February 9, 2009 • Volume 48, No. 6 · Ba r Bu l l e t i n - February 9, 2009 - Volume 48, No. 6...

Bar Bulletin - February 9, 2009 - Volume 48, No. 6 1

Inside This Issue

www.nmbar.org

February 9, 2009 • Volume 48, No. 6

Table of Contents ....................................................................3

Update Your Contact Information 2009–2010 Bench & Bar Directory ......................................5

Keys to Law Practice Management Financial Planning: Setting Goals, by Donald D. Becker .....7

Committee on Women and the Legal Profession: Ask Pat .......8

From the New Mexico Court of Appeals

2009-NMCA-004, No. 27,654: State of New Mexico ex rel. State Engineer v. Commissioner of Public Lands ......................................14

2009-NMCA-005, No. 27,922: Carlsbad Hotel Associates v. Patterson-UTI Drilling Company .............................................................21

2009-NMCA-006, No. 28,212: Pipkin v. Daniel ................................................................28

Al’s Place by Kim Koonce (see page 3)

Special Insert:

New Mexico LawyerA Step Beyond Discipline:

Enhancing Our

Self-Regulated Profession

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2 Bar Bulletin - February 9, 2009 - Volume 48, No. 6

AN INVITATION

MeeT The PressBrought to you by the Membership services Committee

Where: state Bar Center 5121 Masthead Ne Albuquerque, New Mexico 87109 Date: Friday, March 20, 2009 Time: 8 to 9:30 am

New Mexico Business Weekly The publisher, editor and reporters will be available to

answer your questions regarding the news media.

“how do we get a story in the paper?”“Where do we send our press releases?”

“how do we get our after hours photos in the paper?”

A buffet continental breakfast will be served.

space is limited; reservations required by March 13, 2009.

For more information or to rsVP, please contact Marcia Ulibarri, Account executive, state Bar of New Mexico

505.797.6058 | [email protected]

mailto:[email protected]


Table of ConTenTs

MeetingsFebruary9 Taxation Section Board of Directors, noon, via teleconference

10 Appellate Practice Section Board of Directors, noon, Rodey Law Firm

11 Children’s Law Section Board of Directors, noon, Juvenile Justice Center

11 Criminal Law Section Board of Directors, noon, State Bar Center

12 Public Law Section Board of Directors, noon, Risk Management Division, Santa Fe

14 Ethics Advisory Committee, 10 a.m., State Bar Center

16 Attorney Support Group, 7:30 a.m., First United Methodist Church

State Bar WorkshopsFebruary11 Estate Planning/Probate Workshop 6 p.m., State Bar Center, Albuquerque

25 Consumer Debt/Bankruptcy Workshop 5:30 p.m., Branigan Library, Las Cruces

25 Consumer Debt/Bankruptcy Workshop 6 p.m., State Bar Center, Albuquerque

March 25 Consumer Debt/Bankruptcy Workshop 6 p.m., State Bar Center, Albuquerque

25 Consumer Debt/Bankruptcy Workshop 5:30 p.m., Branigan Library, Las Cruces

April22 Consumer Debt/Bankruptcy Workshop 6 p.m., State Bar Center, Albuquerque

Notices ................................................................................................................................................................4Keys to Law Practice Management

Financial Planning: Setting Goals, by Donald D. Becker .............................................................7Committee on Women and the Legal Profession: Ask Pat ................................................................8Legal Education Calendar ............................................................................................................................9Writs of Certiorari ......................................................................................................................................... 11List of Court of Appeals’ Opinions ........................................................................................................... 13Opinions


2009-NMCA-004, No. 27,654: State of New Mexico ex rel. State Engineer v. Commissioner of Public Lands ................................................................................................... 14

2009-NMCA-005, No. 27,922: Carlsbad Hotel Associates v. Patterson-UTI Drilling Company ................................................................................................................................. 21

2009-NMCA-006, No. 28,212: Pipkin v. Daniel ........................................................................... 28

Advertising ..................................................................................................................................................... 30

With respect to parties, lawyers, jurors and witnesses:

I will give all cases deliberate, impartial and studied analysis and consideration.

