evidence, that
higher standard of proof does not always apply to alleged ethical misconduct involving
misrepresentations. In an ordinary civil case, allegations of negligent misrepresentation need
only be proven by a preponderance of the evidence, while intentional misrepresentations
must be proven by clear and convincing evidence. See, e.g., State ex rel. Conley Lott
Nichols Mach. Co. v. Safeco Ins. Co. Of Am., 100 N.M. 440, 443, 671 P.2d 1151, 1154 (Ct.
App. 1983). However, the negligent/intentional dichotomy used in civil cases does not
transfer well into the context of an attorney discipline case. See In re Bristol, 2006-NMSC-
041, ¶¶ 11-12, 19, 23, 29, 140 N.M. 317, 142 P.3d 905 (per curiam) (noting that a violation
of Rule 16-804(C) cannot be premised on negligent conduct and ruling that the hearing panel
overstepped its reviewing authority by finding contrary to the hearing committee that the
attorney engaged in intentional misrepresentations). Instead, when a violation of Rule 16-

6
804(C) is premised on conduct that is characterized as a misrepresentation, the conduct must
be intentional. That said, not all allegations of intentional misrepresentation must be proven
by clear and convincing evidence.

{20} The critical inquiry is whether the attorney’s conduct was driven by an improper
motive or intent. See In re Yalkut, 2008-NMSC-009, ¶ 25, 143 N.M. 387, 176 P.3d 1119
(per curiam) (providing that an ethical violation premised on the misappropriation of client
funds requires a dishonest motive and cannot be based on negligent conduct); see also In re
Obert, 89 P.3d 1173, 1177-78 (Or. 2004) (en banc) (recognizing that a misrepresentation
need not be driven by an improper motive and does not require an intent to commit fraud).
Thus, if an attorney is accused of engaging in misrepresentations with fraudulent intent, such
allegations must be proven by clear and convincing evidence in the same way that other rule
violations involving fraud must be proven. However, if an attorney is accused of engaging
in intentional misrepresentations without fraudulent intent, such allegations need only be
proven by a preponderance of the evidence, as is the case with most other ethical rule
violations. Because the hearing committee expressly found that Respondent did not exhibit
a selfish motive or seek to profit personally from his conduct, we therefore conclude that the
allegations that he engaged in misrepresentations in violation of Rule 16-804(C) only needed
to be proven by a preponderance of the evidence.

RESPONDENT FAILED TO ESTABLISH THE EXISTENCE OF EX PARTE
COMMUNICATIONS, BUT HE IS NOT REQUIRED TO UNDERGO A MENTAL
HEALTH EXAMINATION

{21} Respondent contends that he was the victim of ex parte communications between
disciplinary counsel and the hearing committee. However, Respondent can point to nothing
in the record to support this allegation. Instead, to support his claim, Respondent focuses
on the hearing committee’s recommendation that he undergo a mental health examination.
Respondent contends that there is nothing in the record to support the hearing committee’s
recommendation, and Respondent therefore speculates that disciplinary counsel must have
engaged in ex parte communications with the hearing committee to disparage his mental
health. Respondent’s speculation finds no support in the record and ignores a statement in
the hearing committee’s recommendation indicating that it was Respondent’s own
interactions with the hearing committee that prompted its recommendation that he undergo
a mental health examination.

{22} While it was Respondent’s behavior before the hearing committee and not ex parte
communications that apparently motivated the committee’s recommendation for a mental
health examination, as we noted after oral argument in this case, both the hearing committee
and the hearing panel lacked the authority to condition Respondent’s suspension on his
submitting to a mental health examination. Although the hearing committee characterized
Respondent’s behavior as “bizarre and peculiar,” the only specific example of this type of
behavior cited by the hearing committee was Respondent’s failure to obey the chairman’s
order that Respondent file no further pleadings unless the committee requested that he do so.

