NM Supreme Court Ignores Rules at Lawyer’s Disbarment Hearing; Disciplinary Counsel Makes Misrepresentations Without Fear of Rebuttal
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.
ORAL ARGUMENT - WIDMAN’S OPENING
Widman divided his time as follows: 10 minutes for opening and 10 minutes for rebuttal. In his opening he argued no fact which supported any breach of the Rules of Professional Responsibility by Stein. He argued Stein’s refusal to admit that he did anything wrong was a basis for disbarment.
Widman was unable to answer the question posed by Justice Daniels as to why the Hearing Panel of the Disciplinary Board increased the sanction from a six month suspension recommended by the Hearing Committee to a disbarment. Other than speculating that this web site - Bench and Bar Reform - could have been a factor since the Hearing Panel members had more time than the Hearing Committee to look at it and give it weight, he had no other explaination.
The issue neglected in Widman’s answer, which was implicit in the question, was why the Review Panel did not articulate its reasoning for increasing the finding of the recommended sanction to disbarment. The Supreme Court has previously held that they want Hearing Panels to explain “. . . in its report and recommendation . . . why it has decided to reject or supplement the findings of a hearing committee.” In the Matter of Robert Matthew Bristol, 2006-NMSC-041, paragraph 13, 140 N.M. 317, 321, 142 P.3d 905, 909. Widman was the disciplinary counsel on the Bristol case.
The Hearing Panel had a duty to inform the Supreme Court as to why their recommendation for discipline was increased to disbarment. Once again, the Supreme Court ignored their own rules and mandates.
As an aside, Justice Charles Daniels’ former law partner, Nancy Hollander, once relayed to Stein that when Daniels served on the Disciplinary Board, he never saw discipline increased by a Hearing Panel from what a Hearing Committee had recommended. And now he was settling for the mealy mouthed answer that Widman gave.
Then in closing his opening argument, Widman made reference to this very website - Bench and Bar Reform - by reading off headlines of certain postings that he had previously referred to and made part of the record at the separate hearing for aggravation and mitigation, after the case before the Hearing Committee was over and without notice to Stein. Widman also raised the subject of this website to the Hearing Panel.
Most important, no complaint about Bench and Bar Reform was made in any paper filed before the Hearing Committee to give Stein adequate Due Process notice that the exercise of his First Amendment rights would be used to take away his license to practice law and that his federally protected political opinions would be used against him. There was no allegation that anything contained in this blog is or was factually incorrect or went beyond core First Amendment legitimate expression of opinion on the legal and lawyer professional disciplinary systems. Nor, even if such allegations were made, was there any hearing granted for proofs of such allegations.
Political opinion is a core of First Amendment right. This blog has always reflected the opinion of its author and has consistently backed up those opinions with statutes, records and case law.
In New Mexico, it seems, a lawyer who speaks out addressing problems in the attorney disciplinary process is reason enough for the Supreme Court to aggravate that lawyer’s punishment in the very system he criticizes. The First Amendment is brushed aside as irrelevant. The New Mexico Supreme Court, to its shame, notes this blog as a reason for disbarment of Stein when it issued its opinion. See, In the Matter of Stuart L. Stein, 2008-NMSC-013, paragraph 71, 177 P.2d 513 at 529. (Important note: This opinion is replete with many outright and intentional misstatements of facts, half-truths and misrepresentations. Many of these will be the subject of future posts.)
STEIN’S RESPONSE ARGUMENT
Stein was then given his 20 minutes to respond. Stein told the Justices that he did nothing wrong. He told them that Judge Vanzi in the Clinesmith case refused to allow him to present the other side - the side of his clients - in the guardianship and conservatorship case. The Justices were told that Vanzi refused to allow Bruce Clinesmith’s psychiatrist to testify as to his medical determination that Bruce was competent when he signed new testamentary instruments prepared by Stein.
As to the disciplinary proceeding itself, Stein argued that the proceeding before the Hearing Committee was constitutionally infirm for lack of discovery and the failure of proof; the failure of the Specification of Charges to articulate any duty to perform or not perform any acts; to state what, if anything, Stein did that constituted dishonesty, fraud, deceit or misrepresentation and what the alleged conflict of interest was.
Stein also raised the issue of the agreement by Widman not to use collateral estoppel concerning the court orders entered by Judge Vanzi and Judge Svet, but these orders were used in violation of that agreement and Stein’s motion to strike them from the record was denied by the Hearing Committee after the hearing was over.
Stein finally raised the issue that he asked permission to file an interlocutory appeal from Judge Vanzi’s Order removing him from the case for a conflict of interest, but she denied the request. That ended the question on Stein’s removal as the Clinesmiths’ lawyer; the question could then only be heard by an appellate court on a full appeal when the case was over.
After making these points, Stein was cut off - his time was up.
WIDMAN’S REPLY ARGUMENT
Widman then got up for his rebuttal and showed his unprofessional and unethical approach once again.
(1) Raising Points Not Raised in Prior Argument
Instead of acknowledging that he agreed on the record that the Orders entered by Judge Vanzi were not to going to be used as collateral estoppel, Widman told the Justices that Stein could have appealed the orders that found he had a conflict of interest as a matter of right. Widman, by doing this, breached the first rule of appellate practice: one does not raise an issue not previously raised in oral argument or brought up in questions by a Justice hearing the case on rebuttal.
The question of an absolute right to an appeal was never raised in Widman’s opening or Stein’s response or in questioning from the Justices. At this point, there was no authority in New Mexico law giving a lawyer the right to appeal an order removing him or her as the attorney in a case for a conflict of interest. Widman’s raising of two Tenth Circuit cases on an attorney’s absolute right of appeal on this kind of order in his rebuttal was improper appellate practice.
