In re: Guillermo Ramo

Filing

UNPUBLISHED OPINION FILED. [16-10353 Affirmed as Modified] Judge: WED, Judge: JLD, Judge: LHS. Mandate pull date is 03/07/2017 [16-10353]

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Date Filed: 02/14/2017

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 16-10353

United States Court of Appeals
Fifth Circuit

FILED
February 14, 2017

In re: GUILLERMO H. RAMOS,

Lyle W. Cayce
Clerk

Appellant

Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:16-MC-9
Before DAVIS, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Plaintiff Guillermo H. Ramos, an attorney, appeals an order suspending
him from the practice of law in the Northern District of Texas for a period of
four years.

We conclude that the district court abused its discretion in

determining the number of years Ramos should be suspended. We modify the
term but otherwise affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In October 2015, Ramos represented a client in a foreclosure action that
was removed to the United States District Court for the Northern District of
Texas. On December 2, 2015, the district court ordered the plaintiff to file an

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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amended complaint by December 16, 2015, that complied with the Federal
Rules of Civil Procedure, the Local Civil Rules of the Northern District of
Texas, and the district court’s judge-specific requirements.

No amended

complaint was filed by the deadline. As a result, the district court dismissed
the plaintiff’s claims on December 17, 2015.
On January 19, 2016, Ramos moved for reconsideration under Rule 60,
asserting that he never received notice either of the district court’s December
2015 orders or any other documents filed in the suit until after the case was
dismissed. Ramos also filed a memorandum in support of the motion for
reconsideration.

Ramos’s sole argument was that his actions constituted

“excusable neglect” because he was unaware that the court’s electronic filing
system contained an erroneous e-mail address used to provide him notice.
Ramos asserted that a request to correct his e-mail address was sent to the
Clerk of Court on the same day the district court entered the dismissal order.
In denying the motion for reconsideration, the district court noted the
docket sheet reflected that Ramos did indeed receive notice of all the filings in
the underlying action as his correct e-mail address was provided by defendants’
counsel upon the filing of the notice of removal. Although the district court
acknowledged Ramos’s main user account e-mail for purposes of CM/ECF
notifications was erroneous, it also noted the e-mail associated with the case
was his current and correct address.

The court also determined it was

necessary to “issue a separate order concerning [Ramos’s] behavior” in making
the representations about notice.
On January 20, 2016, the district court ordered Ramos to show cause
why he should not be disciplined under Rule 83.8 of the Local Civil Rules of
the Northern District of Texas. The court concluded “that the majority of
[Ramos’s] representations in the motion and memorandum are false”
regarding his lack of notice. The district court further noted that Ramos’s
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representation implying it was an error by the Clerk of Court to update his
main user account, which prevented Ramos from receiving notice, was also
false.
The court determined Ramos was in violation of Local Rules 83.8(b)(1)
& (3) for engaging in unethical conduct unbecoming a member of the bar. 1
Additionally, the court found his failure to file an amended complaint in the
underlying action indicated Ramos’s inability to conduct litigation properly.
Accordingly, the district court ordered Ramos to show cause why he should not
be disciplined, including possible suspension or disbarment, and required that
all factual statements in the response be verified by a person having personal
knowledge of the facts stated.
Ramos timely filed his Verified Response and stated that he discovered
his e-mail address was incorrect when checking the docket in another case on
the evening of December 16, 2015. Ramos asserted that, upon this discovery,
his employees were instructed to submit a membership update to the Clerk of
Court via fax, which included Ramos’s correct e-mail address. According to
Ramos, the fax was submitted approximately three hours before the district
court entered its final judgment dismissing the suit.
In his Verified Response, Ramos admitted he had received the e-mail
notifications for the litigation but claimed he only became aware of them after
conducting further research of his e-mail account and submitting the correct email address to the clerk’s office. Ramos stated he began drafting the motion
for reconsideration prior to this realization, but due to an undisclosed personal
difficulty, he failed to update the motion to reflect his knowledge of the e-mails.
Ramos maintained his statements to the court regarding his lack of e-mail

The district court also determined Ramos’s conduct was unethical in violation of
Rule 3.03 of the Texas Disciplinary Rules of Professional Conduct.
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notification were not knowing or intentional misrepresentations.

