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 »

Attorney Stuart L. Stein lodged a Bar complaint against Attorney Gregory W. MacKenzie on Nov. 15, 2006. The initial allegations against MacKenzie concerned his actions in the Clinesmith disciplinary case brought against Stein. (See, Post of Feb. 11, 2007, “Disciplinary Counsel’s Office Drags Feet on Bar Complaint Filed Against Their Lap Dog Lawyer”.)

Stein met with the Disciplinary Board’s Special Assistant Bar Counsel appointed to investigate MacKenzie, Martin Lopez, III, on April 5, 2007. After the meeting, Stein expanded his claims of ethical misconduct against MacKenzie in a letter to Lopez dated April 16, 2007. The expanded allegations centered around MacKenzie’s conduct in the Bogarosh disciplinary case brought against Stein. (See, Post of June 3, 2007, “Bar Complaint Against Attorney Gregory W. MacKenzie Expanded”.) Read the rest of this entry »

The Office of Disciplinary Counsel uses a double standard when bringing ethical charges against lawyers. Attorney Stuart L. Stein is currently being prosecuted for ethics violations by Deputy Disciplinary Counsel Joel L. Widman in the Clinesmith matter.

Back in 2004, Stein was in the midst of another disciplinary case, similar to the Clinesmith case, involving a client named Peter Bogarosh. (See Post of July 8, 2007.) Attorney Lawrence W. Kay was a witness in the Bogarosh case against Stein.

Barbara Boga-Rosh, the unstable daughter of Peter, was appointed as her father’s Permanent Guardian and Conservator. During the Bogarosh discipline case it was learned that at the request and direction of Barbara, Larry Kay prepared and had Mr. Bogarosh sign two amendments to his Living Trust. Stein’s lawyer asked Kay in a deposition if he ever suggested to anyone that the amendment be approved by the Court, since Peter was the ward in a full guardianship and conservatorship. Kay answered, “No.” (See, Bogarosh Disciplinary Hearing Transcript, 1-20-04, pg. 24.) Read the rest of this entry »

What if Disciplinary Counsel finds, in the course of prosecuting one lawyer, that one or more of their attorney witnesses are, themselves, guilty of violating the Rules of Professional Conduct in the very same case for which they are to be witnesses. What do they do? Their duty is clear under Rule 16-803.A. The Rule says a lawyer having knowledge of a violation of the Rules of Professional Conduct shall inform the appropriate professional authority.

But what if Disciplinary Counsel remains silent about the breach of the Rules of Professional Conduct by their witnesses? Are they in violation of the Rules of Professional Conduct by failing to report the transgression to the Disciplinary Board? Further, do they violate their obligation as prosecutors for the New Mexico Supreme Court by failing to disclose the wrongful acts of their witnesses to the charged lawyer in order to be fair and just? Read the rest of this entry »

A Petition for the Guardianship and Conservatorship of Bruce C. Clinesmith was brought by his daughter from his first marriage, Cathe Temmerman, in March of 2005. At the time the Petition was filed, Bruce had been blissfully married to his second wife, Ruth Clinesmith, for over 35 years. Bruce and Ruth survived their first spouses, each of whom died of cancer.

Temmerman, represented by Gregory W. MacKenzie, Esq. of Popejoy & MacKenzie, petitioned the Court to appoint Decades, LLC as Bruce’s permanent conservator and permanent guardian. Two principals of Decades, LLC are Barbara Singer and Nancy Oriola. To get to that point, the court first needed to appoint a guardian ad litem, a health care professional and a home visitor pursuant to N.M.S.A. Sec. 45-5-303.C, D and E and N.M.S.A. Sec. 45-5-407.B,C and D.

MacKenzie nominated Martha Brown of Geriatric Care Management, LLC as the court appointed visitor. He also nominated the health care professional and the guardian ad litem.

What do Barbara Singer, Nancy Oriola and Martha Brown have in common with Greg MacKenzie other than being nominated by his office in Bruce’s Guardianship and Conservatorship? Keep reading. Read the rest of this entry »

Deputy Disciplinary Counsel Joel L. Widman demonstrated, once again, his stupefying lack of legal knowledge when he tried to deny Attorney Stuart L. Stein the ability to have the lawyer of his choice, Joseph G. Dicks of San Diego, represent him at a deposition. Widman wanted to take Stein’s deposition prior to filing formal charges against Stein in the Anaya matter - a fee dispute case. Joe Dicks is not licensed to practice law in New Mexico.

The “right to counsel of one’s own choosing” in civil, criminal or quasi-criminal matters is well established and cannot be controverted. Attorney disciplinary matters are quasi-criminal in nature. Counsel of one’s choice is a fundamental Due Process right under the Fifth and Fourteenth Amendment to the United States Constitution. The right is absolute except in cases of attorney or client conflict of interest, which can be waived in most cases.

But what do you do when the lawyer you want to retain is not admitted to practice in the state where you need representation? Read the rest of this entry »

There will be no regular post this week because it is Father’s Day - Best wishes to all of the Fathers out there.

