Special Assistant Bar Counsel Wimps-Out, Dismisses Bar Complaint Against Lawyer Greg MacKenzie
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”.)
MacKenzie Ethical Complaint Dismissed
MacKenzie was let off the hook by Special Assistant Bar Counsel Martin Lopez, III, in a letter dated July 17, 2007. The letter dismisses out of hand the actions of MacKenzie in the Clinesmith matter without revealing any content of the “investigation” performed.
In the Clinesmith matter, one of Stein’s claims, based on the sworn testimony of the attorney for Citigroup, was that MacKenzie acted unethically when he contacted a stock broker at Citigroup Smith Barney in Florida concerning the joint account of Mr. and Mrs. Clinesmith, Stein’s clients at the time. And that MacKenzie had caused the account to be wrongfully frozen.
The other allegation in the Clinesmith matter, was that MacKenzie had a conflict of interest. MacKenzie represented the daughter of Bruce Clinesmith, Cathe Temmerman, in bringing a guardianship and conservatorship against her father, but was secretly being paid by Moody Bible Institute of Chicago from the Clinesmiths’ Trusts it controlled.
MacKenzie joined a motion made by Bruce Clinesmith’s temporary guardian, Decades LLC, to set aside a restatement of two revocable trusts made by Bruce and Ruth Clinesmith that would have increased his client’s testamentary bequest from $100,000.00 to $250,000.00. However, if MacKenzie opposed the setting aside of the restatements, it would be against the interests of Moody Bible, whose bequests were eliminated in the restatements.
Another allegation of Stein’s, over which Lopez voiced his greatest concern, was completely ignored by Lopez in his letter. At the April 5, 2007 meeting between Stein and Lopez, MacKenzie’s participation in the Bogarosh discipline case against Stein was brought up for the first time. Lopez was so upset about MacKenzie’s actions in Bogarosh that he asked Stein to amend his complaint in writing to include the Bogarosh case. Hence, the letter from Stein to Lopez on April 16, 2007 referenced above.
In the Bogarosh discipline case, MacKenzie represented three of Disciplinary Counsels’ “expert” lawyer witnesses against Stein. When Stein subpoenaed the three lawyers, he asked for samples of 706 estate tax returns they have prepared, relevant documents to the case. MacKenzie filed Motions for Protective Orders with the Hearing Committee sitting on the case, twice, for all three lawyers so they would not have to produce those returns. It was later learned that the 706 returns Stein requested didn’t even exist. None of the three “experts” prepared 706 estate tax returns.
Since Mr. Lopez has completed his investigation, one must assume that he also investigated the complaint concerning the bogus portions of MacKenzie’s Motion for Protective Order for materials that did not exist. Lopez is completely silent on the point while closing the investigation.
MacKenzie has gotten off the hook with blatant violations of Rules 16-301, 16-302 and 16-404 because he is quick to jump to the tune Disciplinary Counsel plays. How fortunate for him. How unfortunate for New Mexico.
It seems, at this point, not to be an ethical violation to file a Motion for Protective Order for documents that don’t exist before a Hearing Committee trying a New Mexico lawyer on a Specification of Charges. This was done right under the noses of two Disciplinary Counsel - Sally Scott-Mullins and Sarah Karni. One has to wonder how Disciplinary Counsel would look at similar conduct before a District Court, be it a civil or criminal case. You can bet any lawyer foolish enough to try this in court would either be held in contempt by the judge or face ethical charges by the Office of Disciplinary Counsel if it brought to their attention.
Mr. Lopez then erroneously instructs Stein to keep his investigation and findings confidential by writing:
Finally, as you know, the contents of this investigation and findings are confidential pursuant of Rule 17-304 of the Rules Governing Discipline. Therefore, the dissemination of any information relating to this investigation without prior approval of Disciplinary Counsel or Mr. MacKenzie is prohibited.
Lopez should not make assumptions about what Stein knows. Quite the opposite is true. The confidentiality provisions of New Rule 17-304 are only binding on Disciplinary Counsel, not on complainants. That is the holding of the United States Court of Appeals for the Tenth Circuit. That is the position taken in an Affidavit of Disciplinary Counsel Joel Widman in the Tenth Circuit case brought against him by a doctor who wanted to talk about an ethical complaint he made against his lawyer. See, Guttman v. Widman, 188 Fed.Appx. 691, 2006 WL 1755951 (10th Cir. 2006), headnotes [4] and [5] and FN 3.
Stein will surely be firing off a letter to the Chair of the Disciplinary Board, Mike Paulowsky, seeking a review of Lopez’ determinations. Don’t hold your breath. Paulowsky is still sitting on the dismissal of a Bar complaint that Stein filed against Disciplinary Counsel Joel L. Widman since March 17, 2007. (See, Post of March 18, 2007, “Special Counsel White-Washes Bar Complaint Against Disciplinary Counsel Widman”.)