In Re Padilla

Office of Director New Mexico
Compilation
'00'07- 15:45:28 2020.02.04 Commission

IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: 2020-NMSC-003

Filing Date: December 19, 2019

No. S-1-SC-37594

IN THE MATTER OF
RAFAEL PADILLA

An Attorney Suspended from the
Practice of Law Before the Courts
of the State of New Mexico

Released for Publication February 11, 2020.

Christine E. Long
Albuquerque, NM

for Disciplinary Board

Rafael Padilla
Albuquerque, NM

Respondent

OPINION

VIGIL, Justice.

{1} 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.

{2} 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.

I. BACKGROUND

{3} 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 trial.

{4} 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 charges.

{5} Padilla 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.

A. Psychological Evaluation

{6} 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.

{7} 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.

{8} 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.

{9} 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.

{10} 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.

B. Similar Recanted Allegations

{11} Defendant filed a motion for new trial based on newly discovered evidence after
his appellate counsel learned that the alleged victim had also accused her stepfather of
sexual abuse. Id. ¶ 19. The alleged victim later recanted her allegations against her
stepfather, and the State voluntarily dismissed the charges against him. Id. In his motion
for new trial, Defendant argued that the alleged victim’s recantation was important
impeachment evidence that the State failed to disclose. Id.

{12} The district court denied Defendant’s motion after hearing testimony from Padilla
and Jacob Payne, the prosecutor in Defendant’s case and the dismissed case against
the stepfather, as well as from Defendant’s first trial attorney. Id. ¶¶ 20-23. Padilla
testified that he had no memory of the State informing him of the case against the
stepfather, but he admitted that Defendant had provided him “limited” information that
the stepfather was suspected of abusing the alleged victim. Id. ¶ 21 (alteration and
internal quotation marks omitted). Even armed with that information, Padilla did not
remember questioning the alleged victim about “lying or being molested by [her
stepfather].” Id.

{13} Payne, on the other hand, testified that he had “a specific memory” of discussing
the case against the stepfather and its ultimate dismissal with Padilla. Id. ¶ 22. Payne
admitted, however, that he did not have a written record that he had informed Padilla of
the alleged victim’s recantation of her accusation against her stepfather. Id. Because
Padilla’s memory was “attenuated and conditional” while Payne’s memory was detailed
and specific, the district court concluded that Padilla “was aware of the . . . case [against
the stepfather], the nolle [prosequi], and the recantation.” Id. ¶ 23 (second alteration in
original) (internal quotation marks omitted).

{14} The Court of Appeals affirmed the district court’s denial of Defendant’s motion for
a new trial, concluding that the district court’s ruling was supported by sufficient
evidence that Padilla knew about the case against the stepfather and the recantation
before the conclusion of Defendant’s trial. Id. ¶¶ 26-27. In fact, the stepfather’s case
was discussed at Defendant’s trial. Id. ¶ 26. Before Defendant commenced his case in
chief, the State reported to the district court that it had dropped the charges against the
stepfather. Id. The Court of Appeals noted that “Padilla expressed no surprise and
made no indication that he was previously unaware of this information” during this
discussion at trial. Id.

{15} In the end, Padilla failed to investigate the case against the stepfather on
Defendant’s behalf. Padilla admitted at the hearing on Defendant’s motion for new trial
that evidence of the alleged victim’s recantation of her allegations against her stepfather
“would have changed the course of the trial.” Id. ¶ 36 (internal quotation marks omitted).
As the Court of Appeals stated,
[Padilla] admitted he had received information from [Defendant] that [the
stepfather] had gotten in some trouble because of his behavior toward [the
alleged victim] but failed to investigate that information. Undoubtedly,
allegations of sexual molestation of the victim by another individual around
the same time period raise questions about the identity of the actual
perpetrator of the molestation. . . . [I]n a trial involving allegations of sexual
abuse, there can be little more probative evidence than that which
suggests the possibility that the allegations made by the alleged victim are
false; and, evidence of the falsity of prior similar allegations are significant
indicia of innocence that any effective attorney knows to pursue.

Id. ¶¶ 35-36. Padilla’s failure to investigate the case against the alleged victim’s
stepfather demonstrates his lack of competence and diligence in representing
Defendant.

C. “Sexual Deviant” Testimony

{16} During Padilla’s cross-examination of an investigating officer in Defendant’s
case, Padilla elicited testimony regarding Defendant’s sexual desires. See id. ¶ 37.
Padilla asked what had led the officer to arrest Defendant. Id. The officer replied that he
made the arrest based in part on knowledge of Defendant’s “sexual desires, [which] all
fits in with the sexual deviant nature of the individual.” Id. (internal quotation marks
omitted). Padilla then asked which of Defendant’s “sexual desires” the officer used to
support his arrest of Defendant.