Professionalism Tip

Officers, Board of Bar Commissioners Henry A. Alaniz, President Stephen S. Shanor, President-Elect Jessica A. Pérez, Vice President Hans William Voss, Secretary-Treasurer Craig A. Orraj, Immediate-Past President

Board of Editors Janet Blair Joan Marsan Paul A. Bleicher Kathryn Joy Morrow Joel McElroy Carson Steven K. Sanders Mark A. Glenn Stacey E. Scherer Danny W. Jarrett Elizabeth Staley

State Bar Staff Executive Director Joe Conte Membership and Communications Director Chris Morganti Editor Dorma Seago (505)797-6030•[email protected] Graphic Designer Julie Schwartz [email protected] Account Executive Marcia C. Ulibarri (505)797-6058•[email protected] Pressman Brian Sanchez Production Assistant Pam Zimmer Press Shop Assistant Michael Rizzo

©2009, State Bar of New Mexico. No part of this publica-tion may be reprinted or otherwise reproduced without the publisher’s written permission. The Bar Bulletin has the authority to edit letters and materials submitted for publication. Publishing and editorial decisions are based on the quality of writing, the timeliness of the article, and the potential interest to readers. Appearance of an article, editorial, feature, column, advertisement or photograph in the Bar Bulletin does not constitute an endorsement by the Bar Bulletin or the State Bar of New Mexico. The views expressed are those of the authors, who are solely responsible for the accuracy of their citations and quota-tions. State Bar members receive the Bar Bulletin as part of their annual dues. The Bar Bulletin is available at the subscription rate of $125 per year and is available online at www.nmbar.org.

The Bar Bulletin (ISSN 1062-6611) is published weekly by the State Bar of New Mexico, 5121 Masthead NE, Albuquerque, NM 87109-4367. Periodicals postage paid at Albuquerque, NM. Postmaster: Send address changes to Bar Bulletin, PO Box 92860, Albuquerque, NM 87199-2860.

(505)797-6000•(800)876-6227•Fax:(505)828-3765 E-mail:[email protected].•www.nmbar.org

February9,2009,Vol.48,No.6

Cover Artist: Kim Koonce sold her first work and won her first painting competition in Texas 30 years ago. A move to New Mexico in 1999 turned her love and joy of painting into a passion. She continues to refine her artistic style and was recently named a top finalist in a competition by The Artist’s Magazine. Her wide range of commissioned works hangs in several New Mexico homes and businesses. To see the cover art in its original color, visit www.nmbar.org and click on Attorneys/Members/Bar Bulletin.









noTiCes

Judicial Records Retention and Disposition Schedules Pursuant to the Judicial Records Retention and Disposition Schedules, exhibits (see specifics for each court below) filed with the courts for the years and courts shown below, including but not limited to cases that have been consolidated, are to be destroyed. Cases on appeal are excluded. Counsel for parties are advised that exhibits (see specifics for each court below) can be retrieved by the dates shown below. Attorneys who have cases with exhibits may verify exhibit information with the Special Services Division at the numbers shown below. Plaintiff(s) exhibits will be released to counsel of record for the plaintiff(s), and defendant(s) exhibits will be released to counsel of record for defendant(s) by Order of the Court. All exhibits will be released in their entirety. Exhibits not claimed by the allotted time will be considered abandoned and will be destroyed by Order of the Court. Court Exhibits For Years May be Retrieved Through

13th Judicial District Court Exhibits in Criminal Cases (including unmarked) 1976–2007 Feb. 15 (505) 867-2376 Exhibits in Domestic Cases 1990–2006 Feb. 15 Exhibits in Juvenile Delinquency Cases 1996–2004 Feb. 15 Exhibits in Lower Court Appeals 2004–2007 Feb. 15 Exhibits in Probate Cases 1999–2006 Feb. 15 Exhibits in Fugitive Cases 2006 Feb. 15 Exhibits in Guardianship/Conservatorship Cases 2004 Feb. 15

