In re Montoya
the alleged criminal activity, the evidence to be seized, and the place to be searched is for the court to decide, not the affiant. A basic question any judge must answer when deciding whether to issue a search warrant is “why does the government want to search this place?” If the information is not contained in the affidavit, before ruling on a request for a warrant the judge may require the affiant to appear personally and may examine the affiant under oath, provided such additional evidence is reduced to writing, supported by oath or affirmation and served with the warrant.
{45} Therefore, I respectfully dissent.
Rodey, Dickason, Sloan, Akin & Robb, P.A., Charles J. Vigil, Brenda M. Saiz, Theresa W. Parrish, Albuquerque, NM, for Respondent.
OPINION
PER CURIAM.
{1} Almost three years ago, a state district judge initiated a disciplinary complaint against attorney Dennis Montoya alleging
BACKGROUND
{2} In 2010, counsel for the New Mexico Disciplinary Board charged Montoya with seventy-four violations of the
{3} We divide this Opinion into three parts: the state cases, the federal cases, and the discipline.
THE STATE CASES
{4} The first disciplinary action against Montoya derived from several state claims (the state cases) related to a tire failure that killed a New Mexico resident (Decedent). The state cases involved recovery of Decedent‘s life insurance proceeds, workers’ compensation benefits, and wrongful death proceeds. The woman with whom Decedent lived at the time of his death (Girlfriend) retained Montoya for legal representation in the state cases.
{5} As a preliminary matter, it is important to understand the relationships between Decedent, Girlfriend, and the two children. Decedent and Girlfriend lived together for a time in Utah. Though they never married, Decedent and Girlfriend held themselves out to be common-law spouses. Girlfriend had a daughter (Girlfriend‘s Daughter) from a previous relationship who Decedent never adopted. At some point, Decedent, Girlfriend, and Girlfriend‘s Daughter moved from Utah to reside in New Mexico, where Decedent and Girlfriend had a son (Son). When Decedent died, Son was approximately three years old.
{6} During the state cases, Montoya represented not only Girlfriend, but also Girlfriend‘s Daughter and Son. As we shall discuss, these parties’ legal interests were hopelessly conflicted. While it is not clear at exactly what point Montoya knew that Girlfriend was not Decedent‘s wife, it is clear that Montoya should have known before he recovered funds in any of the state cases.
Insurance Case
{7} Decedent died intestate and had a life insurance policy that did not list any beneficiaries. In order to convince the life insurance company to allocate proceeds to Girlfriend, Montoya filed an application for Informal Appointment of Personal Representative with the Eleventh Judicial District Court. In that application, he asserted that Decedent died intestate, that Girlfriend was Decedent‘s wife, and that Girlfriend‘s Daughter was Decedent‘s issue. Neither of the latter assertions were true. Based on Montoya‘s misrepresentations, the district court appointed Girlfriend as the personal representative of Decedent‘s estate and, without a hearing, issued an order. Portions of that order, prepared by Montoya, declared that Girlfriend was Decedent‘s wife, that Son and Girlfriend‘s Daughter
{8} Montoya‘s paralegal submitted the court order and an affidavit signed by Girlfriend, each representing to the life insurance company that Decedent and Girlfriend had a common-law marriage pursuant to Utah law. Montoya admits that these documents were submitted for the purpose of establishing Girlfriend‘s claim to the insurance proceeds. As a result, the life insurance proceeds, $73,806.97, were paid directly to Girlfriend, rather than to Decedent‘s estate.
{9} If the life insurance proceeds had been designated to Decedent‘s estate, rather than to Girlfriend in her individual capacity, the proceeds would have passed according to the New Mexico‘s intestate succession statute. See
{10} Rather than setting aside proceeds for Son through Decedent‘s estate, Girlfriend received the entire amount in her individual capacity. Girlfriend then paid $25,000 of that amount directly to Montoya for payment of costs of litigation of the state cases. Some unquantified and unaccounted for portion of the remaining $48,806.97 was used for Son‘s clothing, education, and basic needs. Girlfriend never accounted for any of the $48,806.97.