He also

requested the Chief Judge of the Northern District of Texas convene a threejudge panel pursuant to Local Civil Rule 83.8(h)(3) to make any final
determination concerning possible discipline. The district court determined
Ramos’s Verified Response raised additional concerns for why disciplinary
action should be considered and created a separate miscellaneous matter to
address this issue.
On February 8, 2016, the district court entered an order in the separate
cause setting forth its basis for concern over Ramos’s actions. The district court
concluded that Ramos’s (1) failure to comply with Rule 83.13(b), even if based
on his staff’s errors, demonstrated his inability to conduct litigation properly,
(2) acknowledged lack of receipt of electronic notice also demonstrated his
inability to conduct litigation properly, (3) failure to read court e-mails and to
file a truthful motion due to distractions in his personal life is unethical
conduct that is unbecoming a member of the bar, and (4) request for a threejudge panel to hear any disciplinary action against him was a further
indication of Ramos’s inability to conduct litigation properly. Although the
district court noted Ramos took several mitigating steps, 2 the court found them
to be unpersuasive and inferred Ramos’s actions were merely used to hide his
mistake from his client. Before ruling definitively on the disciplinary action,

According to the district court, Ramos’s mitigating efforts included: (1) immediately
submitting his proper e-mail address upon discovering his main user account address was
erroneous; (2) re-filing the underlying plaintiff’s state court petition and paying all associated
expenses; (3) paying the costs in the underlying action; and (4) correcting his law firm’s
procedures to prevent this situation from occurring again. The court determined these
actions indicated that Ramos “has not informed his client of the dismissal of the underlying
case” and that the nondisclosure “constitutes conduct unbecoming a member of the bar and
is unethical conduct.” Further, the court noted that correcting office procedures is expected
behavior.
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the district court deemed it appropriate to provide Ramos an additional
opportunity to file a written response and to request a hearing before the court.
On February 17, 2016, Ramos filed his latest response with his and his
client’s declarations attached. Ramos claimed that his errors and omissions in
the underlying action were the result of inexperience and poor business
practices rather than deceitful or intentional conduct.

In his declaration,

Ramos noted that he sought the assistance of a solo-practice management
expert to review his “client intake, case correspondence, and services-planning
protocols to assure errors and lack of oversight and redundancy . . . do not occur
again.” Based on these factors and the fact he fully explained the matter to his
client, Ramos argued he lacked “the bad faith element necessary for severe
sanctions such as suspension or disbarment . . . .” He also communicated a
willingness to attend any CLE or other education programs the court deemed
necessary to improve his law practice. Upon review of Ramos’s response, the
district court determined a further response was necessary before it could
determine what disciplinary action to take. The court ordered Ramos to submit
his risk-management plan and a statement from the solo-practice management
expert describing the nature of his advice to Ramos no later than March 21,
2016. Both documents were filed under seal.
On March 22, 2016, the district court entered an order suspending
Ramos from practicing in the Northern District of Texas for four years. The
district court noted its review of Ramos’s risk-management plan and other
responses confirmed that Ramos “is unable to conduct litigation properly” in
violation of Local Civil Rule 83.3(b)(4).

Further, the district court found

Ramos’s “false representations to the court . . . constitutes conduct unbecoming
a member of the bar and is unethical conduct.” According to the district court,
Ramos’s actions provided clear and convincing evidence to support the
imposition of sanctions against him and no lesser disciplinary action would
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adequately address his conduct. Rather than imposing disbarment, the court
sought to give Ramos “something of a benefit of the doubt by limiting his
discipline to” a four-year suspension. Ramos’s timely appeal followed.
DISCUSSION
“We review de novo whether an attorney’s conduct is subject to sanction.”
In re Sealed Appellant, 194 F.3d 666, 670 (5th Cir. 1999). As “[c]ourts enjoy
broad discretion to determine who may practice before them and to regulate
the conduct of those who do,” we review any discipline of an attorney for abuse
of discretion. United States v. Nolen, 472 F.3d 362, 371 (5th Cir. 2006). A court
abuses its discretion “if the ruling is based on an erroneous view of the law or
on a clearly erroneous assessment of the evidence.” In re: Deepwater Horizon,
824 F.3d 571, 577 (5th Cir. 2016) (quotation marks omitted).
“The question before us is not whether we would [impose the same
punishment] but, rather, whether the district court abused its discretion in
doing so.” In re Sealed Appellant, 194 F.3d at 673. When imposing sanctions
against an attorney, “a court should consider the duty violated, the attorney’s
mental state, the actual or potential injury caused by the attorney’s
misconduct, and the existence of aggravating or mitigating factors.”