CourT newsN.M. Supreme CourtCompilation CommissionPublications Available The following official publications are available from the New Mexico Compila-tion Commission:

2009• New Mexico Rules Annotated™;2009 • Official Forms on CD™;January 2009 • New Mexico One Source of Law™ quarterly release with online service;New Mexico Selected Taxation and Rev-•enue Laws and Regulations™ released in Dec. 2008; and NM Report• , Volume 144.

For information, call Brad Terry, (505) 363-3116.

First Judicial District Court Brown-Bag Lunch Meeting A brown-bag lunch meeting will be held at noon, Feb. 10, in the courtroom of Judge Michael E. Vigil. Issues and topics for discussion may be submitted to Sally or Kim in the Criminal Division.

Nominating CommissionSolicitation of AdditionalApplicants The 1st Judicial District Court Nomi-nating Commission will reconvene at the Judge Steve Herrera Judicial Complex, 100 Catron Street, Santa Fe, at 9 a.m., Feb. 27, to consider Governor Bill Richardson’s

request for additional names to fill the vacancy on the Court which exists in Rio Arriba County due to the appointment of Judge Timothy Garcia to the New Mexico Court of Appeals.The chair of the Nominating Commission solicits additional applications for this position from lawyers who meet the statutory qualifications in Article VI, Section 14, of the New Mexico Statutes Annotated 1978. Applications may be obtained from the Judicial Selection Web site, http://lawschool.unm.edu/judsel/application.php, or via e-mail by calling Sandra Bauman, (505) 277-4700. The deadline for applications is 5 p.m., Feb. 16. Applications received after that date will not be considered.

U.S. District Court, District of New Mexico2009 Federal Bar Dues The collection of attorney dues for the calendar year 2009 has been ordered at the rate of $25. Submit dues to: Clerk of Court U.S. District Court 333 Lomas Blvd. NW, Suite 270 Albuquerque, NM 87102.

sTaTe bar newsAttorney Support Group • Afternoon groups meet regularly on

the first Monday of the month: March 8, 5:30 p.m. • Morning groups meet regularly on

the third Monday of the month: Feb. 16, 7:30 a.m.

Both groups meet at the First United Methodist Church at Fourth and Lead SW, Albuquerque. For more information, contact Bill Stratvert, (505) 242-6845.

Board of Bar CommissionersCommissioner Vacancy A vacancy in the lst Bar Commissioner District, representing Bernalillo County, was created due to Alan M. Malott’s ap-pointment to a judgeship. The board will make the appointment at its Feb. 27 meeting to fill the vacancy until the next regular election of commissioners in November. Active status members with a principal place of practice located in the lst Bar Commissioner District are eligible to apply. Applicants should plan to attend the 2009 board meetings scheduled for May 8, July 9 in Pojoaque, Sept. 11 and Dec. 11. Members interested in serving on the board should submit a letter of interest and resume to Executive Director Joe Conte, State Bar of New Mexico, PO Box 92860, Albuquerque, NM 87199-2860, by Feb. 13.

Delivery of Legal Services to People with Disabilities CommitteeDonations Requested The Delivery of Legal Services to People with Disabilities Committee is requesting that all New Mexico attorneys consider mak-ing a tax deductible contribution to the Pro Bono Interpreter Fund at the time the State Bar dues form is submitted. This fund helps attorneys pay for interpreters for pro bono

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Update Your Contact Information for the 2009–2010 Bench & Bar Directory

Deadline: March 20 State Bar staff is updating information for the 2009–10 Bench & Bar Directory. Address changes will be accepted through March 20. Publication is not guaranteed for information submitted after that date.

