Disciplinary Counsel Widman Shows Incredible Lack of Legal Knowledge - Again!
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?
The Concept of Pro Haec Vice
It’s very simple. There is a process in every state where a non-admitted lawyer can be admitted to practice law on a per case basis. It’s called being admitted “pro haec vice“, or being admitted just “for this matter”. Naturally, each state has their own rules on how that process is carried out, e.g.: making application, proof of good standing as a lawyer in another state, retaining local counsel and, normally, paying a fee.
Stein followed up with a letter to Widman on Feb. 6, 2006 indicating dates when he and his lawyer, Joe Dicks of San Diego, CA, would be available for deposition. But that wasn’t good enough for Widman.
Widman shot back a letter by fax the same day and inconceivably took the following position: “Joseph Dicks is not an attorney licensed to practice in New Mexico and, accordingly, will not be permitted to represent you in this matter. Since you have failed to comply with our letter of February 3, 2006, we have arranged to serve you with a subpoena to appear for deposition.”
Stein was shocked by Widman’s ignorance. So, he faxed a second letter to Widman on February 6 informing him that Joe Dicks had previously represented Stein in another matter before a Hearing Committee Review Board and at the New Mexico Supreme Court.
Dicks conducted himself professionally both times. His arguments at the Supreme Court were persuasive enough to effectuate a positive result for Stein. Maybe that was the real reason Widman didn’t want Stein to be represented by Dicks. Joe Dicks is a damn good lawyer! Stein asked Widman to reconsider.
The response from Widman was faxed the next day. He stubbornly maintained his position that an out of state lawyer could not possibly practice law in New Mexico.
Widman wrote, “We find it incredible that you insist on being represented in a proceeding in New Mexico by an attorney who is not admitted to practice here. In order to practice law in New Mexico a lawyer must be admitted to practice in New Mexico. Representing a client in the course of a deposition and a disciplinary proceeding constitutes the practice of law.
This is so fundamental, we are incredulous that you question it.” Widman’s February 7, 2006 Letter to Stein.
Fundamental! Incredulous! Really? The real fundamental question is how did someone so deficient in basic, elemental constitutional law and litigation practice become Disciplinary Counsel and why do his supervisors and the Disciplinary Board keep him on.
(See, also, Post of March 4, 2007, “Waffling Widman: Prosecutor Flip-Flops On Legal Theories After Case Is Over”.)
Supremes Agree With Stein
Ultimately, Stein filed a motion to quash based on the insufficiency of the subpoena and the attorney of choice issue before the Supreme Court of New Mexico. Application for Order to Quash Subpoena.
The Supreme Court agreed with Stein that he was allowed to retain the lawyer of his choice as long as they complied with the New Mexico pro haec vice provisions and filed the application with the appropriate fee. The Court also agreed that the subpoena issued was not in compliance with the Rules of Discipline. Widman had failed to state with enough specificity in the subpoena what the purpose of the deposition was.
Stein has been admitted to state and federal courts on a pro haec vice basis in criminal and civil cases in roughly two dozen jurisdictions over the years. How Widman can claim ignorance of this area of the law - especially when Disciplinary Counsel is charged with dealing with the unauthorized practice of law - is unbelievable.
CONCLUSION
The facts speak for themselves. Whatever Stein proposes, Disciplinary Counsel opposes. For instance, see Widman’s Response to Motion to Quash. The Response in paragraph 4 claims that “Stein had no intention of complying with a subpoena” in his February 7, 2006 letter. Not true. See, Stein February 7, 2006 Letter to Widman. Stein’s letter was not an expression of future non-compliance; it was an announced intention to challenge the subpoena, which is his right, and to affirm the ability to have the lawyers of his choice represent him. Widman misleads the Supreme Court.
Paragraph 5 of Widman’s Response makes the claim that “. . . the rules pertaining to the admission of out-of-state attorneys have no appplication to discovery proceedings where no lawsuit is pending.” No citation to authority is given. One must accept his ex cathedra statement because he said so? Hogwash.
No thought process is involved: Stein is always presumptively wrong. If Stein wanted to stipulate as to the day of the week for a particular date, Widman would require exhuming Pope Gregory to testify on the creation of the calendar before he would agree.
Widman’s actions in opposing California counsel and the request to quash the subpoena was not meritorious and, consequently, was a violation of Rule 16-301 of the Rules Governing Discipline for taking an utterly frivolous position.