Id.

Moreover, given the quasi-criminal nature of an attorney’s suspension, “any
disciplinary rules used to impose this sanction . . . must be strictly construed
resolving ambiguities in favor of the person charged.” United States v. Brown,
72 F.3d 25, 29 (5th Cir. 1995).
Ramos presents two primary arguments on appeal. First, Ramos argues
the district court abused its discretion in imposing a four-year suspension
because that penalty is disproportionate to his allegedly unethical conduct.
Ramos attempts to distinguish his conduct from that of attorneys for whom we
affirmed similar punishments on the basis that his conduct was neither
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egregious nor willful, which was conduct we previously determined warranted
disbarment or a lengthy suspension.
His second argument is that the district court erred by failing to consider
mitigating factors and lesser penalties.

Specifically, Ramos contends the

district court failed to consider the factors we set forth in In re Sealed Appellant
before determining the proper penalty for this misconduct.

Additionally,

Ramos argues the district court’s imposed punishment runs counter to our
precedent that requires the court to “use the least restrictive sanction
necessary to deter the inappropriate behavior.” In re First City Bancorporation
of Texas Inc., 282 F.3d 864, 867 (5th Cir. 2002).
We begin by acknowledging a district court’s responsibility to supervise
the conduct of attorneys who are admitted to practice before it. See Crowe v.
Smith, 151 F.3d 217, 230 (5th Cir. 1998). “The court’s control over a lawyer’s
professional life derives from his relation to the responsibilities of a court.”
Theard v. United States, 354 U.S. 278, 281 (1957).

Attorney discipline

proceedings afford courts the opportunity to uphold the integrity of the legal
profession and protect the public from any attorney misconduct. See Crowe,
151 F.3d at 229–30. To ensure district courts temper the exercise of that power
with necessary restraint, we “take seriously our responsibility to make a
careful review of the fact-finding and the district court’s exercise of discretion.”
In re Moity, 320 F. App’x 244, 247 (5th Cir. 2009).
Ramos does not even argue that the district court erred in penalizing
him for his conduct in violation of the Local Rules of the Northern District of
Texas.

3

The district court explained that clear and convincing evidence

As Ramos’s discipline was imposed for a violation of the district court’s local rules,
there was no requirement for the district court to find that Ramos’s conduct constituted bad
faith. See In re Goode, 821 F.3d 553, 559 (5th Cir. 2016).
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supports the conclusion that Ramos engaged in misconduct and displayed an
inability to conduct litigation properly. We agree.
Our inquiry does not end there. Having determined that Ramos engaged
in conduct for which some penalty was proper, the question becomes whether
the district court erred in weighing the evidence when fashioning the penalty.
Put another way, did the district court “use the least restrictive sanction
necessary to deter the inappropriate behavior”? See First City, 282 F.3d at 867.
We will apply the factors from In re Sealed Appellant 4 in our review.
Several of our recent decisions shed light on our process for assessing the
scope of attorney discipline imposed by district courts. In a nonprecedential
opinion that we find convincing, we held that a district court acting under its
inherent authority abused its discretion when it suspended an attorney from
practicing in that district for a period of three years, despite the court’s detailed
record of the attorney’s misrepresentations. See White v. Reg’l Adjustment
Bureau, Inc., 641 F. App’x 298, 300 (5th Cir. 2015), cert. denied sub nom. Radbil
v. Reg’l Adjustment Bureau, Inc., 136 S. Ct. 2517 (2016). We determined the
lower court adequately explained its finding of bad faith, which was supported
by the requisite clear and convincing evidence. Id. at 299. Nevertheless, our
prior cases supported that any suspension longer than one year would be an
abuse of discretion given the facts in the record. Id. at 300.
In another recent unpublished opinion, we affirmed a sixty-day
suspension of an attorney who made affirmative misrepresentations to the
court on eight occasions that motions she submitted were unopposed. In re
Grodner, 587 F. App’x 166, 170 (5th Cir. 2014). We agree with the Grodner
For completeness, we note that in setting forth the factors courts should consider
when imposing sanctions, we have cited favorably to the ABA Standard for Imposing Lawyer
Sanctions 3.0; it recommends suspensions be for a period not greater than three years. See
In re Sealed Appellant, 194 F.3d at 673. At least one other circuit has generally adhered to
this recommendation. See In re Aranda, 789 F.3d 48, 59 n.11 (2d Cir. 2015) (collecting cases).
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panel that the penalty was “anything but excessive.”