To verify your contact information, go to www.nmbar.org, Find an Attorney, and search by name. Click on Contact Us to submit changes online; or mail changes to Address Changes, PO Box 92860, Albuquerque, NM 87199-2860; or fax to (505) 797-6019; or e-mail to [email protected]..

Pursuant to Rule 17-202 (A) NMRA, the address of record will be published. If the street address is different from the address of record, you may request that the street address not be disclosed to the public.

clients who are deaf. For more information, visit www.nmbar.org, Membership Services.

Equal Access to JusticeAuction Items Needed Equal Access to Justice will host its famous silent auction at the State Bar’s an-nual meeting in July 2009 to raise money for civil legal services for needy New Mexicans. Auction items are needed: gift certificates, handmade crafts, jewelry, art, vacation home rentals, hotel packages, air tickets, vintage wine or creative gift packages, etc. Contact Kate Mulqueen, (505) 797-6064 or [email protected] by June 1.

New Mexico Medical Review CommissionPolicies and Procedures Available Online The New Mexico Medical Review Com-mission was created by Section 41-5-14 of the New Mexico Medical Malpractice Act and was enacted in 1976. The Medical Malpractice Act mandates the screening of all applications of alleged medical malprac-tice against a qualified medical provider by the Medical Review Commission. The act provides for three panel members from the medical profession and three panel members from the State Bar to review each applica-tion. Commission policies and procedures are now available online at www.nmbar.org, About Us/Committees/NM Medical Review. To volunteer to serve on the com-mission, send a letter of interest and resume to Christine Morganti, [email protected], or by regular mail to State Bar of New Mexico, PO Box 92860, Albuquerque, NM 87199-2860.

Paralegal DivisionLuncheon CLE Series The Paralegal Division invites members of the legal community to bring a lunch and attend Topics in Family Law presented by Lynda Latta, Esq. The program will be held from noon to 1 p.m., Feb. 11, at the State Bar Center and offers 1.0 general CLE credit (unless otherwise noted). The registration fee is $16 for attorneys, $10 for members of the Paralegal Division, and $15 for non-members. Registration begins at the door at 11:30 a.m. For more information, contact Cheryl Passalaqua, (505) 247-0411, or Evonne Sanchez, (505) 222-9356.

Prosecutors Section Annual Awards The Prosecutors Section is soliciting nominations for awards the section will present to five prosecutors at the Association of District Attorneys Spring Conference, date TBA. Descriptions of the five award categories are located at www.nmbar.org, About Us/Sections/Prosecutors Section/Annual Awards. Submit nominations by Feb. 27 to Michael D. Cox, Senior Trial Prosecutor, c/o 2nd Judicial D.A. Office, 520 Lomas Blvd NW, Albuquerque, NM 87102 or e-mail [email protected]. See the Feb. 2 (Vol. 48, No. 5) Bar Bulletin for more information.

Public Law SectionAnnual Public Lawyer Award The Public Law Section is currently ac-cepting nominations for the Public Lawyer of the Year Award, which will be presented on Law Day, May 1. Prior recipients include Florenceruth Brown, Frank D. Katz, Doug-las Meiklejohn, Martha A. Daly, Charles N. Estes, Mary M. McInerny, Gerald Bruce Richardson, Peter T. White, Robert M. White, Paul L. Biderman, Frank D. Weissbarth, Stuart M. Bluestone and Clark de Schweinitz. The work or service recognized by the award must have occurred in New Mexico. A candidate must be admitted to practice in New Mexico but does not have to be a member of the Public Law Section to be eligible. The following are factors that will be considered in making this award. An ap-plicant need not meet all of these criteria: 1. significant length of service in govern-ment, which does not have to be continuous or for one specific employer, or for work as an attorney;