7
Respondent’s disobedience may have been cause for asking this Court to hold him in
contempt, see Rule 17-306(D)(1) NMRA, but we conclude that his disobedience is an
inadequate basis for ordering a mental health examination, particularly when such a
recommended sanction is not explicitly authorized by our Rules Governing Discipline. See
Rule 17-206 NMRA (listing types of discipline); see also Rule 17-208(B) NMRA
(permitting the Disciplinary Board to petition the Supreme Court for an order requiring an
examination to determine whether an attorney is incapacitated). For that reason, we do not
require Respondent to submit to a mental health examination as part of his discipline. That
said, we find nothing in the record to support Respondent’s claim that ex parte
communications played any part in the recommendation that he undergo a mental health
examination.

RESPONDENT’S CLAIMS OF PROSECUTORIAL MISCONDUCT ARE
UNFOUNDED

{23} Respondent also asserts that the disciplinary proceedings against him should be
dismissed because of prosecutorial misconduct that was “pervasive, incessant, and
outrageous.” To support his argument, Respondent relies on In re Stein, 2008-NMSC-013,
143 N.M. 462, 177 P.3d 513 (per curiam). Although we discussed and rejected claims of
prosecutorial misconduct in Stein, we also questioned the applicability of the criminal law
concept of prosecutorial misconduct within the context of an attorney disciplinary
proceeding. Id. at ¶ 54. We continue to have reservations about the use of this concept
outside the criminal law arena. See Cohen v. State Bd. of Med., 676 A.2d 1277, 1280 (Pa.
1996) (finding the criminal concept of prosecutorial misconduct inapplicable to
administrative disciplinary proceedings); see also In re Oxman, 437 A.2d 1169, 1173 n.11
(Pa. 1981). As in Stein, we need not definitively decide its applicability because Respondent
has failed to establish the kind of “pervasive, incessant, and outrageous” conduct the concept
was intended to remedy. See State v. Breit, 1996-NMSC-067, ¶ 37, 122 N.M. 655, 930 P.2d
792.

{24} For the most part, Respondent’s claim of prosecutorial misconduct is based on claims
that disciplinary counsel misused the discovery process. example, Respondent claims that
disciplinary counsel concealed potentially exculpatory documents, suborned a false affidavit,
misrepresented communications that disciplinary counsel had with Respondent, coached
witnesses during discovery, and failed to provide Respondent with copies of subpoenas
disciplinary counsel issued for witnesses he planned to call at the hearing. However,
Respondent’s claims in this regard are based on factual disputes that the hearing committee
resolved against him when denying his motions to dismiss. While Respondent also claims
that disciplinary counsel misrepresented to the hearing panel the nature of the admonishment
disciplinary counsel received in Stein, the hearing panel could review our opinion in Stein
and judge for itself whether disciplinary counsel was being forthright with the committee.
Because Respondent’s claims of prosecutorial misconduct depend on factual determinations
that were resolved against him, we will not substitute our judgment for that of the hearing
committee on questions of fact. See Bristol, 2006-NMSC-041, ¶ 15 (“Because the hearing

8
committee directly observes witness testimony, it is in the best position to weigh the
evidence, resolve matters of credibility, and choose between the conflicting inferences that
may be drawn from the evidence.”). Moreover, other than general assertions of prejudice,
Respondent failed to specifically demonstrate how any of disciplinary counsel’s purported
misconduct prejudiced Respondent’s defense or would result in a different outcome if
rectified. See In re Castellano, 119 N.M. 140, 144, 889 P.2d 175, 179 (1995) (per curiam)
(holding that an assertion of prejudice is not a showing of prejudice). For all of the
foregoing reasons, we reject Respondent’s claim of prosecutorial misconduct.