Id.

Similarly, we

affirmed a one-year suspension for an attorney who “was disciplined for his
conduct towards a judicial law clerk during a telephone conversation, for
making misrepresentations to the court during a contempt hearing, and for
impugning the integrity of two federal judges in a prior brief before th[e] court.”
Moity, 320 F. App’x at 244–45. A limit of one year for the penalty in Moity
appears correct to us.
Quite recently, we affirmed a one-year period of discipline imposed by
the judges of the Eastern District of Louisiana. See In re Mole, 822 F.3d 798,
800 (5th Cir. 2016). There, an attorney attempted to manipulate the judicial
process by hiring co-counsel to force the presiding judge to recuse himself from
the case. Id. All the judges of that district found the attorney’s conduct to have
violated several state rules for professional conduct. Id. at 801. The court
suspended the attorney from practice before the Eastern District of Louisiana
for a period of one year, with six months deferred. Id. On appeal, we noted
that the court took into account any aggravating or mitigating factors and
considered and applied the ABA standards, which were adopted in In re Sealed
Appellant, to fashion its discipline. Id. at 807. There was no abuse of the
court’s “discretion in imposing its chosen sanction.” Id.
Each of these cases present factual scenarios where attorneys engaged
in repetitive acts of misconduct over a lengthy period of time. Such conduct
can be labeled egregious under any system of measurement. “The sanction
levied must thus be commensurate with the egregiousness of the conduct.” In
re Whitley, 737 F.3d 980, 987 (5th Cir. 2013) (quotation omitted). Courts must
consider the duty violated by the attorney and the presence of aggravating or
mitigating factors. In re Sealed Appellant, 194 F.3d at 673.
The district court abused its discretion in suspending Ramos from
practicing in the Northern District of Texas for as long of a period as four years.
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Ramos’s behavior, although subject to punishment, was not part of a wider
pattern of misconduct. Rather, Ramos was a relatively inexperienced lawyer,
who sought advice from a solo practitioner expert to remedy his shortcomings,
with no prior disciplinary record, and who appeared remorseful.
The district court did not give any weight to these mitigating factors
when it concluded that “no lesser disciplinary action would adequately
address” Ramos’s inappropriate conduct. Beyond this conclusory statement,
there is no indication that the district court even considered a lesser penalty
than that of a lengthy suspension or disbarment. We certainly agree that lying
to the court is an offense worthy of penalty, but the balance of factors set forth
in In re Sealed Appellant does not weigh in favor of the draconian punishment
imposed by the district court.
In most circumstances, we would remand to the district court for
reassessment of the conduct in light of our decision, but that is unnecessary
today. Based on the factual record before us, we conclude that a one-year
suspension is the least severe sanction necessary to deter Ramos from
engaging in unethical conduct in the future. 5 Accordingly, we MODIFY the
district court’s order to reduce the suspension from four years to one year from
the date of imposition. As modified, we AFFIRM.

Although we are reducing the length of his suspension, we urge Ramos and any
practicing attorney to be mindful of the fact that personal integrity is essential to the due
administration of justice and a fundamental requirement for an officer of the court. See, e.g.,
In re Snyder, 472 U.S. 634, 644–45 (1985). “It is not enough that the doors of the temple of
justice are open; it is essential that the ways of approach be kept clean.” Hatfield v. King,
184 U.S. 162, 168 (1902).
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