2. excellence as an attorney/advisor and/or advocate; 3. training or education of the public or State Bar concerning public issues; 4. mentorship of junior attorneys in the public sector; 5. role model for other public lawyers; 6. involvement in one particularly difficult or important case or negotiation that significantly advanced a governmental policy or purpose; 7. service to social welfare organizations, charitable institutions or nonprofit entities connected with the practice or enhance-ment of an area of public law; 8. advocacy of, or work on, issues or leg-islation of importance in the public sector, such as open meetings and public records, public procurement and administrative procedures; 9. a lawyer who is not likely to be rec-ognized for his or her outstanding work as a public lawyer; and 10. a lawyer whose personal character and dedication to public law and public service furthers the integrity and repute of the legal profession. Send nominations by 5 p.m., March 2, to Doug Meiklejohn, [email protected] or by mail to New Mexico Environmen-tal Law Center, 1405 Luisa St. #5, Santa Fe, NM 87505-4074. The selection committee will consider all nominated candidates and may nominate candidates on its own.

Young Lawyers DivisionSummer Fellowships The Young Lawyers Division is offering two fellowships for the summer of 2009 to law students who are interested in working in public interest law or the government sector. Depending on the circumstances






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SBNN Placement CenterBringing Legal Professionals

and Employers Together

If you are interested in making a career move, relocating, or looking

for that next great hire, our professional counselors can help.

Visit the Placement Center at www.nmbar.org or call

1-877-893-4415.

2009 Dues anD liCensing The 2009 license and dues forms were mailed Dec. 8, 2008.• License and dues fees were payable on Jan. 1 and are late after Feb. 2.• Members who have not received the form should notify the State Bar office, • (505) 797-6035. Fees may also be paid online through secured eCommerce at www.nmbar.org.• License and disciplinary fees are mandatory and must be paid to maintain • license status. Without exception, fees are due, whether or not you received your form.•

Late fees may be assessed for payments postmarked after Feb. 2, 2009.

of the position, the awards could be up to $3,000 for the summer. To be eligible, applicants must be current law students in good standing with their schools. Applica-tions must include: (1) a letter detailing the student’s interest in public interest law or the government sector; (2) a resume; and (3) a written offer of employment for an unpaid legal position in public inter-est law or the government sector for the summer of 2009. Applications containing offers of employment that are contingent upon the successful completion of a back-ground check will not be considered unless verification of the successful completion of the background check is also provided. Submit applications to J. Brent Moore, YLD Summer Fellowship Coordinator, Insurance Division, N.M. Public Regula-tion Commission, PO Box 1269, Santa Fe, NM 87504-1269. Applications must be postmarked by March 31. Direct questions to J. Brent Moore, (505) 827-4645.

Wills for Heroes Volunteers Needed The Young Lawyers Division seeks at-torney volunteers for its fourth New Mexico Wills for Heroes event on March 27, 3rd Floor Conference Room, 2nd Judicial Dis-trict Court in Albuquerque. Attorneys will draft wills and other basic estate planning documents, free of charge, to qualified first responders. No prior experience with wills or estate planning is needed as a computer program will be utilized to produce the

documents. Volunteers must their own lap-tops. For more information or to volunteer, contact Martha Chicoski, [email protected], by March 13.

oTher barsAmerican Bar AssociationE. Smythe Gambrell Professionalism Awards Nominations are now being accepted for the 19th Annual E. Smythe Gambrell Professionalism Awards, recognizing projects that enhance professionalism among lawyers. Bar associations, law schools, law firms and other not-for-profit law-related organiza-tions are eligible for the awards. The ABA Standing Committee on Professionalism, a component of the ABA Center for Profes-sional Responsibility, will present up to three awards of $3,500 each during the 2009 ABA Annual Meeting in Chicago, Illinois. Award criteria include overall quality, replicabil-ity, likelihood of continuation, innovation, success, substantive strength in the area of professionalism, scope and other distinguish-ing features of the applicant programs. The award is named for E. Smythe Gambrell, who served simultaneously as president of the ABA and the American Bar Foundation from 1955 to 1956. Gambrell founded the Legal Aid Society in Atlanta, where he practiced law from 1922 until his death in 1986. Entry forms, guidelines and information about pre-vious award recipients are available online at www.abanet.org/cpr/gambrell.html. Direct questions to Art Garwin, (312) 988-5294, or [email protected]. The deadline for entries is March 31.