And to all you children who are blessed with still having your Father around: Don’t take him for granted. If you have never told your Father that you love him, don’t let another Father’s Day go by without finding a way to tell him just how much he means to you. Few of us ever know how much time we have left; don’t make the mistake of assuming that either you or he will be here next year. Love him today!

The Office of Disciplinary Counsel and the Disciplinary Board can move with lightning swiftness or at a snail’s-pace when investigating and prosecuting Bar complaints against New Mexico lawyers. The determinant of speed seems to depend on who is making the complaint and which lawyer is being targeted.

When ethical complaints are made against lawyers lacking the necessary “political” connections with the Office of Disciplinary Counsel or the Disciplinary Board, nothing stops the Office of Disciplinary Counsel’s rush through a superficial investigation, ignoring rules of procedure along the way, and quickly filing a formal specification of charges.

But when the ethical complaint is against a lawyer working in the Office of Disciplinary Counsel, or a lawyer who curries favor with Disciplinary Counsel or the D-Board, slow and deliberate is the order of the day. Timing of decisions and their general release are often coordinated for the selfish expediency of Disciplinary Counsel and/or the Disciplinary Board. Read the rest of this entry »

A Bar complaint made against Attorney Gregory MacKenzie has been expanded to include allegations of ethical misconduct going back to 2003 and spanning two different cases. Attorney Stuart L. Stein’s initial complaint concerning MacKenzie’s conduct, dated Nov. 15, 2006, is the subject of our Feb. 11, 2007 Post, “Disciplinary Counsel’s Office Drags Feet on Bar Complaint Filed Against Their Lap Dog Lawyer.”

The gist of the initial Bar Complaint against MacKenzie centered on MacKenzie’s involvement in the wrongful freezing of a brokerage account at Citigroup Smith Barney that belonged to Stein’s clients, Bruce and Ruth Clinesmtih. Read the rest of this entry »

Chief Disciplinary Counsel Virginia L. Ferrara was under oath and being deposed by Attorney Stuart L. Stein in a Federal lawsuit Stein had filed against the now defunct Legal Advertising Committee, Ferrara and others for enforcing the advertising rules against lawyers in an unconstitutional fashion. Ferrara was being her usual coy, flippant self. It was as if she had taken lessons from Attorney General Alberto Gonzales; she relied on I don’t know, I have no recollection, I don’t remember, and I don’t recall. Read the rest of this entry »

Disciplinary Board Chair Mike Paulowsky has finally released the Hearing Committee’s Recommendations for Discipline concerning Lawyer Stuart L. Stein in the Clinesmith matter. Paulowsky waited five weeks after receiving the Recommendations from the Hearing Committee to follow the simple instructions contained in Rules 17-313.E. and 17-314.A. of the Rules Governing Discipline concerning how to notify the parties and distribute the document. Mr. Paulowsky, however, didn’t follow those simple rules; he made up his own rules for how an appeal of this type is supposed to proceed. Read the rest of this entry »

Robert P. Tinnin, Jr., Esq., a Hearing Committee member and Hearing Chair for the New Mexico Disciplinary Board, is being accused of violating the Rules of Professional Conduct in that capacity by Albuquerque Attorney Stuart L. Stein. Tinnin has been serving as the Hearing Committee Chair of a three member Hearing Committee in Stein’s discipline cases for years. While Mr. Tinnin is immune from prosecution for damages for any misconduct in a civil court, he is not immune from charges of ethics violations. Read the rest of this entry »

Last week’s Apr. 29, 2007 post - “Governor Richardson Should Remove Norman S. Thayer, Esq. From Ethics Task Force” - included a copy of Norman Thayer’s letter of Nov. 8, 2005 to Disciplinary Counsel Joel Widman wherein he recommended that Widman pursue criminal charges of obtaining money under false pretenses against Albuquerque Attorney Stuart Stein.

Mr. Thayer had previously been enlisted by Widman to act as a reviewing officer on a discipline case Widman wanted to bring against Stein. But Thayer only reviewed partial, one-sided information supplied by Widman before jumping to the conclusion that Stein may have committed a crime. Read the rest of this entry »

Attorney Stuart L. Stein has written Governor Bill Richardson asking him to remove Norman S. Thayer, Esq., of the Albuquerque law firm Sutin, Thayer and Browne, from the newly revived Governor’s Task Force on Ethics Reform - a group designed to recommend changes for legislation concerning ethics in government and campaign finance. (See, Santa Fe New Mexican article of 4-21-2007.)

In his letter to Governor Richardson dated April 27, 2007, Stein asserts that Thayer’s true colors were displayed in a disciplinary matter currently pending in which Thayer made recommendations to move forward on the prosecution of Stein for ethics violations without reviewing both sides of the matter as required by the Rules Governing Discipline.

Stein claims Thayer’s intentional failure to adhere to the Rules he is required to follow within the lawyer discipline system, and his refusal to acknowledge his deliberate transgression, disqualifies him from serving in any position seeking to recommend ethical guidelines for the legislature or any other group. Read the rest of this entry »