The New Mexico Supreme Court establishes the “Rules of Professional Conduct” for lawyers in New Mexico. Its Disciplinary Board enforces the “Rules” through the Office of Disciplinary Counsel (ODC). Lawyers are encouraged, perhaps expected, and certainly should be condemned to read its nearly 240 single-spaced pages (pdf). Those convicted of and incarcerated for serious professional misconduct should be required to memorize it as a condition of release.
I had the chance years ago to read Ohio’s statement of professional conduct. When I was 19, the senior partner of a highly regarded law firm in my hometown promised me a partnership-track position the day after I passed the state bar exam. I passed; that is, I politely declined the offer. Even then, I knew myself well enough to know that I did not want to read legalese, split hairs, and write sophistical arguments—all in an ego-quest to conquer competition in depositions or trials. So I missed my chance, but not very much.
My experience with Las Cruces’s government lawyers, City Attorney Jennifer Vega-Brown and Senior Assistant Attorney Robert Cabello, prompted me to skim-read this code of legal conduct. By the time I finished my cursory examination, I concluded that the Court operates a protection racket for lawyers, especially government lawyers. Two biases are essential to its operation; a third bias ODC lawyers are not equipped to handle.
The first bias is the Court’s undue emphasis on the conduct of private lawyers, either alone under their shingle or with others in a law firm, almost to the exclusion of the conduct of government lawyers. The disproportionate frequencies of the words “clients” and “citizens” parallel the disproportionate numbers of private and government lawyers. Yet the proportion of text on private and government lawyers is the inverse of their importance. Lawyers employed by city, county, and the state governments are far more important to the functioning of society although they often work, not for and often against citizens, but presumably, eventually, accidentally in the public interest.
Some fraction of these government lawyers forget that, as lawyers, they are “officers of the court” first, employees of governments second, as well-known examples of their forgetfulness prove. Most government attorneys shield police by reducing or declining charges alleged against them. Many relieve the burdens of court dockets or increase convictions rates by coercing plea bargains, especially in dubious cases, by overcharging unrepresented or poorly represented citizens, mostly minorities, many innocent, and threatening them with heavy penalties and long prison terms. Some coach police to give false or misleading incriminating testimony (aka, “testilying”; my anagram: police = cop lie) and suppress or conceal exonerating evidence to secure convictions, some involving life, some involving death sentences. If the Court were concerned about the integrity of the profession, its “Rules” would not be silent about these and other abusive practices by government lawyers.
The “Rules” says little or nothing specific about professional conduct by government lawyers. However, the discussion in the last article, “Article 8: Maintaining the Integrity of the Profession,” is general enough to include them in “16-804. Misconduct”:
It is professional misconduct for a lawyer to:
A. violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so or do so through the acts of another;
B. commit a criminal act that reflects adversely on the lawyer=s [sic] honesty, trustworthiness or fitness as a lawyer in other respects;
C. engage in conduct involving dishonesty, fraud, deceit or misrepresentation;
D. engage in conduct that is prejudicial to the administration of justice;
E. state or imply an ability to influence improperly a government agency or official or to achieve results by means that violate the Rules of Professional Conduct or other law; or
F. knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law.
G. engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, or marital status in conduct related to the practice of law….
These acts of misconduct apparently apply to all lawyers, though E seems directed to private, not government, lawyers. For them, E should proscribe acts, not just words, “to influence improperly a government agency or official.” The reason is that government lawyers sometimes seek to advance personal agendas under the guise of giving advice, which, even if ill-founded, flawed, or false, is accepted on their authority and acted on.
The second bias is a procedure favoring all lawyers The Court “has established … procedures regarding the investigation of alleged unethical conduct…. The procedures are designed to provide a thorough and objective review of the complaint of conduct and to resolve the matter in a way that is fair to those involved.” So says the Court. But the Board says otherwise in its statement of the complaint process. I quote and comment on its first three steps:
First, if an attorney thinks that the complaint has merit, “The Office of Disciplinary Counsel (ODC) sends a copy of your complaint to the attorney for his or her response. The response is confidential; you will not [ODC’s emphasis] receive a copy.” The process not only ensures the confidentiality of that response, but also enables the accused attorney to tailor a response to rebut the complaint.
Second, “Once the attorney has responded, the file is assigned to one of the attorneys of the ODC.” How can the ODC attorney reliably evaluate the veracity of the response?
Third, “If the response reveals that there was no misconduct, or that the misconduct was a minor isolated instance, ODC will dismiss the complaint and you will receive a letter of the reason(s) for dismissal. The letter will explain how you can request review if you so choose.” The ODC attorney relies on the response to reveal misconduct or not, but the term and syntax are not reassuring that he scrupulously analyzes and evaluates the lawyer’s response with all available information. A complainant’s reply is one important and possibly indispensable means for ODC lawyers to ascertain the truth or falsity of his response. Without stated criteria, no one can be sure that the conduct complained of is “minor” and “isolated.” Once the ODC reaches a decision denying the complaint, the complainant has virtually no chance of overturning it; the Board backs staff. Its procedure can should avoid such issues by involving the complainant before, not after, ODC makes a judgment about the complaint.
The crunch comes when a complaint concerns a lawyer’s honesty. ODC asks the lawyer whether a complaint about lying is true or false. How, short of revelation, does the ODC lawyer ascertain the veracity or falsity of the response? My experience suggests that, with lying a common practice in law enforcement and legal communities, ODC lawyers likely incline to regard most of them as “minor,” whether “isolated” or not.
A third bias is the likely inability of ODC lawyers to address bias-based lawyering in complaints about “race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, or marital status.” Even those best intentioned probably cannot identify indicators or address nuances of these biases.
Were I a member of the Disciplinary Board, I would want to revise the “Rules of Professional Conduct” in six ways:
(1) Group “Rules” by separate professional functions—financial arrangements, communications, etc.
(2) Use subgroups of “Rules” to indicate which apply to all lawyers, which to government lawyers, and which to non-government lawyers.
(3) Eliminate the bias which does not detail the professional conduct of government lawyers to the same level of detail as that for non-government lawyers.
(4) Develop rules to address prosecutorial abuses which implicate police, prosecutors, and judges, and thereby undermine the integrity of the legal profession.
(5) Move the current “Article 8: Maintaining the Integrity of the Profession” forward to be Article 1 and revise it to emphasize the current section “16-804. Misconduct” so that it frames the rest of the “Rules” as elaborated guidance to avoid misconduct by lawyers or disservice to their employers or clients.
(6) Eliminate the bias against complainants by revising procedures to give them timely opportunity and the time to address lawyers’ responses to the complaint.
If the Court wants to maintain the integrity of the profession, it has serious work to do.
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