RESPONDENT RECEIVED ADEQUATE NOTICE OF THE CHARGES

{25} Respondent objects to a number of findings the hearing committee made because
they concerned matters that were not set forth in the formal specification of charges. The
specification of charges must contain “a brief and plain statement of the charge, or if more
than one, each of the separate charges of professional misconduct asserted against the
respondent-attorney.” See Rule 17-309(B)(1) NMRA. Respondent does not deny that the
specification of charges included each of the specific rule violations that the hearing
committee ultimately found he had committed. Respondent also concedes that the findings
to which he objects were not relied upon by the hearing committee for its conclusions that
he engaged in misrepresentations and the unauthorized practice of law. As such, Respondent
has failed to demonstrate prejudice because he received all the notice to which he was due.

RESPONDENT WAS NOT DEPRIVED OF THE RIGHTS TO DISCOVERY OR TO
CONFRONT AND CROSS-EXAMINE THE WITNESSES AGAINST HIM

{26} Respondent contends that the hearing committee improperly limited discovery and
his right to confront and cross-examine witnesses. To the extent Respondent contends that
the hearing committee erred in denying his requests to propound interrogatories, requests for
admissions, and requests for the issuance of subpoenas duces tecum, Respondent has failed
to explain how he was prejudiced by those limitations. See Castellano, 119 N.M. at 144, 889
P.2d at 179. As a result, we will not consider that issue further.

{27} To the extent Respondent contends that the hearing committee improperly restricted
the matters into which he could inquire during depositions, we note that throughout these
proceedings Respondent sought to uncover what he perceived to be the mishandling of the
Harwood probate and the operation of EcoVersity. However, as the hearing committee
correctly observed, even if he honestly believed he had valid concerns about the way that the
Harwood probate was handled and how that may have impacted EcoVersity’s operation,
those concerns are not relevant to whether Respondent engaged in misrepresentations or the
unauthorized practice of law. Even if Respondent’s concerns were valid, a matter on which
we express no opinion, such concerns would not justify violating our Rules of Professional
Conduct. Accordingly, we conclude that the hearing committee had good cause to limit the
manner in which Respondent could conduct his discovery. See Rule 17-311 NMRA (“Upon
a showing of good cause, the chair may permit discovery upon such terms as may be

9
appropriate under the circumstances.”).

RESPONDENT IS NOT BEING DISCIPLINED FOR NEGLIGENT
MISREPRESENTATIONS

{28} Respondent maintains that he is being inappropriately sanctioned for making
negligent misrepresentations to both Harbour and the attorney general. Respondent focuses
on the hearing committee’s findings that he should have known that the statute of limitations
had expired on any claims against Harbour as personal representative of the Harwood estate.
However, Respondent misconstrues the import of these findings.

{29} Respondent is not being disciplined for misunderstanding the application of the
relevant statutes of limitations that may or may not have applied to any claims that could
have been brought against the personal representative of the Harwood estate. Instead, as we
understand the findings, the hearing committee believed that Respondent knew that the
relevant statute of limitations had expired, but that he intentionally misrepresented that the
limitations period had not expired in his efforts to intimidate Harbour into relinquishing
control of EcoVersity and to spur the attorney general to initiate an investigation into
EcoVersity’s operation. As such, the hearing committee recommended discipline for
intentional misrepresentations, not negligent ones. Though the hearing committee found that
Respondent should have known the state of the law, that finding was coupled with a finding
that Respondent had spent a great deal of time reviewing the probate file. In addition, the
hearing committee noted that neither Respondent nor any of his purported clients had ever
brought a civil action against Harbour. Under these circumstances, the hearing committee’s
findings only can be viewed as rejecting Respondent’s claims of ignorance and mistake. See
Bristol, 2006-NMSC-041, ¶ 16 (providing that the hearing committee’s findings should be
viewed in the light most favorable to its decision). Viewing the hearing committee’s
findings in that light, Respondent’s contention that he is being erroneously sanctioned for
making negligent misrepresentations misconstrues the findings made against him.