Workers’ Compensation Case
{11} Montoya filed a workers’ compensation claim for the “Estate of [Decedent],” which named Girlfriend as both Decedent‘s personal representative and wife and named Girlfriend‘s Daughter and Son as Decedent‘s children. The
{12} Montoya‘s representation in the workers’ compensation case resulted in a lump-sum workers’ compensation settlement of $55,000. From that amount, Montoya distributed $23,135.25 directly to Girlfriend in her individual capacity. No part of the settlement was set aside for Son or paid to Decedent‘s estate. Montoya apparently retained the remainder of the settlement, $31,864.75, for costs and fees.
Wrongful Death Cases
{13} Montoya also brought a lawsuit against the tire manufacturer and tire vendor that made and sold the tire that failed during the accident that caused Decedent‘s death. He brought the suit on behalf of the Wrongful Death Estate of the Decedent and on behalf of Girlfriend, Son, and Girlfriend‘s Daughter for individual loss-of-consortium claims. The
{14} Montoya settled the wrongful death claim against the tire vendor for a substantial sum. Montoya retained approximately $22,250 of the total amount under a 33.33% contingency agreement. The remainder,
{15} Subsequently, Montoya negotiated a settlement of the claim against the tire manufacturer for $550,000. He initially proposed allocating $450,000 of that amount to Girlfriend and $100,000 to Son. This settlement was the first for which Montoya sought court approval. From the total $550,000, Montoya initially planned to receive 40% as a contingency fee, but eventually lowered that amount. The settlement proposal was brought before District Judge Linda Vanzi, who appointed a guardian ad litem (GAL) to represent Son‘s interests. GAL began to investigate the proposed settlement and to question the previous settlements (life insurance, workers’ compensation, and the wrongful death claim against the tire vendor) from which no money had been specifically set aside for Son.
{16} Although Montoya had consistently represented Girlfriend as Decedent‘s wife in his wrongful death pleadings, he later represented to GAL that he was not relying on marital status for Girlfriend‘s recovery. Rather, he claimed that Girlfriend was entitled to the settlement amount solely due to a loss-of-consortium claim under Lozoya v. Sanchez, 2003-NMSC-009, 133 N.M. 579, 66 P.3d 948, abrogated by Heath v. La Mariana Apartments, 2008-NMSC-017, 143 N.M. 657, 180 P.3d 664. Lozoya stands for the proposition that persons who are unmarried, in addition to married persons, may have a loss-of-consortium claim under certain circumstances. It states that “if a couple were to satisfy the elements of a common law marriage, as it exists in other states, this would be a great indication that the couple would have a significant enough relationship to warrant a claim for loss of consortium.” Id. ¶ 24. Montoya did not attempt to plead facts to prove that Decedent and Girlfriend‘s relationship would “satisfy the elements of a common law marriage.” Id. Rather, he simply asserted that Girlfriend was Decedent‘s wife, a relationship for which we recognized recovery for loss of consortium before deciding Lozoya. See Romero v. Byers, 117 N.M. 422, 424, 872 P.2d 840, 842 (1994) (holding that New Mexico should recognize a claim for spousal loss of consortium).
{17} Eventually, GAL alerted Judge Vanzi to potential problems and ethical violations with regard to the proposed wrongful death settlement with the tire manufacturer. Judge Vanzi ordered an investigation which uncovered many of the ethical violations discussed herein related to the state cases. Based on what she learned, Judge Vanzi filed detailed allegations with the Disciplinary Board regarding Montoya‘s conduct. We are grateful to her for doing so. Those allegations, eventually joined with others filed with the Disciplinary Board, led to the consolidated conditional agreement and ultimately to this Opinion.
{18} The fact that Montoya egregiously violated numerous rules of professional conduct in the course of representing the state cases is obvious. We now review those rules in detail.
