Some Investigations of Bar Complaints Move at Snail’s-Pace; Bar Complaint Against Attorney Nell Graham Sale Revealed
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.
Three Bar Complaints Filed Over
Six Months Ago
Two days later, on Nov. 15, 2006, Stein filed two more Bar complaints. The first was a complaint against Attorney Gregory W. MacKenzie for his involvement in the wrongful freezing of a brokerage account at Citigroup Smith Barney that belonged to Stein’s clients, Bruce and Ruth Clinesmith. This complaint was supplemented to include other allegations of misconduct by MacKenzie and is the subject of our June 3, 2007 Post, “Bar Complaint Against Attorney Gregory W. MacKenzie Expanded”. (See, also, Stein’s letter to Special Counsel Martin Lopez, III, Esq. dated April 16, 2007, that supplemented the initial MacKenzie complaint.)
The last complaint was against Attorney Nell Graham Sale, of the Miller Stratvert firm, for freezing a brokerage account at Wachovia Securities owned by Mrs. Clinesmith on behalf of Ms. Sale’s client, the temporary conservator for Mr. Clinesmith. The Order under which Sale claimed to have acted was issued by Judge Linda Vanzi appointing Sale’s client as temporary conservator for Bruce Clinesmith. The court order lacked any specific authorization, as required by Statute, to marshal assets on Mr. Clinesmth’s behalf.
Under the Rules Governing Discipline, old Rule 17-304.E. required that complainants shall be advised every six months as to the status of investigations of ethical complaints and shall immediately be advised as to the disposition of the complaint. This was the Rule in place when the Widman, MacKenzie and Sale complaints were made. New Rule17-304.H. has the same requirements.
After the passing of the six month period when a report would have been due and hearing nothing from Disciplinary Counsel’s Office, Stein wrote a letter to Chief Disciplinary Counsel Virginia Ferrara on May 30, 2007 asking for the status of his three complaints and the names of any “special counsel or disciplinary counsel who are currently assigned on the investigation of these three attorneys.”
Ferrara’s response letter to Stein of June 5, 2007 is curt and contains no information at all except that after over six months, all three complaints are still “under investigation”. Ferrara fails to identify the names of any special or disciplinary counsel assigned to the complaints as requested by Stein.
It is known that Attorney Martin Lopez, III was assigned to the MacKenzie complaint because he contacted Stein and the two had a meeting. Mr. Lopez has taken his position as Special Counsel seriously and appears to be putting great effort into his investigation.
The complaint against Nell Graham Sale seems to have been “lost” in the Office of Disciplinary Counsel for the last six months. The June 5th letter from Ferrara is the first specific acknowledgment Stein has received indicating that the Office of Disciplinary Counsel even received his complaint against Sale.
Questions and Conclusions
Stuart Stein’s personal experience with discipline matters is that when he has been the target of a Bar complaint, the complaining witness has had numerous contacts with Disciplinary Counsel’s Office before the case even goes to hearing. In one case, the unstable daughter of one of Stein’s clients made a Bar complaint about Stein’s fees and, by the end of the case, was exchanging personal e-mails with Disciplinary Counsel Sally Scott-Mullins attaching pictures of her pet bunny rabbits.
Yet Stein has had to prod and beg for any information about the complaints he is required to make under the Rules of Professional Conduct against other lawyers. The complaints he made against Chief Disciplinary Counsel Virginia Ferrara (more on that will be forthcoming in future posts) and Deputy Disciplinary Counsel Joel Widman were both dismissed by different appointed Special Counsel who never contacted Stein to discuss the facts of the complaints.
In Stein’s own discipline cases he has seen rash investigations, hastily put together Specification of Charges and a race to the final hearing, except in one particular case. That was when Stein’s advertisements came under fire by the now defunct Legal Advertising Committee. The complaint by the LAC resulted in formal charges.
It took five years, three federal suits, an appeal to the Tenth Circuit, a secret Hearing Committee Order revealed almost three months after being issued because it was “sitting quietly” on Virginia Ferrara’s desk, a surreal hearing before the New Mexico Supreme Court based on an empty Court file and no moving party, and a hearing before the Chair of the Disciplinary Board to, ultimately, get a dismissal of the Specification of Charges in Stein’s favor. Why was this such a long and winding road? Because Stein had them dead to rights and they knew it, but they couldn’t admit it.
So, does the Office of Disciplinary Counsel and the Disciplinary Board treat Bar complaints differently depending on who makes them and who is investigated? The evidence is a resounding, most certain “yes”!