But the Justices allowed this argument without comment and bit, hook, line and sinker, in their written opinion issued two months later on Stein’s disbarment.
When Widman raised these two cases at the Hearing Committee level, Stein pointed out that a federal case directed to federal appellate procedure had no impact on the New Mexico rules of Appellate Procedure. The Hearing Committee by their silence agreed with Stein. None of the three committee members questioned Stein on the point. It was never mentioned in their Findings of Fact, Conclusions of Law and Recommendations for Discipline. Stein was blind-sided by this last minute argument.
The Justices used their opinion disbarring Stein to declare a new right of an attorney to take such an appeal from a trial court order disqualifying him or her from representing a client because of a conflict of interest by approving the reasoning of a 10th Circuit case and created new law prospectively. Heretofore Stein - and every other New Mexico lawyer - never knew about this right to appeal. See, In the Matter of Stuart L. Stein, 2008-NMSC-013, paragraph 53, 177 P.3d 513 at 526, citing Weeks v. Indep. Sch. Dist., 230 F.3d 1201, 1207 (10th Cir. 2000)(”Counsel have standing to appeal orders that directly aggrieve them.”)
The Justices held that Stein should have known that he had a right of appeal from Vanzi’s order removing him as the attorney for Bruce for the claimed, but unproved, conflict of interest in 2005 even though the announcement of this right was first disclosed two and a half years later in his disbarment opinion issued in February of 2008.
Tenth Circuit cases on federal appellate procedural rules are not controlling, applicable or even persuasive in construing state appellate rules unless and until the reasoning is adopted by the highest court in the state. But now it has been adopted by the Supreme Court of New Mexico. Too late for Stein.
If there is any good from Stein’s convoluted disbarment opinion, it is this: Now when an out of control judge like Linda Vanzi tosses an attorney off a case for a conflict of interest, holds them in contempt or issues any other order that personally aggrieves them, there is an immediate right of appeal by the lawyer to the Court of Appeals where the lawyer can request a stay to avoid irreparable injury to their client’s right to the counsel of their choice and get the matter heard.
And, should the New Mexico courts in the future not recognize this new right of appeal, it will affirmatively show the intellectual dishonesty and personal animus of the New Mexico Supreme Court in Stein’s case.
(2) Widman’s Misrepresentation
Then comes Widman’s big misrepresentation: The Justices questioned Widman about (1) the capacity of Bruce Clinesmith to waive any conflict to allow Stein to represent him and his wife Ruth in the state and federal cases and (2) the capacity of Bruce to sign the testamentary instruments prepared by Stein. Widman avoids the questions and gives the court the impression that since Bruce was ultimately found incapacitated by Judge Vanzi after Stein was removed and was no longer representing Bruce or Ruth in the state case, he could not have been fully capable of the waiver or to sign testamentary instruments.
Widman failed in his duty to inform the Justices that Bruce’s competency was never an issue in the disciplinary case. Widman violated of Rules of Professional Conduct which requires candor to all courts and tribunals. N.M.R.A., Rule 16-303, Rules of Professional Conduct.
Widman said on the record before the Hearing Committee in the disciplinary case: “I have tried to make this clear since the get-go, and I have said — this is not the first time I’m making this statement, that Mr. Clinesmith’s competency is not an issue in this case.” Transcript of Nov. 17, 2006, pg. 156, line 18 to 22. He makes it clear to the Hearing Committee but not to the Justices of the Supreme Court.
Further, the law states that even the appointment of a guardian or conservator is not proof of incapacity. N.M.S.A. Sec. 45-5-310.E and Sec. 45-5-408.D. All New Mexicans are legally presumed fully capable until declared otherwise at a final hearing under the Guardianship and Conservatorship statutes. Widman had actual knowledge of the facts and law and purposely misled the Justices.
And because Stein was denied opening and closing argument, he had to stand mute which allowed Widman’s unethical misrepresentation of the record to go unchallenged.
CONCLUSION
It was clear at the oral argument that this was going to be a professional lynching by the New Mexico Supreme Court. The courtroom was filled with the Justices’ law clerks, and Widman’s wife, Kate Mulqueen, all wanting to be witnesses to the bloodletting of disbarment each knew was certain from the start.
Among these spectators were certainly the clerk or clerks who wrote the opinion, adopted and published per curiam by the court. As noted elsewhere in this blog, Stein was disbarred immediately from the practice of law in open court after the oral argument on December 19, 2007 and not allowed a requested 30 days to hand off his practice in a fashion to best help his clients. This point will be the subject of another future blog.
The Justices, by not following their own rules on oral argument, their acceptance of issues raised for the first time in rebuttal and then, in rebuttal, raising competency issues about Bruce by questions when it was specifically and directly not an issue to be determined by the Hearing Committee, made a mockery of any semblance of a fair hearing conducted in the most hallowed room where New Mexicans seek justice at its highest level.
If this is the typical handling of attorney disciplinary matters by disciplinary counsel, hearing committees, the Disciplinary Board and the Supreme Court, it is no wonder that the reputation of New Mexico lawyers as spineless and afraid to fight for their clients persists. They know and fear an unfair and unconstitutionally applied disciplinary system that could take away their right to practice law without adequate proofs or any semblance of fairness.
Shame on the New Mexico Supreme Court for their blatant disregard of the rules and their own mandates, and for playing politics with the rights of individuals and the Constitution!