SUBSTANTIAL EVIDENCE SUPPORTS THE HEARING COMMITTEE’S
CONCLUSION THAT RESPONDENT SHOULD BE DISCIPLINED FOR
ENGAGING IN MISREPRESENTATIONS AND THE UNAUTHORIZED
PRACTICE OF LAW

{30} As noted at the outset, the hearing committee concluded that Respondent violated
Rule 16-804(C) by engaging in misrepresentations and Rule 16-505(A) NMRA by engaging
in the unauthorized practice of law. Before proceeding to discuss why we conclude there
is substantial evidence to support the hearing committee’s decision on those points, we first
take note of disciplinary counsel’s contention that the hearing committee erred by refusing
to also find that Respondent violated two other Rules of Professional Conduct. Disciplinary
counsel first notes that although the hearing committee believed that Respondent’s conduct
demonstrated that he was unfit to practice law, the hearing committee declined to find a
violation of Rule 16-804(H) because that portion of the rule had been repealed by the time

10
of the hearing. Disciplinary counsel further notes that while the hearing committee also
found that Respondent asserted unfounded claims and contentions against Harbour, the
committee declined to find a violation of Rule 16-301 because Respondent did not assert
those claims and contentions within a proceeding.

{31} We appreciate disciplinary counsel’s position that Respondent should be held
accountable for violating an ethical rule that was in effect at the time he committed his
misconduct. We also appreciate the need to protect the public from attorneys who pursue
unfounded claims. However, we decline to disturb the hearing committee’s decision for two
reasons.

{32} Regarding the now-repealed provision in Rule 16-804(H), although the hearing
committee did indeed find that Respondent demonstrated his lack of fitness to practice law,
that finding was essentially premised on the same conduct that formed the basis for his
violations of the other rules for which discipline was recommended. As such, piling on
another rule violation that is only a more general means to condemn misconduct that
specifically violated other rules would add little to the outcome of this proceeding. In our
view, even if we were inclined to hold Respondent accountable for violating the now-
repealed Rule 16-804(H), the ultimate sanction we would impose against him would be
unchanged. Accordingly, we need not decide whether a sanction should be imposed for
misconduct that violated a previously-existing rule which was later repealed before the
enforcement proceeding commenced. Cf. In re Estate of Heeter, 113 N.M. 691, 695, 831
P.2d 990, 994 (Ct. App. 1992) (“On appeal, error will not be corrected if it will not change
the result.”). If the question arises in another context that is more compelling, we will revisit
the issue at that time.

{33} Disciplinary counsel’s desire to hold Respondent accountable for pursuing unfounded
claims in violation of Rule 16-301 raises similar concerns for us. Rule 16-301 specifically
prohibits bringing frivolous claims in a proceeding. Disciplinary counsel advocates
expanding the rule to encompass threats to bring an unfounded claim in a future proceeding.
Even assuming that it may be appropriate to expand the application of Rule 16-301 in that
way, we decline to do so in this case because again we foresee no change in the ultimate
sanction imposed on Respondent.

{34} We now turn our attention to the rule violations for which the hearing committee and
hearing panel did recommend imposing discipline. The hearing committee found three
separate violations to Rule 16-804(C) based on Respondent’s misrepresentations regarding
(1) whether the applicable statute of limitations had expired, (2) whether Respondent
actually represented any clients who wanted to sue Harbour, and (3) whether the purported
Wilkinson affidavit was inaccurate. The hearing committee found two violations of Rule
16-505(A) based on (1) Respondent’s unsuccessful solicitation of Harwood’s sister as a
client, and (2) his assertion to Harbour that the statute of limitations had not yet run on
claims Respondent threatened to bring against Harbour for breach of his fiduciary duty as
personal representative of the Harwood estate. Notwithstanding Respondent’s arguments

11
to the contrary, for the reasons that follow, we determine that the hearing committee’s
findings are supported by substantial evidence. See Bristol, 2006-NMSC-041, ¶¶ 16-18
(providing that the findings of the hearing committee are reviewed for substantial evidence).

