SC Lawyer, January 2007, #1. Read This Case.

• Author: By John Freeman

South Carolina Lawyer

Ethics Columns.

SC Lawyer, January 2007, #1.

Read This Case

South Carolina LawyerJanuary 2007Read This CaseBy John FreemanAn eye-opening ethics decision was handed down by the New Mexico Supreme Court on September 28, 2006. The case is Matter of Estrada, 143 P.3d 731 (N.M. 2006). The opinion's tenor and emphasis on uncompromising ethical rectitude recalls our Supreme Court's ruling in Anonymous Member of the South Carolina Bar, 346 S.C. 177, 552 S.E.2d 10 (2001). The lawyer in the South Carolina case got a private sanction. The lawyer in Estrada did not fare as well.

The key facts in Estrada are simple and disturbing. The lawyer, Michele Estrada, was a law firm associate assigned to defend a personal injury case alleging a pharmacist had filled a child's Ritalin prescription with 60 methadone tablets. Methadone is a narcotic pain reliever similar to morphine. The court in Estrada honed in on three evidence-related failings: filing a false response to a request to admit, suppression of documentary evidence and using a forged document at trial.

In the course of investigating the case, Estrada and the pharmacist conducted an inventory, finding a surplus of 60 Ritalin tablets and a shortage of 60 methadone tablets. The Supreme Court found that the inventory occurred in late February 2002. Pending at the time was a request for admission propounded by the plaintiff calling for Estrada's client to admit that inventory records showed at least 60 methadone tablets were missing. Seven days after conducting the inventory, Estrada answered, denying the request to admit. A short time later, she wrote the client and recommended that the client admit liability. Less than three months later, Estrada wrote a litigation report finding that it was "fairly certain" that the pharmacist did "dispense the wrong medication" and that he was "a very honest person" who was "devastated by the mistake." If the case proceeded, Estrada warned that "it will be difficult to rein him in."

On March 15, 2002, Estrada correctly answered a request to produce documents pertaining to reports of lost or stolen drugs made by the defendant pharmacy to the New Mexico Board of Pharmacy. No such report existed at the time, and that was Estrada's response. Less than three weeks later, at Estrada's instruction, a report was filed by the pharmacy's regional manager with the Board disclosing the litigation and "that the pharmacist had mis-filled a prescription." The manager testified she told Estrada that the form had been filed. Estrada never sought a copy of the form, never supplemented the answer to the document request and never disclosed to the plaintiff the existence of the subject "Significant Adverse Drug Event Report Form."

Despite Estrada's advice that liability be admitted, the case went to trial on the merits. At trial Estrada introduced through the "very honest" pharmacist who had been "devastated by the mistake" a prescription used to explain away the missing methadone. This ploy failed, for "it became apparent [the] prescription ... was a forgery," and a mistrial ensued. The prescription had been "serendipitously discovered" just before trial. In the disciplinary proceedings, both Estrada and disciplinary counsel agreed the document was bogus.

In condemning Estrada's missteps in handling discovery and evidence, the New Mexico court found Estrada's her misbehavior amounted to incompetence under Rule 1.1. In so holding, it relied on South Carolina precedent, In re Moore, 329 S.C. 294, 494 S.E.2d 804, 807 (1997) (finding that failure to reply to discovery requests violated South Carolina's Rule 1.1, which requires an attorney to provide competent representation to a client). Estrada's discovery abuses were also found violative of Rule 3.4(a) (obstructing access to evidence) and 3.4(d) (failure to diligently answer discovery). The court further found that she violated Rules 1.2(d) (prohibiting misrepresentation) and 3.1 (barring frivolous positions) by pursing a meritless defense and mislead the court when she asserted "a defense that her own investigation indicated was unsupported by the evidence." Estrada's false discovery answers were also found violative of Rule 8.4 on the ground they were dishonest and deceptive and prejudicial to the administration of justice. The latter finding was also applied to her failure to verify the authenticity of the forged prescription before using it at trial.

The hearing panel expressed concern that Estrada was "a relatively inexperienced attorney," a subordinate lawyer in her firm who had been abused by the pharmacy's "out-of-state national counsel" who "consistently and forcefully" instructed Estrada that the plaintiff's case was meritless and the methadone "discrepancy would be accounted for." The New Mexico court was unimpressed. "Respondent placed her duty toward the New Mexico judiciary and the administration of justice in a subordinate position to the desires of her client to succeed in litigation ... [S]uch conduct will not be tolerated." To those who would find Estrada's discovery failings excusable as zealous representation, the New Mexico court offered this searing counterpoint: "[W]hen attorneys do not comply with the rules of discovery, rather than engaging in zealous advocacy for their clients, they are violating their professional obligations to the system of justice itself."

Toward the end of its opinion, the New Mexico court turned its gaze in the direction of the pharmacy's out-of-state national counsel who rejected Estrada's good advice and seems to have aided and abetted her misconduct, or at least to have pressured her into unethical behavior. "Finally we emphasize that when lawyers are providing services in this jurisdiction, they are subject to our rules and will be held responsible for actions they take in violation of those rules." In South Carolina, this concept that ethics rules have an extraterritorial reach touching foreign state lawyers is expressly embodied in Rule 8.5(a).

As stated earlier, lawyer Estrada's sanction was more severe than that imposed in Anonymous Member: a one-year suspension, deferred, with Estrada placed on probation. In faulting Estrada for her glaring misbehavior, what the court termed "serious violations," the New Mexico court took a harder line than that taken by the New Mexico Disciplinary Board's appellate ethics panel when it reviewed the hearing committee's findings and recommendations concerning Estrada's conduct. Showing the ambivalence lawyers have toward discovery abuse, the appellate panel, amazingly, had "accepted and adopted the hearing committee's finding of fact except those that found Respondent had violated the Rules of Professional Conduct" and then proceeded to dismiss the ethics complaint against Estrada.

Fortunately, the New Mexico Supreme Court, relying in part on South Carolina authority, got it right. Look for the Estrada case to be used in professional responsibility texts henceforth as a mile marker showing the need for honest and open discovery no matter what the client's wishes.