Duty of Candor
{19} Montoya repeatedly violated his duty of candor to the court. The integrity of the adjudicative process requires that a lawyer act truthfully and honestly before the court. Montoya violated
{21} Montoya could have moved to establish the marriage for up to a year after Decedent‘s death, id., but he neglected to take those steps. Without doing so, even Utah would not have recognized Girlfriend and Decedent as married. Id. If he had done so, Utah may or may not have recognized the relationship because the state requires evidence that Decedent had consented to the union. “[The statute on legalizing a common-law marriage] requires general reputation, cohabitation, and assumption of marital obligations as separate elements in addition to consent.” Whyte v. Blair, 885 P.2d 791, 795 (Utah 1994). The Utah Supreme Court has cautioned that
[c]are must be given to guard against fraudulent marriage claims, especially where a declaration of marriage would reap financial rewards for an alleged spouse. When a reward is available, human nature may choose to strengthen and augment, in retrospect, the consent to marry that was only tentative before the reward became available.
Id. (internal citations omitted). Regardless of the merits of such a theory, Montoya represented that Girlfriend and Decedent were lawfully married, without mention of the common-law theory, in all of his court documents.
{22} In addition to dishonesty to the Court, Montoya‘s lack of candor to others caused him to violate additional rules. He violated
{23} Moreover, if sufficient, a failure of candor to the court can prejudice the administration of justice in violation of
Conflicts of Interest
{24} A concurrent conflict of interest exists if there is a significant risk that the representation of one client will be directly adverse to another client or will be materially limited by the lawyer‘s responsibilities to another client.
{25} To illustrate, it was in Girlfriend‘s best interest that she be considered Decedent‘s wife. If Girlfriend were not the wife, she was limited to an individual claim for loss of consortium. Because Decedent and Girl-friend
{26} The concurrent conflict of interest was not just theoretical. It caused a significantly disparate and unjust outcome in this case. The combination of life insurance proceeds, workers’ compensation settlement, and the first wrongful death settlement against the tire seller totaled $226,290.80. None of that sum was specifically set aside for Son, and none of it was distributed through Decedent‘s estate. Then, Montoya proposed a particularly egregious distribution in the second wrongful death settlement, based on the false representation that Girlfriend was Decedent‘s wife. Even if that representation had been true, Girlfriend‘s wrongful death entitlement as a spouse would have been limited to one-half. See
{27} Montoya violated
Competence
{28} In addition to his failed duty of candor to the court and conflicts of interest, Montoya failed to provide competent representation. See
{29} Aside from conflicts-of-interest violations, Girlfriend, as Son‘s mother, may legally have been able to represent Son if that representation was for the purpose of distributing proceeds to him. See Chisholm v. Rueckhaus, 1997-NMCA-112, ¶ 5, 124 N.M. 255, 948 P.2d 707 (stating that a parent can be a party to a child‘s suit by representing the child‘s interests). Montoya had a reasonable duty of care, however, to ensure that Son‘s interests as a statutory beneficiary were protected—that Son received any proceeds obtained. See Leyba v. Whitley, 120 N.M. 768, 770, 907 P.2d 172, 174 (1995). Montoya did not fulfill this reasonable duty of care, nor is there any indication that Girlfriend was intended to be a legal representative for Son. Although it was stipulated that some portion of the proceeds, unidentified and unaccounted for, was used (presumably by Girlfriend) for Son‘s clothing, education, and basic needs, all settlement proceeds, before Judge Vanzi‘s intervention, were paid directly to Girlfriend, in her individual capac-ity,
{30} Even in light of a legal possibility of representation, the facts in this case suggest that Girlfriend should not have been trusted to represent Son. Before he recovered any settlement amounts, Montoya knew that Girlfriend was using illegal drugs and that she had been charged with felony possession of drugs, specifically methamphetamine. Drug possession and use may be relevant to a parent‘s ability to care for a child. See generally State ex rel. CYFD v. Amanda H., 2007-NMCA-029, ¶¶ 26-27, 141 N.M. 299, 154 P.3d 674. This Court finds it inexcusable that Montoya would distribute settlement proceeds—rightfully belonging to Son—to Girlfriend, unsupervised and unaccounted for, when Montoya was aware of her use of illegal drugs.