{35} As we discussed earlier in this Opinion, the hearing committee found that
Respondent engaged in intentional misrepresentations, but that he did so without a selfish
motive. Regarding the hearing committee’s conclusion that Respondent violated Rule 16-
804(C) during his meeting with Harbour, the committee could reasonably view the evidence
as establishing that Respondent knew that the statute of limitations had expired, but
intentionally misled Harbour into believing it had not in an effort to persuade him to
relinquish control of EcoVersity. See Bristol, 2006-NMSC-041, ¶ 16 (noting that all
reasonable inferences from the evidence are made in support of the decision of the hearing
committee). Similarly, Respondent’s same misrepresentations to the attorney general could
be reasonably viewed as intended to spur an investigation into EcoVersity’s operation.

{36} We recognize that Respondent contends his statements to Harbour were based on a
misunderstanding of the law. However, we again note that the hearing committee
specifically found that Respondent thoroughly reviewed the probate file before meeting with
Harbour and sending his letter to the attorney general. also again note the hearing
committee’s finding that neither Respondent nor any of his purported clients ever brought
a civil action against Harbour. As such, the hearing committee could reasonably reject
Respondent’s claim of ignorance regarding the true state of the law and instead could
reasonably infer that Respondent knew the statute of limitations had expired but engaged in
misrepresentations to achieve his goals without pursuing civil litigation that he knew would
be time-barred. We will not second-guess the hearing committee on such fact-intensive
questions of credibility and motive. See Bristol, 2006-NMSC-041, ¶ 15 (requiring
deference to the hearing committee on matters of weight and credibility).

{37} Regarding Respondent’s statements to Harbour indicating he represented clients
with standing and interest to reopen the Harwood estate and sue Harbour, we conclude that
there was substantial evidence to support the hearing committee’s conclusion that
Respondent violated Rule 16-804(C). We recognize that Respondent claimed he was in the
midst of ongoing discussions with Harwood’s sister and others regarding whether they
wanted Respondent to represent them in a lawsuit. However, the hearing committee was free
to reject the evidence Respondent offered in support of his claim. See Bristol, 2006-NMSC-
041, ¶¶ 15, 26. In this regard, we note the hearing committee’s finding that Harwood’s sister
refused to sign the attorney representation agreement that Respondent sent to her well before
he met with Harbour. We also again take note of the hearing committee’s finding that
Respondent never filed any type of civil action against Harbour on behalf of anyone. In
short, because Respondent failed to establish the existence of any attorney-client
relationship, the hearing committee could reasonably infer that he simply misrepresented the
existence of clients in his effort to intimidate Harbour into relinquishing control of
EcoVersity. Id. ¶¶ 16, 17.

12
{38} As for the purported affidavit claiming to memorialize a series of conversations
between Respondent and Wilkinson, we conclude that there was substantial evidence to
support the hearing committee’s conclusion that the purported affidavit violated Rule 16-
804(C). In attempting to rebut any suggestion that the affidavit was intended to be a
misrepresentation, Respondent relies heavily on the fact that he disclosed in his letter to the
attorney general that the purported affidavit had not been signed or reviewed by Wilkinson.
Aside from that disclosure, he nevertheless represented to the attorney general that it
accurately summarized Wilkinson’s statements to Respondent during several conversations
between them and repeatedly cited the purported affidavit in support of the factual
allegations he made in his letter. Wilkinson denied the accuracy of most of what was set
forth in the purported affidavit and was not aware that Respondent was considering
submitting such a document to the attorney general. Under these circumstances, the hearing
committee could reasonably infer that Respondent intended to mislead the attorney general
into believing that the purported affidavit was an accurate, albeit unsigned and unreviewed,
statement of Wilkinson’s belief. See Bristol, 2006-NMSC-041, ¶¶ 16, 17.

