Chief Disciplinary Counsel Virginia Ferrara Denies Conversation With Reviewing Officer Norman Thayer; Thayer Tells Different Story
Chief Disciplinary Counsel Virginia L. Ferrara was under oath and being deposed by Attorney Stuart L. Stein in a Federal lawsuit Stein had filed against the now defunct Legal Advertising Committee, Ferrara and others for enforcing the advertising rules against lawyers in an unconstitutional fashion. Ferrara was being her usual coy, flippant self. It was as if she had taken lessons from Attorney General Alberto Gonzales; she relied on I don’t know, I have no recollection, I don’t remember, and I don’t recall.
Order of Hearing Committee Hidden by Ferrara for 10 Weeks
Part of Stein’s Federal suit concerned Ferrara’s actions in holding onto and not circulating a Hearing Committee’s Order for 10 weeks after it was “mistakenly” sent to Ferrara by Hearing Committee Chair Norman S. Thayer, Esq. instead of the Disciplinary Board Chair as required by the Rules. Thayer’s Committee had been asked to determine Stein’s request for declaratory relief to decide whether or not Stein’s advertisements were up to snuff and was he vested with advertising copy previously approved.
But the Order issued by Thayer’s Committee was adverse to the Legal Advertising Committee and the Disciplinary Board. Ferrara knew that when Stein got a copy of the Order, he would bring it to the attention of the Tenth Circuit Court of Appeals where an appeal waw pending in another case Stein had filed against the Disciplinary Board on attorney advertising issues.
The Tenth Circuit appeal was based on the Disciplinary Board’s position that Stein could get the declaratory relief he was seeking on legal advertising questions from a Disciplinary Board Hearing Committee rather than in Federal court - the Younger v. Harris abstention doctrine. The Order issued by the Thayer Hearing Committee ruled that they, in fact, did not have the power under the Rules to issue declaratory relief. This is just as Stein had claimed all along at the district court level. Naturally, if the Tenth Circuit got a copy of the Order, Stein would win a reversal.
Thayer Calls Stein To Propose Settlement
But the real question for this Post concerns what conversations, if any, transpired between Norman Thayer and Virginia Ferrara concerning Stein’s advertising case.
Before the Thayer Hearing Committee issued its Order on the declaratory relief issue, Thayer made a telephone call to Stein to see if the matter could be settled in light of the Supreme Court of New Mexico having just recently eliminated the Legal Advertising Committee and changed the lawyer advertising rules. Thayer suggested to Stein that there should be a meeting between Virginia Ferrara, Michael Hoses, then Chairman of the Disciplinary Board, and Stein to talk settlement. Thayer volunteered in his telephone call to Stein that he also spoke to Ferrara about a settlement.
Ferrara Denies Thayer Conversation
When Ferrara was asked at her deposition if she had any conversations with Chairman Norman S. Thayer about matters that were before his Committee, she replied with certainty, “I had no conversations with Mr. Thayer about that.”
Stein pressed a little harder and Ferrara offered the following: “He is one of our most experienced hearing officers. Some hearing officers we have really a hard time with, because they call up and say, ‘What do I do about this?’ And it’s like we can’t talk to you, but Mr. Thayer has been on the hearing committee, he has been chairman of the board, so he’s pretty cool. He knows not to do that.”
Stein then told Ferrara about his phone call from Thayer and inquired as to whether Thayer had called her. Ferrara suddenly had a memory lapse and complained that it had been so long ago she just didn’t remember. (See, Ferrara depo. 5-24-06, pgs. 48-49.)
Thayer Admits Phone Calls
Thayer, in his sworn testimony on December 18, 2006 in the Clinesmith matter discipline case concerning Stein, was positive he spoke to Stein and Ferrara. Thayer didn’t hesitate before declaring, “I’m sure I spoke with Virginia.” It didn’t seem to cross Thayer’s mind that there might be something inappropriate about making such contact with the Office of Disciplinary Counsel or with Stein for that matter. In fact, he gave the impression that this is the way things normally work with the lawyer discipline system. (See, Clinesmith discipline matter hrg. trans., 12-18-06, Vol. 7, pgs. 33-34.)
Suggested Changes
Attorneys should always tell the truth. Truth is the goal of the judicial system. Without truth the entire system fails. The first line of defense in the system is the lawyers, as officers of the court, who are supposed to seek the truth, be truthful themselves and only submit evidence to a court or administrative panel they know is true.
Under oath, Virginia Ferrara denied any conversation with Thayer. Under oath, Norman Thayer confirmed his conversation with Ferrara. Someone is not telling the truth.
When Ferrara was an Assistant District Attorney in the Second Judicial District, she was found to have withheld Brady Materials in a murder case that kept a defendant in prison for 18 years until his release. (See, Post of November 5, 2006, “Virginia Ferrara Withholds Evidence, Man Wrongfully Spends 18 Years in Prison”)
Virginia Ferrara also says that she signs off, literally, on a sheet of paper before a Specification of Charges is filed against a lawyer. Yet Deputy Disciplinary Counsel Joel L. Widman says Ferrara does no such thing. (See, Post of October 15, 2006, “Who’s Lying: Virginia Ferrara or Joel Widman?”)
It’s time for Virginia Ferrara to resign. Ms. Ferrara’s deposition in Stein’s Federal case was limited by the Judge to 2 hours. Yet her short examination under oath has produced questions about her truthfulness as outlined in this and previous posts. This is not a person who exemplifies the qualities required of a Chief Disciplinary Counsel - the person appointed to oversee the enforcement of the ethics rules against others.
The Disciplinary Board should immediately institute a national search for a new and untarnished Chief Disciplinary Counsel from outside New Mexico. Clearly, some attorney ethical enforcement experience is required. The Disciplinary Board should not look to any current or former New Mexico Disciplinary Counsel who has worked with Ms. Ferrara as a viable candidate for the position. Having been trained under Ms. Ferrara’s flawed leadership, they would also be tainted. A clean break is required.