Staff Supervision
{31} In order to protect the public against unqualified persons rendering legal services, only those who have passed the bar may practice law. See
THE FEDERAL CASES
{32} The second and third disciplinary actions against Montoya arose out of six federal lawsuits (the federal cases). While it is rare for even one federal judge to single out and publically admonish an attorney, several federal judges found it necessary to reprimand Montoya. In the federal cases, like the state cases, Montoya failed to fulfill his duty of candor to the court and to adequately supervise his staff. In addition, he filed frivolous claims and ignored deadlines. Unlike the state cases, which were unified by their underlying facts, the federal cases are unified by patterns of behavior, arising from different factual scenarios. For that reason, we address Montoya‘s violations in the federal cases by the type of violation rather than by the case.
Candor to Court
{33} As we mentioned in our discussion of the state cases, the integrity of the adjudicative process requires that a lawyer act truthfully and honestly before the court. In observation of this duty, a lawyer shall not knowingly make false statements of fact or law. See
{34} In another case, Montoya filed a complaint under the
{35}
{36} If sufficient, a failure of candor to the court can prejudice the administration of justice in violation of
{37} In the same ADEA case, Montoya failed to meet his duty of candor to the court in yet another way, when he altered deposition testimony to favor his client. The client was a postal worker who had lost an “Arrow Key” while delivering mail and did not report its loss. A supervisor had testified regarding the importance of the key, a type of master key for mailboxes in Albuquerque. The supervisor specifically referenced the loss of the Arrow Key as a reason for termination. While the supervisor‘s original testimony supported the contention that the key opened all mailboxes in Albuquerque, Montoya filed a motion with the supervisor‘s testimony redacted to read that the key only opened mailboxes in specific areas of Albuquerque. Judge Herrera chastised Montoya for this behavior: “[Montoya‘s] use of an altered quotation that changes the substance of [the] statement as a basis for challenging a material fact is disturbingly misleading at best.”
{38} In yet another case, Montoya failed to meet his duty of candor to the court by violating
{39} We have reminded attorneys before that “[p]ersonal bias cannot be inferred from an adverse ruling or the enforcement of the rules of criminal procedure.” State v. Hernandez, 115 N.M. 6, 20, 846 P.2d 312, 326 (1993). Montoya did not explain why Judge Johnson‘s prior adverse rulings and criticisms were not justified. Further, Judge Johnson just happened to be one of seven New Mexico federal judges who had signed the order excluding Montoya from the CJA panel.
Frivolous Litigation
{40} Montoya had a duty to use legal process to effectively advocate for his clients without abusing that process. Included in this obligation is a duty not to bring or defend legally or factually frivolous proceedings.
{41} To begin, in Montoya‘s groundless age discrimination claim, even when the dispositive fact that his client was too young was plainly put before Montoya, he ignored it and continued litigating until he reached both the inevitable result and a written reprimand from a federal judge. If the lawsuit was not frivolous when it was filed, it certainly became frivolous when Montoya was alerted to the age discrepancy and failed to take action to dismiss the lawsuit.
{42} In another case, Montoya filed two complaints, one of which was frivolous because its legal basis was precluded by the
{43} Then, despite the law on mixed-case complaints, Montoya opposed a summary judgment motion on the basis that the ongoing EEOC complaint justified continuing the MSPB case. That motion in opposition was frivolous because it had no legal basis. The federal court granted summary judgment based on Montoya‘s untimeliness in the MSPB case, calling the EEOC claim a legal “nullity.”
{44} Yet another federal claim made by Montoya was frivolous because it lacked proper defendants and supporting evidence. Montoya listed eight “unidentified” defendants but failed to name or serve them, despite ample opportunity to do so. The one defendant Montoya did name was a sheriff‘s department. The sheriff‘s department, however, was not a proper defendant because a prior ruling had held that governmental subunits were not proper defendants. Because Montoya also failed to put forth any evidence in support of some of the claims he made, the claims were dismissed.
