Mr. Lopez, in his letter, asked Stein to mail documentation concerning the complaint to him by a time certain. But Stein felt a meeting in his office where Mr. Lopez could determine for himself what was needed from Stein’s voluminous files would be better. He agreed. The meeting took place in Stein’s office on Apr. 5, 2007 and lasted about three hours. As expected, Mr. Lopez requested a lot of copies from Stein’s files which were made on the spot and given to him.

In talking to Mr. Lopez at their April 5th meeting, Stein began to discuss MacKenzie’s participation in a discipline case filed against Stein back in 2002, which we will refer to as the Bogarosh discipline case. Mr. Lopez took interest in the new allegations and asked Stein to reduce his newly raised concerns about MacKenzie’s conduct to writing along with a reiteration of the initial complaint. (See, letter from Stein to Lopez of Apr. 16, 2007.)

MacKenzie Has Conflict of Interest

In the Bogarosh discipline case, MacKenzie represented three of Disciplinary Counsel Sally Scott-Mullins’ “expert” witnesses - Albuquerque lawyers Susan Tomita, Kenneth Leach and Randolph Hamblin. At the same time, MacKenzie and his firm, Popejoy & MacKenzie, assumed representation of Barbara Bogarosh, the complaining witness in the Bogarosh discipline case, in her father’s guardianship/conservatorship case - the case from which the ethics charges partially emanated against Stein. Popejoy & MacKenzie came into the guardianship/conservatorship case after Barbara Bogarosh fired Randy Hamblin, the attorney who brought the guardianship/conservatorship proceeding for her against her father, Peter Bogarosh. Wow! Can you spell “conflict of interest”?

At the time, in 2003, Peter Bogarosh and his late wife, Novella, had been Stein’s clients for estate planning purposes for many years.

MacKenzie Moves to Quash Subpoenas Duces Tecum;
Aggressively Asserts Attorney-Client Privilege

Stein wanted to take the depositions of MacKenzie’s three “expert” lawyer witnesses and to have them bring certain materials to their examinations. Stein issued subpoenas asking them each for, amongst other things, examples of 706 Estate Tax Returns they had prepared for clients. One of the counts in the Bogarosh discipline case concerned the reasonableness of Stein’s fees for the preparation of an A/B split and 706 Estate Tax Return that was filed with the IRS after Peter Bogarosh’s wife, Novella, died.

MacKenzie’s tactic was to move for a protective order claiming an attorney-client privilege for the A/B splits and 706’s in the files of Susan Tomita, Ken Leach and Randy Hamblin. Stein tried to negotiate with MacKenzie and was agreeable to a reduction of the number of 706’s to be produced with redaction of any personal, identifying information of the clients, but MacKenzie wouldn’t budge. He steadfastly maintained his position in numerous pleadings that these materials were absolutely protected and privileged.

The first Motion to Quash Subpoenas and for Protective Order filed by MacKenzie on behalf of Tomita, Leach and Hamblin states several times that Stein’s subpoenas “seek documents which are protected by virtue of movants relationship with hundreds of other clients.” Emphasis supplied.

Attorney Larry Kay, another of Disciplinary Counsel’s “expert” witnesses in the Bogarosh discipline case, played copycat and filed his own Motion for Protective Order also claiming attorney-client privilege for any A/B splits and 706’s that he may have prepared for his clients.

Protected Materials Not Identified as Required

MacKenzie never identified how many A/B splits or 706 Returns each of his clients had in their files. He never supplied a privilege log as required by case law to be served with any objections to discovery or subpoenas that require production of papers, records or other materials. He just complained about the undue burden of his clients going through a 1,000 files and the “tenuous probative value” of the 706 Returns and other requested items.

The Hearing Committee Chair, the irascible Robert Tinnin, sua sponte quashed Stein’s first set of subpoenas claiming that Stein, under the Rules, was not authorized to issue his own subpoenas and that he, Tinnin, was the only one who could sign a subpoena requiring one to appear for deposition. (See, Sua Sponte Order Quashing Subpoenas.) Stein reissued the subpoenas over Tinnin’s signature. MacKenzie filed a Second Motion to Quash Subpoenas and for Protective Order.

The Second Motion to Quash goes into greater detail on how the three “expert” lawyer witnesses would have to sift through a 1,000 files, contact their clients to inform them of what was happening, determine which documents are pertinent and redact the appropriate information. MacKenzie goes on to say that, “For a large estate plan, this exercise could involve the review of hundreds of pages per file.”

The Hearing Committee refused to require MacKenzie to disclose if the 706 Returns he was so aggressively protecting from discovery even existed - a demand Stein made in his response to the protective orders. (See, Stein’s Response to Second Motion to Quash Subpoenas and For Protective Order, Sec. C, pg. 4.)

Leach Now the Only Lawyer Expert

Just days before the depositions began, Scott-Mullins announced that the only expert witness out of the four lawyer witnesses she listed would be Ken Leach. Both Tomita and Hamblin, along with Kay, then became fact witnesses.

MacKenzie’s Clients Don’t Do 706 Returns!

Tomita and Hamblin testified on deposition that they don’t do 706 Estate Tax Returns. Kay testified that he used to do them years ago when he was a CPA before becoming an attorney.

During Leach’s deposition he testified that he, also, didn’t prepare and file 706 Estate Tax Returns: he only reviewed returns done by accountants for his clients and charged hourly for that work.

None of MacKenzie’s clients prepared and filed 706 Estate Tax Returns. Both of his motions to Quash and for Protective Orders were shams concerning the production of these materials. Why MacKenzie didn’t state directly that the subpoenaed 706 Estate Tax Returns could not be produced because they did not exist is a question that only Mr. Lopez can ask. And only Mr. Lopez can demand and get a detailed and comprehensive answer.

Estate planning lawyers across the country consider the 706 Estate Tax Return a legal document that only lawyers should prepare. The IRS also follows that course: all audits of 706 Returns are conducted by IRS attorneys, not accountants. Yet, in the State of New Mexico only a handful of lawyers, like Stein, do 706’s. Virtually all estate planning lawyers in New Mexico refer their clients’ needs for a 706 Estate Tax Return to accountants. The accountants then refer clients with Will and Trust needs back to the lawyers. That’s the way it works - I’ll scratch your back if you scratch mine!

MacKenzie’s Ethical Violation

The motions filed by MacKenzie for protective orders on 706 Estate Tax Returns that did not exist were in violation of Rule 16-301 of the Rules of Professional Conduct mandating that lawyers shall not raise frivolous issues in a proceeding. It is self-evident and conclusively frivolous to serve a Motion for Protective Order for materials that do not exist.

This leads to further questions for which there are currently no answers. Assuming that MacKenzie’s clients got copies of his Motion for Protective Order, why did none of them speak up to correct the “error” of filing for protection of items that did not exist? If they did not inform MacKenzie that his position was not well taken, did they each commit an ethical violation by their silence? If they did tell MacKenzie that they had no 706 Estate Tax Returns, MacKenzie’s silence in not informing the Hearing Committee and counsel of this fact only compounds his ethical violation.