{ "id": 716980, "name": "In the Matter of Philip W. STEERE, Esq., An Attorney Admitted to Practice Before the Courts of the State of New Mexico", "name_abbreviation": "In re Steere", "decision_date": "1990-08-29", "docket_number": "No. 19337", "first_page": "405", "last_page": "408", "citations": [ { "type": "official", "cite": "110 N.M. 405" }, { "type": "parallel", "cite": "796 P.2d 1101" } ], "court": { "name_abbreviation": "N.M.", "id": 8835, "name": "Supreme Court of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "102 N.M. 214", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1580046 ], "weight": 2, "year": 1984, "pin_cites": [ { "parenthetical": "attorney engaged in conduct adversely reflecting on his fitness to practice law by offering compensation to witnesses contingent upon content of witness' testimony" }, { "parenthetical": "attorney engaged in conduct adversely reflecting on his fitness to practice law by offering compensation to witnesses contingent upon content of witness' testimony" } ], "opinion_index": 0, "case_paths": [ "/nm/102/0214-01" ] } ], "analysis": { "cardinality": 673, "char_count": 11792, "ocr_confidence": 0.795, "pagerank": { "raw": 1.2240919645422112e-07, "percentile": 0.599795393476608 }, "sha256": "2beece2976904e0153f406f58c5a76ac3c06f33154d2cdc03d55d5984f254f37", "simhash": "1:255b9010e8a4ff40", "word_count": 1860 }, "last_updated": "2023-07-14T22:33:30.469339+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "In the Matter of Philip W. STEERE, Esq., An Attorney Admitted to Practice Before the Courts of the State of New Mexico." ], "opinions": [ { "text": "OPINION\nPER CURIAM.\nThis matter is before the court following disciplinary proceedings conducted pursuant to the Rules Governing Discipline, SCRA 1986, 17-101 through 17-316 (Repl. Pamp.1988 & Cum.Supp.1990), wherein attorney Philip W. Steere was found to have committed various violations of the Rules of Professional Conduct, SCRA 1986, 16-101 through 16-805 (Repl.Pamp.1988 & Cum.Supp.1990). While we adopt most of the Disciplinary Board\u2019s findings of fact and conclusions of law, we shall defer part of our ruling on the sanctions recommended by the Board pending further proceedings.\nThe disciplinary charges in this matter arose out of Steere\u2019s representation of Mr. Glenn Thornton, who was a client of the public defender\u2019s office in Alamogordo, New Mexico. That office was appointed by the district court in April 1988 at Thornton\u2019s arraignment on three felony counts of fraud, one misdemeanor count of fraud, and one felony count of larceny.\nPrior to the court\u2019s appointment of a public defender, Thornton had been represented by private counsel, Michael F. McCormick, who thereafter became an assistant district attorney for the Twelfth Judicial District. A special prosecutor was appointed to pursue the charges against Thornton because of McCormick\u2019s association with the district attorney\u2019s office and his prior representation of Thornton.\nDue to subsequent resignations of the two other public defenders in the Alamogordo office, Steere assumed the representation of Thornton around August 1, 1988. A jury trial had been set for August 29, 1988. A few days after he became aware of the trial setting, Steere went with his investigator to talk to several of the complaining witnesses. He learned that some of those witnesses were willing to execute an affidavit of non-prosecution in exchange for various kinds of restitution.\nIn one felony count of- the indictment against Thornton, he was alleged to have defrauded Mr. and Mrs. Rivers of $300.00 that had been credited to him on an open account at their store. Steere and his investigator met with the complainants who demanded restitution in the amount of $4,000.00. Steere negotiated that amount to $969.00, which purportedly represented the original loss of $300.00 plus $300.00 for one year\u2019s interest, lost wages and expenses incurred as a result of the Rivers\u2019 travel to Alamogordo for three previous court proceedings, and miscellaneous other costs.\nWith regard to another felony count of fraud and one felony count of larceny, a complainant named McKinley agreed to accept $1,000.00 and $266.00 respectively, which were the approximate values of the property taken from him. Both the Rivers and McKinley subsequently signed affidavits of non-prosecution in exchange for payments of the aforementioned amounts.\nSteere asked another complaining witness named Melton \u201chow much [cash] would it take?\u201d but Melton refused to sign an affidavit of nonprosecution and was paid nothing for restitution in connection with another felony count.