292 P.3d 466
N.M.2012Background
- BNSF sued Mercer in state court over an easement-based water diversion; Mercer counterclaimed for tort and inverse condemnation and joined Gandy Dancer as a defendant.
- Gandy Dancer’s counsel Riley Law Firm sought to remove to federal court; Mercer hired Wagner Ford Law Firm (Wagner Ford) to remand the case, with Ford actively involved in strategy, discovery, and hearings.
- Mercer added LRPA Law Firm later to handle water-law issues; Wagner Ford ceased representation in late 2010; Ford remained involved as Mercer’s confidant and strategist.
- In mid-2012, Ford joined the Riley firm as an associate; LRPA warned of conflict and Mercer objected to Riley’s continued representation of Gandy Dancer.
- Riley filed a Rule 16-110(C) screening plan arguing Ford be screened and Mercer consent would suffice; Mercer contested, asserting Ford’s prior substantial role created an imputed conflict.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Rule 16-110(C) requires disqualification when a newly associated attorney had a substantial role. | Mercer: Ford’s substantial prior role created a firm-wide conflict. | Gandy Dancer: Screening could cure the conflict and allow continued representation. | Disqualification required; screening cannot cure substantial role. |
| Whether Ford’s confidential information was material to the Mercer-Gandy Dancer matter. | Mercer: Ford had privileged information material to the case. | Gandy Dancer: any information was peripheral and not material. | Ford possessed material confidential information. |
| Whether the district court erred by balancing equities instead of applying the mandatory rule. | Mercer: court should enforce Rule 16-110(C) without balancing. | Gandy Dancer: equity allowed limited relief. | Equitable balancing cannot override mandatory disqualification. |
| What is the proper remedy when Rule 16-110(C) applies? | Mercer: disqualify Riley firm to protect confidences. | Gandy Dancer: disciplinary options or screening suffice. | Disqualification of the firm is required; screening is inadequate. |
Key Cases Cited
- United Nuclear Corp. v. General Atomic Co., 96 N.M. 155, 629 P.2d 231 (N.M. 1980) (equitable considerations cannot override mandatory disqualification in imputation rules)
- Chappell v. Cosgrove, 1996-NMSC-020, 121 N.M. 636, 916 P.2d 836 (N.M. 1996) (rules regarding witnesses and disqualification guidance)
- Mascarenas v. Jaramillo, 111 N.M. 410, 806 P.2d 59 (N.M. 1991) (duty to interpret findings to support judgment on disqualification)
- In re Treinen, 2006-NMSC-013, 139 N.M. 318, 131 P.3d 1282 (N.M. 2006) (court's authority to regulate professional conduct; superintending control)
- State v. Almanza, 1996-NMCA-013, 121 N.M. 300, 910 P.2d 934 (N.M. 1996) (undivided loyalty; continuing duty of confidentiality)
- Lujan v. Pendaries Props., Inc., 96 N.M. 771, 635 P.2d 580 (N.M. 1981) (scope of matter and transactional approach to conflicts)