{17} The State objected to the testimony, likely based on concern that the officer’s
characterization of Defendant would result in reversible error. Id. The State explained
that the officer’s statement went “to essentially irrelevant consensual sex acts between
two adults that don’t really bear on this particular issue at all.” Id. (internal quotation
marks omitted). The State’s objection was sustained and Padilla withdrew his question
during a bench conference, but Padilla did not request that the officer’s statement be
stricken from the record or limited in any way. Id. That Padilla pursued this tactically
risky line of questioning and then failed to move to strike, limit, or otherwise cure the
officer’s unsupported and improper characterization of Defendant is additional evidence
of Padilla’s lack of competence.

D. CYFD Report

{18} Around the time of the purported sexual abuse in Defendant’s case, the alleged
victim claimed that her mother and stepfather had physically abused her, prompting a
CYFD investigation. Id. ¶ 38. The allegations of physical abuse were found to be
unsubstantiated in a report produced by CYFD. Id. Padilla sought to admit this report
twice but was denied each time by the district court, in part because Padilla failed to
produce a witness who could authenticate the report.
{19} After the district court’s first denial of Padilla’s request and during a break in trial,
Padilla read in the report that the alleged victim had stated that “she had never
experienced bad touch.” Id. ¶ 39 (internal quotation marks omitted). It would appear that
Padilla had not read this portion of the report prior to the break in trial. Id. Padilla again
requested to use the report to attack the alleged victim’s credibility but was unable to
provide any authority to support the report’s admission, and the request was again
denied. Id. Padilla failed to take the necessary steps to properly introduce this crucial
piece of evidence with foundational support, further demonstrating his lack of
competence and diligence in preparation for trial.

II. DISCUSSION

{20} The Board adopted the hearing committee’s findings of fact and conclusions of
law that Padilla violated Rules 16-101, -103, and -804(D). In reviewing the disciplinary
proceedings, we view the evidence in the light most favorable to the Board’s findings of
fact. In re Dixon, 2019-NMSC-006, ¶ 5, 435 P.3d 80. “We review the Board’s
conclusions of law de novo.” Id. ¶ 19. Accordingly, we adopt the Board’s findings of fact
and conclusions of law in their entirety. Padilla’s misconduct evinces a lack of
competence and diligence that is prejudicial to the administration of justice.

A. Competence and Diligence

{21} Rule 16-101 mandates that lawyers “provide competent representation” to their
clients. “Competent representation requires the legal knowledge, skill, thoroughness,
and preparation reasonably necessary for the representation.” Rule 16-101. Thorough
preparation “includes inquiry into and analysis of the factual and legal elements of the
problem, and use of methods and procedures meeting the standards of competent
practitioners.” Rule 16-101 Comm. commentary [6]. Padilla violated Rule 16-101 when
he failed to thoroughly prepare for Defendant’s trial, resulting in several key legal errors
before the district court.

{22} Rule 16-103 requires that lawyers “act with reasonable diligence and promptness
in representing a client.” This means that lawyers must “take whatever lawful and ethical
measures are required to vindicate a client’s cause or endeavor” and must “act with
commitment and dedication to the interests of the client . . . with zeal in advocacy upon
the client’s behalf.” Rule 16-103 Comm. commentary [1]. Padilla violated Rule 16-103
when he failed to investigate evidence crucial to the defense and failed to apprise
himself of the substantive and procedural law so that he could properly introduce and
move the admission of such evidence, which might have led to an acquittal.

{23} We address Padilla’s lack of competence and diligence as a failure to apprise
himself of the law, a failure to investigate, and a failure to meet the professional
standards expected of attorneys in this state.

1. Duty to apprise oneself of the law
{24} Attorneys have a duty to apprise themselves of the current state of applicable
legal standards pertinent to a given case. “No lawyer should approach any task without
knowledge of the applicable statutes, court rules, and case law.” In re Neal, 2001-
NMSC-007, ¶ 21, 130 N.M. 139, 20 P.3d 121. Padilla should have known that Rule 11-
410 barred the admission of Defendant’s statements in a psychological evaluation
prepared for use in plea negotiations. Had Padilla performed a perfunctory review of
Rule 11-410 and its related precedent, he would have discovered State v. Trujillo, 1980-
NMSC-004, 93 N.M. 724, 605 P.2d 232. See Miera, 2018-NMCA-020, ¶ 32. The Court
in Trujillo expressly stated that Rule 410 (the precursor to Rule 11-410) barred
impeachment of a witness with statements made in plea negotiations. See 1980-NMSC-
004, ¶¶ 18-19. This rule is “directly contradictory” to the State’s argument at Defendant’s
trial. Miera, 2018-NMCA-020, ¶ 32.

