A panel of three federal judges will review disciplinary action taken against Albuquerque attorney Victor Marshall, who is accused of defaming retired state Court of Appeals Judge James Wechsler.
The state Supreme Court suspended Marshall’s law license indefinitely in January after finding he violated the judicial Code of Conduct by filing a frivolous charge, defaming a judge and engaging in conduct detrimental to the administration of justice.
The sanction is related to a motion Marshall filed in a long-running water rights case, which awarded more than 600,000 acre-feet of water to the Navajo Nation. Marshall contended a settlement in the case should be set aside because Wechsler failed to disclose he had worked for the Navajo Nation more than 40 years before approving the 2013 deal.
Much of the discussion during oral arguments on the disciplinary action centered on language Marshall used in his pleading.
“Our concern is not so much he made a claim that Wechsler had a conflict,” Supreme Court Justice Julie Vargas said at the time, “but the way that he made it.”
Vargas said Marshall implied Wechsler intentionally concealed his relationship with the Navajo Nation, ignored the law and “fixed” the case in favor of his former clients.
Wechsler had worked not for the Navajo Nation itself but a nonprofit legal aid organization known as DNA in the 1970s, according to information provided by the Administrative Office of the Courts.
Marshall argued in a motion filed in U.S. District Court late last month the sanction should be set aside, at least temporarily, to allow him to continue representing some of the same plaintiffs in a separate but related water case pending in federal court.
“Suspending Mr. Marshall from this case would cause grave injustice to his clients because they have relied on him for more than 15 years to build expertise about the federal water laws cited in the complaint,” according to the motion.
Marshall’s motion says his clients in the federal case can’t find a new attorney in time to address a pending dismissal motion, in part because many water lawyers in the state have conflicts of interest and because the clients couldn’t afford to pay the rates charged by other experienced water attorneys.
Marshall’s request for relief is based on a rule that puts the burden on him to prove his due process rights were violated during the disciplinary process or the misconduct warrants a less-severe punishment.
Marshall argues his right to due process was violated because the disciplinary panel refused to allow him to present evidence acquired after filing the motion, contending it would have proved his allegations regarding Wechsler’s potential conflict of interest were “substantially true.”
According to his motion, keeping him from providing counsel to his clients in the federal case would be an injustice — not only for them but for all water users in New Mexico and lawyers who are obligated to make arguments on behalf of their clients.
“The New Mexico disciplinary process has taken away a lawyer’s license for raising legitimate questions about the recusal of a judge,” he wrote. “These sanctions send an intimidating message to all attorneys who hold a New Mexico law license: DO NOT EVER FILE A MOTION TO RECUSE A JUDGE, BECAUSE YOU MIGHT LOSE YOUR LICENSE.”
As to the severity of the sanction, Marshall pointed to evidence in the record that an assistant counsel for the disciplinary panel originally recommended he receive a public reprimand, but the panel later elected to impose the harsher penalty, citing his lack of remorse.
“This demand for “remorse” was an attempt to coerce a confession from [him], and to force him to abandon the rights of his clients,” wrote Marshall, who has represented The New Mexican and practiced in the state for more than 45 years without prior sanction.
“I hate to see these kind of cases and a situation get this far along because normally it means there was a failure of communication,” said Gary Mitchell an attorney who serves on the Criminal Defense Lawyers Association’s strike team. The group represents attorneys facing contempt of court or other sanctions.
Mitchell said he wasn’t familiar with the facts of Marshall’s case but said the rights of the media and lawyers to be critical of government are essential to upholding the constitution.
“If the lawyers aren’t able to criticize the government through the cases they bring, that pretty well wipes out the First Amendment,” he said. “If we start getting disciplined for being critical of the government, that becomes a real problem.”
Mitchell said he could not remember U.S. District Court involvement in a state disciplinary action.
“It’s sort of rare,” he said.
William P. Johnson — Chief U.S. District Judge of the District of New Mexico — has appointed himself, Judge Kea W. Riggs and U.S. Magistrate John F. Robbenhaar to review the disciplinary proceeding against Marshall.
Johnson issued an order April 1 giving Marshall 30 days to file written material he wishes the panel to review.
Marshall may have a difficult time presenting a complete record within that period.
State Chief Justice Michael Vigil announced the sanctions against Marshall following oral arguments Jan. 12 and issued a brief order memorializing the court’s decision the following day. But the court has yet to publish a formal opinion in the case.
Meanwhile, the state’s Chief Disciplinary Counsel, Anne Taylor, has filed two motions in the state Supreme Court case, alleging Marshall’s motion for relief constitutes the practice of law in violation of his suspension. The court also is being asked to order Marshall to show why he shouldn’t be found in contempt of court for filing the motion.
The court has not taken action on those motions.
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