{39} Regarding the hearing committee’s conclusion that Respondent engaged in the
unauthorized practice of law in violation of Rule 16-505(A), Respondent does not dispute
that he solicited Harwood’s sister to retain him to pursue a lawsuit against Harbour, nor does
he dispute that he advised Harbour that the statute of limitations had not expired for claims
against him as the personal representative of the Harwood estate. Moreover, Respondent
does not question whether his conduct constitutes the practice of law. Instead, Respondent
contends that his attempts to solicit a client and give legal advice were exempt from
disciplinary sanctions because he was actually permitted to take those actions under
exceptions set forth in Rule 16-505(E), which Respondent characterizes as “safe harbors”
from the general prohibition against the unauthorized practice of law. For the reasons that
follow, we conclude that the hearing committee was entitled to reject Respondent’s asserted
defenses.

{40} While Rule 16-505(A) prohibits the unauthorized practice of law by attorneys who
are not licensed in New Mexico, the rule as a whole does provide some limited exceptions
for attorneys who are admitted to practice in another state. Respondent seeks to claim two
of those exceptions. See Rule 16-505(E)(1) & (2) (permitting a lawyer admitted in another
state and not suspended from practice to provide legal services in New Mexico on a
temporary basis if the lawyer associates with local counsel who actively participates in the
matter or if the lawyer reasonably expects to be authorized to practice in this state).
However, at the time that Respondent solicited Harwood’s sister to be a client, Respondent
was still on inactive status in Virginia. Even though he anticipated being returned to active
status, he was still inactive. As such, we conclude that Respondent could not rely on the
exceptions to the prohibition against the unauthorized practice of law. See Rule 16-505 cmt.
7 (noting that an attorney on inactive status is not considered admitted for purposes of the
exceptions permitting temporary legal services). Perhaps if Respondent had already been
on active status in Virginia, the securing of local co-counsel or his anticipated admission to
the New Mexico bar would have permitted his actions. The record also reflects that

13
Respondent had not secured local counsel. Although he spoke with a local attorney about
a possible future lawsuit, at the time he did so, local counsel whom he had contacted
understood that he did not yet have a client.

{41} We recognize that by the time he met with Harbour, Respondent had apparently just
learned that his Virginia license had been reactivated and that he had passed the New
Mexico bar exam. However, Respondent’s reliance on his newly-reactivated Virginia
license coupled with his expectation that he would soon be admitted to the New Mexico bar
strains the exceptions in Rule 16-505(E) to their breaking point. Moving from inactive to
active status to practice law is not simply an empty formality, nor is the initial admission to
practice law. If those formalities are to have any meaning, a lawyer must refrain from
practicing law until he or she is clearly authorized to do so. We therefore conclude that
substantial evidence supported the hearing committee’s conclusion that Respondent engaged
in the unauthorized practice of law.

A DEFERRED PERIOD OF SUSPENSION IS THE APPROPRIATE DISCIPLINARY
SANCTION UNDER THE CIRCUMSTANCES OF THIS CASE

{42} As noted above, although the hearing committee recommended that Respondent
undergo an indefinite suspension until he submitted to a mental health examination, the
hearing panel disagreed with that recommendation and instead recommended a one-year
suspension during which Respondent would submit to a mental health examination and
counseling, if recommended, followed by a six-month probationary period. The
disagreement between the hearing committee and the hearing panel notwithstanding, we
independently determine the appropriate level of sanction to impose for Respondent’s
misconduct. See Bristol, 2006-NMSC-041, ¶¶ 18, 30. In so doing, the ABA Standards for
Imposing Lawyer Sanctions (1992) provide us with guidance. See In re Key, 2005-NMSC-
014, ¶ 5, 137 N.M. 517, 113 P.3d 340.

{43} Because Respondent engaged in conduct involving intentional misrepresentations
and the unauthorized practice of law, Standards 5.1 and 7.0 of the ABA Standards provide
the most direct guidance for this case. Standard 5.1 provides guidance for imposing
sanctions for failure to maintain personal integrity, and, specific to this case, conduct
involving dishonesty, fraud, deceit, or misrepresentation directed at someone other than a
client or tribunal. Under Standard 5.13, a reprimand is generally considered appropriate
when a lawyer knowingly engages in non-criminal conduct involving dishonesty, fraud,
deceit, or misrepresentation that adversely reflects on his or her fitness to practice law.

