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In re Fandey11/7/1994
DISCIPLINARY PROCEEDING
Per Curiam.
This matter came before the Court following disciplinary proceedings conducted pursuant to the Rules Governing Discipline, SCRA 1986, 17-101 to 17-316 (Repl. Pamp. 1991 & Cum. Supp. 1994). In accordance with an agreement not to contest and consent to discipline reached pursuant to Rule 17-211(A), H. Daniel Fandey does not contest the allegations that he committed various violations of the Rules of Professional Conduct, SCRA 1986, 16-101 to 16-805 (Repl. Pamp. 1991 & Cum. Supp. 1994). Pursuant to Rule 17-211(B)(1)(a), we approve and adopt the Disciplinary Board's acceptance of Fandey's consent to discipline and impose a period of suspension.
On or about March 1, 1991, Robert Westphal retained Fandey to represent him in a bankruptcy matter. Westphal agreed to pay attorney's fees in the amount of $600.00 for preparation and filing of the bankruptcy and a $120.00 filing fee. Over a period of months, Fandey proceeded to draft the requested bankruptcy pleadings on several occasions, however, Fandey failed to file the bankruptcy petition on behalf of Westphal. At the time Fandey represented Westphal he failed to communicate adequately with the client and, despite repeated messages, Westphal was able to speak with Fandey on only a few occasions. Subsequently, on August 22, 1991, Westphal contacted Fandey's office and was informed that the office no longer handled bankruptcies and that his case had been transferred to another attorney in the Las Cruces area. At no time was the client advised of the transfer of his bankruptcy file from Fandey's office to another attorney and Westphal later recovered his papers and retained other counsel to proceed with the bankruptcy case.
The foregoing allegations were contained in the specification of charges and Fandey agreed not to contest the allegations that his conduct in regard to his representation of Westphal violated Rules 16-103, 16-104(A), 16-105(A), and 16-116(D).
On or about February 22, 1991, Jeff Schell retained Fandey to represent him in a DWI matter, which included the criminal charge and the administrative license revocation proceeding. Fandey was paid a fee of $1,000 -- $500 for each case -- and he subsequently entered an appearance in both cases. Fandey timely notified the Motor Vehicle Division of his representation of Schell and requested a hearing on the revocation of the client's driver's license. On or about March 5, 1991, the Motor Vehicle Division mailed certain documents pertaining to the DWI revocation proceeding, including a notice of hearing set for March 18, 1991, at the Las Cruces office of the Motor Vehicle Division.
Despite the fact that the Motor Vehicle Division correspondence was sent to Fandey's business address of record, he failed to claim the correspondence relating to the scheduled administrative hearing on Schell's driving privilege. As a result of Fandey's failure to claim the notice, he did not appear at the scheduled hearing and Schell's driving privilege was revoked. On or about April 1, 1991, Fandey filed a notice of appeal requesting that the District Court of Dona Ana County reconsider the results of the administrative revocation hearing. Subsequently, on November 1, 1991, the district court dismissed the appeal for lack of prosecution.
The allegations arising from Fandey's representation of Schell were contained in the specification of charges. Fandey agreed not to contest allegations that his conduct in regard to his representation of Schell violated Rules 16-101, 16-102(A), 16-103, 16-104(A), 16-105(A), 16-804(D), and 1
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