\nPrior to trial, the signed affidavits were filed with the district court. Except for the name of the affiant, each followed the same form:\n\u201cI_, wish to state that I am the victim and complaining witness in this case, and that I believe the best interest of all parties would be served if the above-named Defendant were not prosecuted. I do not wish to press charges against this individual nor appear in Court to testify against him. I further request that all charges be dropped and that the investigation be terminated. I sign this Affidavit freely and voluntarily.\u201d\nThese affidavits were obtained with the knowledge of the special prosecutor. The complaining witnesses asked him if it was all right to accept restitution, and the prosecutor\u2019s advice was to \u201cfollow [your] conscience.\u201d\nApparently it.is common practice to obtain such affidavits in the Twelfth Judicial District, particularly in connection with the prosecution of worthless check cases. Where restitution payment has been made in exchange, the prosecutor may consider a plea to a lesser charge or outright dismissal.\nWe believe this practice poses significant dangers to the fair and orderly administration of justice. Certainly it is the policy in this state to seek restitution from convicted persons on behalf of their victims. See NMSA 1978, \u00a7 31-17-1 (Repl.Pamp.1990). Nevertheless, when a witness in a criminal case has been offered money in exchange for a sworn statement, there arises the appearance that certain testimony has been purchased, at least to the extent that any part of such affidavit may become a part of the public record or used as impeaching evidence at a subsequent hearing or trial. Although the money offered may be characterized as restitution, where the amount becomes privately negotiable rather than determined under the court\u2019s supervision, it may appear that a defendant has bought the favor of an adverse witness who would otherwise have cause to resent defense counsel\u2019s approach. Moreover, while the prosecutor is not bound by the wishes of a witness not to appear and testify as stated in such an affidavit, the message to the prosecutor is that he or she may have more difficulty securing or dealing with a necessary witness whose interest in the pursuit of justice may have been diminished by the recoupment of private damages.\nWe strongly disapprove of the practice by any officers of the court or their agents that involves the payment of money to an alleged victim in exchange for that person\u2019s execution of any sworn statement. See In re Ayala, 102 N.M. 214, 693 P.2d 580 (1984) (attorney engaged in conduct adversely reflecting on his fitness to practice law by offering compensation to witnesses contingent upon content of witness\u2019 testimony). While we affirm the public policy of restitution to crime victims and find nothing per se improper about an affidavit of non-prosecution, it was the combination of these two elements on a quid pro quo basis in this case that we believe constituted conduct prejudicial to the administration of justice in violation of Rule 16-804(D), and which adversely reflected on Steere\u2019s fitness to practice law in violation of 16-804(H).\nOn the morning of Thornton\u2019s scheduled trial, the special prosecutor offered a plea bargain that was accepted and presented to the court. The plea agreement was approved, a presentence report was ordered, and Thornton\u2019s release on bond was continued to the December 1988 sentencing hearing.\nIn October 1988, Thornton showed Steere documents indicating that Thornton had received an insurance settlement of $175,-000.00. On November 1, 1988, McCormick re-entered the case as Thornton\u2019s privately-retained counsel, having resigned from the district attorney\u2019s office.\nSteere continued to represent Thornton as co-counsel, and, in mid-November, he and McCormick met with the district attorney, Bert Atkins, to discuss replacing the special prosecutor and amending the plea agreement. Prior to that meeting, Thornton gave McCormick $10,000.00 in cash to show to Atkins. When Atkins was shown this money, he became concerned that he was being \u201cset up;\u201d nevertheless, he continued the meeting. Defense counsel suggested that Atkins join with them in moving the court to set aside the plea agreement and permit a misdemeanor plea. It also was suggested that the cash could be used to pay substantial fines and court costs, including the fees of the special prosecutor, and to make a substantial contribution to Crime Stoppers or some charitable organization. Mr. Atkins declined to involve himself in these proposals, and no transaction was consummated.