{45} In a case that highlights Montoya‘s repeated frivolous filings, Montoya represented a civil defendant in a lawsuit filed in Arizona state court. Montoya improperly removed the case from the Arizona state court to the federal district court for the District of New Mexico. Instead of attempting to improperly remove the action across state lines, Montoya could have removed the case to Arizona federal court, see
{46} Because neither filing had any legal merit, Montoya‘s removal and forum non conveniens claims were both frivolous, in violation of
Untimeliness
{47} Montoya chronically failed to meet court deadlines, thereby impeding the administration of justice. A client is entitled to expect that an attorney will take reasonably prompt action. In In re Carrasco, 106 N.M. 294, 295, 742 P.2d 506, 507 (1987). Dilatory practices, such as a consistent failure to expedite litigation, discredit the administration of justice. See
{48} In at least four federal cases, Montoya failed to file essential pleadings on behalf of his clients. The fact patterns are strikingly similar in all four cases, illustrating a disturbing trend of representation without diligence or promptness. Montoya‘s repeated failure to file, or to timely file, pleadings represents a failure to act with reasonable diligence and promptness in representing his clients in violation of
{49} Failing to file and filing late seemed to have become a matter of course for Montoya. In one case, Montoya had a thirty-day window for initiating review of his client‘s termination by the U.S. Department of Agriculture. Twenty-nine days after the deadline had passed, Montoya filed the complaint. In another instance, Montoya failed to timely respond to a motion for summary judgment. Summary judgment was granted against that client, in part due to Montoya‘s failure to timely respond. In yet another case, Montoya failed to put forth evidence in support of his allegations, which provoked the court to accept an opposing party‘s facts, undisputed, and to dismiss those claims.
{50} Montoya‘s failure to act in a timely manner repeatedly prejudiced the administration of justice. For example, when federal Judge Johnson awarded attorney‘s fees against Montoya, the court allowed Montoya ten days to object. Three months later, Montoya finally objected. In another federal case, an opposing counsel sought attorney‘s fees from Montoya‘s client. Montoya initially obtained an agreement from opposing counsel for an extension to respond, but then failed to file that extension with the court. He then obtained a second continuance with the consent of opposing counsel. When Montoya requested a third continuance, opposing counsel did not consent. When Montoya‘s opposition to the motion for attorney‘s fees was finally filed, despite the numerous extensions, it was late and without leave from the court.
{51} In the same federal case, Montoya failed to timely respond to opposing counsel‘s motion for summary judgment. Instead, without leave of the court, he filed an untimely motion for an extension to respond. Then, Montoya filed another untimely response, again without leave of the court, opposing counsel‘s motion for summary judgment. Montoya also filed an untimely appendix of exhibits to his already untimely response. These repeated delays and requests for continuances represent Montoya‘s failure to make reasonable efforts to expedite litigation, consistent with the interests of a client, in violation of
{52} Montoya‘s untimeliness and lack of diligence provoked U.S. Chief Magistrate Lorenzo F. Garcia to recommend sanctions against Montoya in response to the “needlessly prolonged and increased ... costs of the litigation.” U.S. District Judge James A. Parker adopted Judge Garcia‘s recommendation, finding that Montoya “brought federal discrimination claims that had no basis, engaged in dilatory tactics, and continued to assert meritless claims long after it became clear that the claims had no basis.” Montoya‘s untimeliness in another federal case caused U.S. District Judge Bruce D. Black to hold Montoya‘s client responsible for Montoya‘s “errors that fall short of due diligence.”
Supervision of Staff
{53} As with the state cases, in which Montoya failed to supervise his paralegal, he also failed to supervise his office staff, in violation of
{54} Blaming his staff for his own failure to meet court deadlines is an example of Montoya‘s alarming pattern of shirking his own responsibilities. This pattern is particularly disconcerting in terms of whether Montoya can ever be trusted to practice law in the future.
DISCIPLINE
{55} As mentioned at the opening of this Opinion, disciplinary counsel and Montoya came to a conditional agreement regarding discipline after consolidating the state and federal cases. This agreement formed after Montoya conceded the various facts and violations described herein and after he waived the right to a hearing before a hearing committee and the Disciplinary Board.