{44} Regarding the unauthorized practice of law, Standard 7.2 provides that a suspension
is generally considered appropriate when the lawyer knowingly engages in such conduct and
causes injury or potential injury to a client, the public, or the legal system. In contrast, if the
attorney negligently engages in the unauthorized practice of law but causes little or no actual
or potential injury, then a reprimand or admonition is generally considered appropriate. See
Standards 7.3 and 7.4.

14
{45} Based on the foregoing standards, we hold that a reprimand and suspension are the
most appropriate response for the totality of Respondent’s misconduct. We note, however,
that Standard 9.0 contemplates increasing or decreasing a sanction’s severity based on any
aggravating or mitigating circumstances in the case. As we have previously noted, the
hearing committee found that Respondent acted without a selfish motive, which is a potential
mitigating factor under Standard 9.32(b). However, the hearing committee also found that
Respondent “has a total lack of understanding of his conduct and the consequences of his
actions,” a finding with which we agree and which has ample support in the record. See
Standard 9.22(g) (providing that an aggravating circumstance includes a lawyer’s refusal to
acknowledge the wrongful nature of his conduct).

{46} We note that while the hearing committee declined to find a pattern of misconduct
as an aggravating circumstance in this case because Respondent’s misconduct had a single
purpose, disciplinary counsel nevertheless asks that we consider Respondent’s repeated
misrepresentations as a pattern of conduct constituting an aggravating factor under Standard
9.22(c). Without foreclosing the possibility that a pattern of conduct could be found to exist
where an attorney engages in repeated misconduct for a single purpose, we decline to
overturn the hearing committee’s decision on this point based on the unique circumstances
of this case.

CONCLUSION

{47} In sum, because there are factors both in aggravation and in mitigation of
Respondent’s offenses, and because Respondent’s offenses otherwise warrant a reprimand
and suspension under the ABA Standards cited above, a one-year suspension and public
reprimand by means of this Opinion are the appropriate sanction for Respondent’s
misconduct. We note, however, that the misconduct at issue in this case took place shortly
before and after Respondent was admitted to practice law in this state. Accordingly, we
deem it appropriate to exercise our discretion to defer the period of suspension on the
condition that Respondent engage in no further ethical misconduct in violation of our Rules
of Professional Conduct and Rules Governing Discipline. We recognize that disciplinary
counsel continues to believe that disbarment is the appropriate sanction in this case.
However, without minimizing the seriousness of Respondent’s misconduct, we cannot agree
that disbarment would be an appropriate response at this time.

{48} As noted before, although Respondent appears to be unwilling or unable to
understand the nature of his misconduct, there is no indication that he was acting with a
selfish motive or desire to secure a private benefit for himself. Because all of Respondent’s
misconduct centered around his single-minded purpose of righting what he perceived to be
a wrong committed against EcoVersity, we hope that Respondent’s penchant for
misrepresenting facts to suit his purposes and stretching the interpretation of our ethical rules
to their breaking point will not repeat itself in other contexts. Therefore, as previously
ordered by this Court, Respondent’s one-year suspension from the practice of law is
deferred. However, if Respondent fails to engage in meaningful self-examination and

15
continues to engage in unethical conduct in another context, we will not hesitate to revisit
the need for a more severe sanction to protect both the public and our legal system.

{49} IT IS SO ORDERED.

____________________________________
CHARLES W. DANIELS, Chief Justice

____________________________________
PATRICIO M. SERNA, Justice

____________________________________
PETRA JIMENEZ MAES, Justice

____________________________________
RICHARD C. BOSSON, Justice

____________________________________
EDWARD L. CHÁVEZ, Justice

Topic Index for In re Convisser, Docket No. 32,019

AT ATTORNEYS

AT-DA Disciplinary Action
AT-PR Professional Responsibility
AT-UP Unauthorized Practice

CT CONSTITUTIONAL LAW

CT-MS Misconduct by Prosecutor
CT-RF Right to Confrontation

16