{25} Not only did Padilla fail to cite the appropriate case law that would have blocked
the State’s use of the psychological evaluation for impeachment purposes, he also
failed to challenge the State’s improper reliance on Watkins even after the district court
recessed to permit counsel to research the evaluation’s admissibility. Miera, 2018-
NMCA-020, ¶ 9. There are crucial differences between the presentation of evidence in
Watkins and in Defendant’s trial. In Watkins, the defendant introduced recorded
conversations in his case in chief, conversations which the State later used to impeach
the defendant’s testimony. 1979-NMCA-003, ¶ 17. The Court of Appeals in Watkins
concluded that “[h]aving interjected the tapes into the trial for his own purposes, [the]
defendant cannot properly complain of the prosecutor’s use of the tapes, on cross-
examination, to attack the credibility of [the] defendant’s trial testimony.” Id. ¶ 21.

{26} In contrast to the defendant’s actions in Watkins, Defendant did not seek to admit
the psychological evaluation in his case in chief. Despite this critical distinction, Padilla
conceded that the holding of Watkins permitted the State to impeach Defendant with
statements made in pursuit of plea negotiations. Miera, 2018-NMCA-020, ¶ 9. We agree
with the Court of Appeals that Padilla completely failed “to apprise himself of the law
governing the use of information gathered during plea negotiations for impeachment,”
id. ¶ 33, in violation of Rule 16-101.

{27} Furthermore, the record shows that Padilla had knowledge of the psychological
evaluation before trial yet failed to challenge it on Defendant’s behalf armed with the
applicable law to prevent its admission. Once the evaluation was improperly used to
impeach Defendant, Padilla did nothing to limit its impact on the jury, even when
prompted to request a limiting instruction by the district court. This demonstrates
Padilla’s lack of diligence in violation of Rule 16-103.

2. Duty to investigate

{28} The provision of competent and diligent representation also includes a duty to
investigate the factual and legal bases of a client’s case or defense. See In re Reid,
1993-NMSC-055, ¶ 12, 116 N.M. 38, 859 P.2d 1065. “Courts may find counsel’s
performance deficient where he fails to investigate a significant issue raised by the
client.” Miera, 2018-NMCA-020, ¶ 34 (alteration, internal quotation marks, and citation
omitted). Padilla lacked competence and diligence when he failed to investigate the
allegations underlying the charges against the alleged victim’s stepfather and the report
compiled by CYFD.

{29} Padilla took no action as a result of learning potentially exculpatory information
regarding the stepfather’s relationship with the alleged victim. A thorough investigation
into the case against the stepfather would have revealed the alleged victim’s
recantation. We agree with the Court of Appeals that Padilla’s “fail[ure] to pursue a
specific lead given to him by [Defendant] that either suggested [the stepfather] as an
alternate perpetrator or called into question [the alleged victim’s] credibility” clearly
demonstrates Padilla’s lack of competence and diligence. Id. ¶ 40.

{30} Padilla also failed to investigate the circumstances surrounding the abuse
documented in the CYFD report. Only during the trial did Padilla discover that the
alleged victim had stated that she had never experienced “bad touch.” All indications
are that Padilla did not even read the complete report prior to trial. Had he done so, he
could have called the necessary witness to authenticate the CYFD report and testify to
its contents, thereby allowing Padilla to properly introduce the report and move its
admission into evidence. His failure to provide such a witness and his failure to
thoroughly gather and review evidence prior to trial shows a lack of competence and
diligence.

3. Public confidence in attorney competence

{31} Finally, attorneys must demonstrate to the public that they are “worthy of
confidence” in their professionalism, knowledge, and skills. See In re Quintana, 1985-
NMSC-101, ¶ 8, 103 N.M. 458, 709 P.2d 180. In Defendant’s trial for sex crimes against
a child, Padilla’s elicitation of officer testimony regarding Defendant’s sexual desires
calls into question whether he has the knowledge and skills required of a competent
criminal defense attorney. As the Court of Appeals observed, “one must question the
wisdom of pursuing a line of questioning so objectionable that the State intervenes in an
attempt to save its case from reversal on appeal.” Miera, 2018-NMCA-020, ¶ 37. We
agree. Padilla’s pursuit of this testimony and subsequent failure to move the district
court to strike it from the record following the State’s sustained objection reveals
Padilla’s lack of competence.

{32} For the foregoing reasons, we conclude that Padilla violated Rules 16-101 and -
103 in his representation of Defendant.