{56} Upon initial review, this Court could not agree on several of the terms in the initial consolidated agreement signed by Montoya and disciplinary counsel; the severity and number of Montoya‘s violations warranted a harsher penalty. The initial consolidated agreement provided for a one-year suspension—six months for the state cases and six months for the federal cases. It also provided for an automatic reinstatement of Montoya‘s license. Following reinstatement, the agreement provided for a one-year probationary period. Because this Court must ensure that our expectations for Montoya‘s period of suspension are fulfilled before allowing him to practice again, we could not agree to an automatic reinstatement of his license. In addition, we insisted that the probationary period must be long enough so that, if Montoya does resume the practice of law, he does so responsibly and in accordance with the
{57} The agreement was amended to address our concerns. It now provides that if Montoya desires to reinstate his license after his one-year suspension, he must petition this Court for reinstatement as provided under
{58} During Montoya‘s suspension, he may not provide any legal services, including paralegal services, in connection with cases in which any of his present or former clients are or were involved. He cannot work in, out of, or for the same office where his former clients’ cases are handled. If he does provide paralegal services, he must do so under the direct supervision of a lawyer approved by this Court who is not representing any of Montoya‘s former clients. Such an attorney must notify the Office of Disciplinary Counsel that the attorney is retaining Montoya and that the attorney will act as a supervisor.
{59} If Montoya is reinstated after a year, he will be on supervised probation, under the supervision of a lawyer approved by this Court. This Court will approve a supervising attorney and Montoya will be obligated to compensate the supervising attorney for time spent providing supervision. Montoya and the supervising attorney will be required to meet no less than once per month. Montoya will be required to accept instruction and direction from his supervisor, including directives related to the handling of trust accounts, maintenance of records, files and calendars, management methods, and caseload. Montoya will have to limit his caseload as determined prudent by his supervisor. The supervisor will submit quarterly reports to disciplinary counsel and thirty days before the end of the probationary period will report
{60} The
{61} In regard to mental state, some of Montoya‘s infractions were at least knowing, while for others we have no evidence that they were more than negligent. In the state cases, disciplinary counsel has represented that there is no evidence that Montoya‘s actions were intended to defraud either his clients or GAL. Some of Montoya‘s violations, such as candor to the court, must have been knowing by their very nature.
{62} In terms of injury, Montoya caused injury or potential injury to his clients, to the legal system, and to the profession. In the state cases, Montoya‘s actions primarily caused financial injury to Son and general injury to the legal system. There is some evidence of restitution by Montoya to Son, the financially injured party in the state cases. A legal malpractice lawsuit on behalf of Son resulted in a confidential financial settlement, which GAL believes is in an amount that would make Son whole. Thus, the remaining injury in the state cases was to the administration of justice, in that Montoya lied to the courts, wasted the court‘s time, made a mockery of the legal system, and required GAL to investigate his conduct. In the federal cases, Montoya primarily caused injury to the administration of justice by making late filings, frivolous filings, and misrepresentations to the court. He also potentially injured clients. Although it is not clear if any of the clients in the federal cases had meritorious claims, at a minimum, their injuries were the time and any resources lost by hiring Montoya.
{63} Absent aggravating or mitigating circumstances, the
{64} Reprimand is appropriate if the lawyer is negligent in determining conflicts of interest and causes injury to a client.
{65} Disbarment is also appropriate when an attorney knowingly makes false statements to a court with the intent to deceive and causes a significant, or potentially significant, injury to a party or adverse effect on the legal proceeding.
{66} This case presents several mitigating and aggravating factors. Most important, there was no evidence that dishonest or self-ish motivations inspired Montoya‘s actions. See
{67} It is important to this Court that we apply discipline in a fair and consistent manner. Disciplinary counsel cited In re Cooley, No. 30,345 (May 18, 2007) (unpublished) as an example of a recent case in which this Court responded to similar infractions with discipline proportional to the discipline agreed upon in this case. Cooley admitted to a number of varied violations of the
{68} A settlement agreement with Cooley provided for a two-and-a-half-year suspension, with one year of actual suspension and the remainder deferred in favor of probation. Cooley was required to abstain from alcohol and controlled substances during his probation and to undergo random alcohol and drug testing. Upon reinstatement, which would occur automatically if no conditions during suspension were violated, the agreement provided that Cooley would undergo an 18-month supervision period, during which he would continue random drug and alcohol testing and a monitoring agreement with the Lawyers Assistance Committee of the New Mexico State Bar.
{69} Like Montoya, Cooley had numerous and varied violations of the
CONCLUSION
{70} For the foregoing reasons, we accept the consolidated agreement of disciplinary action against Montoya, as amended.
{71} IT IS SO ORDERED.