NM Supreme Court Ignores Rules at Lawyer’s Disbarment Hearing; Disciplinary Counsel Makes Misrepresentations Without Fear of Rebuttal

April 25th, 2008

On December 19, 2007 at 1:30 p.m. oral argument on the hearing granted in attorney disciplinary case of In the Matter of Stuart L. Stein was held before the New Mexico Supreme Court.

PROCEEDING LEADING TO HEARING

In Stein’s disciplinary case before the Hearing Committee concerning the Clinesmith matter, it was recommended to the Disciplinary Board that he be suspended from the practice of law for six months. On Stein’s intermediate appeal to the Hearing Panel, made up of three appointed attorney members of the Disciplinary Board (William G. W. Shoobridge, Paul M. Fish and David S. Campbell), the recommendation to the New Mexico Supreme Court for professional sanctions was increased to disbarment. It was this recommendation of the Disciplinary Board that Stein appealed to the New Mexico Supreme Court by asking for a hearing under the rules, which was set for December 19, 2007.

RULES DIRECTED TO ORAL ARGUMENT

The New Mexico Rules of Appellate Procedure govern the procedures to be followed in matters before the Supreme Court and the Court of Appeals. N.M.R.A., Rule 12-101.A, New Mexico Rules of Appellate Procedure.

The Rules of Appellate Procedure state that “Unless otherwise ordered, the petitioner, movant or party first filing a notice of appeal shall open and close the argument.” N.M.R.A., Rule 12-214.D.

If the Disciplinary Board recommends suspension, disbarment, public censure or probation, it must file the recommendation with the Supreme Court. N.M.R.A., Rule 17-315.C. This is an administrative function. This filing is not an appeal; it is the method to obtain affirmation by the Court of the recommendation.

If either side wants a hearing before the Supreme Court, disciplinary counsel or the respondent attorney has 15 days to ask for a hearing. One only would request a hearing if they were not happy with the recommendation. Stein, not disciplinary counsel, asked for a hearing. Stein, not disciplinary counsel, wanted to challenge the recommendation of disbarment made by the Disciplinary Board.

The Rules Governing Discipline are silent concerning sequencing of oral argument that apply when there is a request for a hearing before the Supreme Court of New Mexico. See, N.M.R.A., Rule 17-316, New Mexico Rules Governing Discipline.

Stein, not disciplinary counsel, requested a hearing, effectively seeking an “appeal” to reverse the recommendation. Therefore, under any reasonable reading of the rules, he was the “movant” first requesting review or appeal of the recommendation and should have been allowed to open and close oral argument.

DAY OF ARGUMENT

The Order for oral argument required counsel to check in with the Clerk one half hour prior to the time oral argument was scheduled to begin. This is standard and normal procedure. Stein checked in and requested that his twenty minute argument time be split: allowing 12.5 minutes for opening and 7.5 minutes for rebuttal. The Clerk of the Supreme Court said that it was disciplinary counsel, not Stein, who gets opening and closing.

Stein requested the clerk to ask the court to allow him to open and close the oral argument. The rules required same. The last time Stein was before the Court on a disciplinary matter in 2005, the Bogarosh case, his California lawyer, Joe Dicks, requested and obtained the right to open and close oral argument.

The Clerk informed Stein just before oral argument began that the court had denied the request. This meant Joel L. Widman, Deputy Disciplinary Counsel, would have opening and closing argument.

Once again, Stein was refused the benefit of the announced rules of procedure in his disciplinary case. The New Mexico Supreme Court seemingly cared nothing for its rules, the rights of an appellant seeking redress from an adverse ruling below or to be consistent with its previous determination on Stein’s other discipline matter. The scales of justice were tilted in favor of disciplinary counsel.

Stein knew he was about to be screwed when the five Justices (Petra Maes, Richard Bosson, Edward Chavez, Patricio Serna and Charles Daniels) appeared from behind the curtain to take their places on the bench. None of them made eye contact with Stein. Each bore a sheepish, guilty expression as if they knew they were about to do something dishonorable. Read the rest of this entry »

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