B. Conduct Prejudicial to the Administration of Justice

{33} “It is professional misconduct for a lawyer to . . . engage in conduct that is

prejudicial to the administration of justice[.]” Rule 16-804(D). “Lawyers are subject to
discipline when they violate . . . the Rules of Professional Conduct.” Rule 16-804
Comm. commentary [1]. Padilla violated Rules 16-101 and -103 repeatedly in the
course of his substandard representation of Defendant. As a result, the Court of
Appeals concluded that Defendant was denied a fair trial. We cannot turn a blind eye to
egregious attorney misconduct that rises to such a level as to deprive a client of due
process under the law. Therefore, we conclude that Padilla’s misconduct was prejudicial
to the administration of justice in violation of Rule 16-804(D), and we impose discipline
accordingly. “The purpose of attorney discipline is not solely to protect clients from
being harmed by their attorneys, but also to protect the profession and the
administration of justice.” In re Cox, 1994-NMSC-054, ¶ 8, 117 N.M. 575, 874 P.2d 783.

C. Discipline

{34} Suspension is the appropriate sanction when an attorney repeatedly
demonstrates a lack of competence and diligence, resulting in injury to the attorney’s
client. See In re Salazar, 2019-NMSC-010, ¶ 34, 443 P.3d 555; see also Am. Bar Ass’n,
Annotated Standards for Imposing Lawyer Sanctions, Standard 4.42(b) (2015)
(“Suspension is generally appropriate when . . . a lawyer engages in a pattern of neglect
caus[ing] injury or potential injury to a client.”). “While an isolated instance of failure to
. . . act diligently, or provide competent representation may not necessarily warrant the
filing of formal charges of professional misconduct, a pattern of such behavior that is
negligent or unreasonable will not only constitute misconduct but will also result in the
imposition of discipline.” In re Romero, 2001-NMSC-008, ¶ 8, 130 N.M. 190, 22 P.3d
215 (internal quotation marks and citation omitted).

{35} Padilla’s recurrent failure to provide Defendant with competent and diligent
representation deprived his client of a fair trial. See Miera, 2018-NMCA-020, ¶ 1.
Accordingly, we indefinitely suspended Padilla for a period of no less than one year,
effective August 8, 2019, in accordance with Rule 17-206(A)(3) NMRA. Padilla’s
suspension is partially deferred as follows. Padilla shall be suspended for six months
and must comply with Rule 17-212 NMRA. At the conclusion of his six-month
suspension on February 10, 2020, Padilla will be automatically reinstated to supervised
probationary status pursuant to Rule 17-206(B)(1) for the remainder of his indefinite
suspension period.

{36} This supervised probationary period shall serve as an opportunity for Padilla to
mitigate the causes that led to this disciplinary proceeding. To that end, Padilla shall (1)
meet with retired judge Hon. Frank Gentry on a regular basis in an effort to improve
Padilla’s criminal law practice, (2) have cocounsel on all felony cases, (3) maintain
adequate support staff, (4) complete fifteen hours of continuing legal education in
criminal law and evidence in addition to the five hours of continuing legal education in
criminal law recommended by the Board, and (5) undergo a psychological assessment
at his own expense.

{37} At the conclusion of Padilla’s six-month supervised probationary period, Padilla
shall petition for reinstatement in accordance with Rule 17-214(B)(2) NMRA. This
petition shall include Judge Gentry’s independent analysis of Padilla’s progress during
the course of his supervised probation. The petition must also demonstrate compliance
with the conditions of reinstatement enumerated in our order of July 9, 2019, and in this
opinion. We encourage Padilla to fastidiously pursue the conditions of his reinstatement
as a petition once denied may not again be filed “prior to the expiration of a twelve (12)
month period[.]” Rule 17-214(B)(2).

{38} In modifying the Board’s recommended discipline and imposing this partially
deferred indefinite suspension, we consider the numerous mitigating factors found by
the Board. We commend Padilla for taking swift action to reimburse Defendant, his
former client, for the full amount paid for the representation and to implement measures
to improve his practice. We appreciate Padilla’s cooperation in these disciplinary
proceedings and note his substantial remorse for his misconduct.

III. CONCLUSION

{39} We adopt the Board’s findings of fact and conclusions of law in their entirety. We
indefinitely suspend Padilla from the practice of law for no less than one year, subject to
partial deferment and probationary requirements as set forth in this opinion and in our
order of July 9, 2019.

{40} IT IS SO ORDERED.

BARBARA J. VIGIL, Justice

WE CONCUR:

MICHAEL E. VIGIL, Justice

C. SHANNON BACON, Justice

DAVID K. THOMSON, Justice