\nSome time after this meeting, but prior to sentencing, Steere agreed to meet with Thornton at his client\u2019s home. While there, Steere told Thornton that there was \u201cabsolutely no problem\u201d in taking $50,000.00 to the special prosecutor to have him \u201cthrow [the charges] in the garbage\u201d and that he still believed Atkins would \u201ctake $15,000.00 cash to dismiss them.\u201d The hearing committee in this matter found, however, that \u201c * * * it was not proved by a preponderance that these statements were intended to be taken as a representation of an ability to bribe a public official.\u201d\nNotwithstanding the latter finding, the hearing committee also expressed its unanimous belief that Steere\u2019s testimony before them concerning the aforementioned conversation with his client exhibited a \u201creckless disregard for the truth\u201d and that his testimony was intended to mislead the committee. Based on that testimony and the committee\u2019s comments thereon, the Disciplinary Board concluded that, in addition to his violation of Rules 16-804(D) and (H) while representing Thornton, Steere had engaged in conduct before the committee involving deceit and misrepresentations contrary to Rule 16-804(C). The Board consequently enhanced the committee\u2019s recommendation of a formal reprimand to an indefinite suspension for a period of no less than two years with certain terms and conditions of reinstatement.\nWe believe the following ruling, however, is more appropriate. On the one hand, a formal reprimand is not sufficient to express the court\u2019s disapproval of the kind of conduct towards witnesses that Steere exhibited in his representation of Thornton. The repercussions of such conduct invite disregard of a citizen\u2019s duties as a witness, disrespect of the judicial system, and disrepute for officers of the court. Steere\u2019s conduct while representing his client warrants public censure.\nOn the other hand, with regard to Steere\u2019s alleged misconduct during his testimony before the hearing committee, we believe procedural due process requires that he be given notice and an opportunity to be heard with respect to whether he intended to violate Rule 16-804(C). Consequently, we will defer ruling on any further sanctions in that regard and remand for further proceedings in accordance with the formal charging procedures provided by the Rules Governing Discipline.\nIt is ordered that Philip W. Steere be and hereby is publicly censured for conduct that was prejudicial to the administration of justice, and which adversely reflected on his fitness to practice law.\nIt is further ordered that this public censure shall be published in the New Mexico Reports and the Bar Bulletin and shall be filed in the office of the clerk of the supreme court pursuant to Rule 17-206(D).\nIt is further ordered that this matter shall be remanded, along with the records and exhibits heretofore submitted, to the hearing committee for further proceedings consistent with this opinion.\nCosts in the amount of $6,373.17 are assessed against Philip W. Steere and shall be paid on or before December 1, 1990.\nIT IS SO ORDERED.\n. Compare Rule 16-304(B), which prohibits a lawyer from offering an inducement to a witness prohibited by law. NMSA 1978, Section 31-17-1 (Repl.Pamp.1990), does not limit the payment of restitution exclusively to post conviction proceedings. In addition, the statutes provide for the payment of expert witness fees, as well as reimbursement of per diem and mileage expenses for both expert and ordinary witnesses. See NMSA 1978, \u00a7 38-6-4 (Repl.Pamp. 1987).\n. Compare Rule 16-804(F), which prohibits a lawyer from stating or implying an ability to influence improperly a public official. We believe that in order to promote public respect for the integrity of our system of criminal justice, this rule should be construed literally and strictly observed.", "type": "majority", "author": "PER CURIAM." } ], "attorneys": [ "Charles A. Wyman, Deputy Chief Disciplinary Counsel, Albuquerque, for Disciplinary Bd.", "Philip W. Steere, Las Cruces, pro se." ], "corrections": "", "head_matter": "796 P.2d 1101\nIn the Matter of Philip W. STEERE, Esq., An Attorney Admitted to Practice Before the Courts of the State of New Mexico.\nNo. 19337.\nSupreme Court of New Mexico.\nAug. 29, 1990.\nCharles A. Wyman, Deputy Chief Disciplinary Counsel, Albuquerque, for Disciplinary Bd.\nPhilip W. Steere, Las Cruces, pro se." }, "file_name": "0405-01", "first_page_order": 433, "last_page_order": 436 }