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In re Evans2/10/1995
Per Curiam.
This matter came before the Court following two separate disciplinary proceedings conducted pursuant to the Rules Governing Discipline, SCRA 1986, 17-101 to -316 (Repl. Pamp. 1991 & Cum. Supp. 1994), in which respondent Jake R. Evans was found to have committed various violations of the Rules of Professional Conduct, SCRA 1986, 16-101 to -805 (Repl. Pamp. 1991 & Cum. Supp. 1994). Pursuant to Rule 17-316(D) we adopt the disciplinary board's findings of fact, Conclusions of law, and recommendation to disbar respondent from the practice of law pursuant to Rule 17-206(A)(1). In addition, certain conditions are imposed that must be satisfied before consideration of a petition for reinstatement.
Between 1989 and 1992, Evans represented Consuelo Coyazo regarding various legal matters. The representation included assisting Coyazo in obtaining $100,000 in life insurance proceeds on her deceased husband's policy; Coyazo was the named beneficiary on the policy. During his representation of Coyazo, Evans entered into business transactions with her consisting of three separate $20,000 loans by Coyazo to Evans between January 1990 and March 1992.
Evans prepared and delivered to Coyazo a promissory note and mortgage to secure $40,000 of the loan. The collateral listed was Evans' residence on Hillrise Drive in Las Cruces, New Mexico. Evans represented to Coyazo that the Hillrise property was free and clear of prior liens, when in fact it had a prior mortgage. Evans also prepared and delivered to Coyazo a promissory note and mortgage to secure $20,000 of the loan. The collateral listed was 4.99 acres of real estate identified as the Fairacres property, which Evans represented was free and clear of prior liens, when in fact it also had a prior mortgage.
In the course of engaging in these business transactions with his client, Evans failed to advise Coyazo to seek independent legal advice, made no effort to obtain independent legal advice for her, and failed to advise her fully on the reasonable and appropriate protection that could be afforded by private mortgage financing. Evans also failed to advise Coyazo of the need to promptly record each mortgage and made no effort to record the mortgages for her. In fact, Evans wrongfully instructed Coyazo to file the mortgages upon his death.
On the advice of others, Coyazo finally recorded her mortgages on March 15, 1993. By the time the mortgages were recorded, a lis pendens on Evans' Hillrise residence had been filed with respect to foreclosure proceedings by the First National Bank of Dona Ana County. Since Coyazo was not named in the foreclosure proceedings, her post- lis pendens lien effectively was foreclosed. With regard to the Fairacres property, on February 12, 1993, by a deed dated May 15, 1987, Evans conveyed the 4.99 acres in Fairacres to a third party. A title search on the two properties confirmed that prior to the recording of Coyazo's mortgages, Evans' Hillrise residence as well as the Fairacres property were encumbered with two recorded transcripts of judgment and two recorded federal tax liens, in addition to the recorded first mortgage liens, all of which were superior to any lien of Coyazo.
Rule 16-108(A) governs business transactions with or adverse to a client and provides as follows:
A lawyer shall not enter into a business transaction with a client or knowingly acquire an ownership, possessory, security or other pecuniary interest adverse to a client unless:
(1)the transaction and terms on which the lawyer acquires the interest are fair and reasonable to the client and are fully disclosed and transmi
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