unMSchool of LawSpring Library HoursBuilding and Circulation Monday–Thursday 8 a.m.–11 p.m. Friday 8 a.m.–6 p.m. Saturday 9 a.m.–6 p.m. Sunday Noon–11 p.m.Reference Monday - Friday 9 a.m.–6 p.m. Saturday Closed Sunday Noon–4 p.m.

Williams InstituteMoot Court Team Judges and attorneys are being sought to preside over an oral argument practice for the Williams Institute Moot Court team (focused on sexual orientation and gender identity law). Details about the competition can be found at http://www.law.ucla.edu/williamsinstitute/programs/FifthAnnualWilliamsInstituteMootCourt-Competition.html. This year’s problem focuses on the constitutionality of “Don’t Ask, Don’t Tell” and the use of foreign precedent by U.S. courts. Dates and start times are: Feb. 9, 5 p.m. Feb. 10, 6 p.m. Feb. 12, 7 p.m. Feb. 14 or 15, Flexible Feb. 16, 5 p.m. Feb. 17th, 6 p.m.New Mexico Supreme Court justices are presiding over the final argument before competition at 6 p.m., Feb. 18. For more information, contact Rose Bryan, [email protected], UNM School of Law, Class of 2010.





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oTher newsScholarship Fund A scholarship has been created at the University of Richmond Law School in memory of Christopher Hassan-Baker, who graduated from the law school in 1996. Hassan-Baker practiced law with Frechette & Associates in Albuquerque until his death in 1999. Donations should be sent directly to the university: University of Richmond Law School Office of Development and Alumni Programs 28 Westhampton Way Richmond, VA 23173 Direct questions to Cindy Stubbe, as-sistant director of Development and Alumni Programs, [email protected], or (804) 289-8029.

Senior Citizens Law OfficeBoard of Directors Vacancy A vacancy exists on the board of directors of the Senior Citizens Law Office. SCLO is a non-profit providing free civil legal help to senior citizens in Albuquerque and sur-rounding communities. The board meets quarterly and each meeting lasts approxi-mately two hours. Consider serving on the board of SCLO as a partial satisfaction of the pro bono commitment to provide legal services to low-income persons. For more information, contact Executive Director Angelica Anaya Allen, (505) 265-2300, or [email protected].

KEYSto Law Practice

Management

finanCial Planning: seTTing goals

By Donald D. Becker, Esq. Every firm has a budget. For some, that might mean putting money received into a box. Bills are then paid out of the box, and at the end of

the month, the attorney gets to keep what remains in the box.

Another form (abusing a spreadsheet) is to take all of the revenue and expenses for the last twelve months, divide by twelve, and multiply by 1.03 for a 3% inflation factor. Then make the necessary fudges for a profit, give a copy to your banker, and then forget about it.

Another form (again abusing a spreadsheet) is to repeat the above, but use 12 columns (one for each month). Again, give a copy to your banker and then forget about it.

The historically oriented law firm (i.e., take what has happened in the past and project it into the future) is very common. An experienced attorney would quickly advise his or her client that what has happened in the past can be irrelevant to what will happen in the future. If you were advising a client about to buy a business, you would encourage him or her to carefully examine both the business and the business environment. The attorney is going to encourage the client to look for changes or hidden problems and examine them carefully. The client might be advised to have an independent expert analyze, evaluate, and provide a written report with recom-mendations for the future of the business.

Why do law firms refuse to get outside assistance and make ad hoc management decisions. Are we open to suggestions? What assistance is needed? How can you best get the assistance that is needed? What would you tell your clients in the same situation?

Management experts indicate that within every plan there should be goals and objectives. Further, true goals and objectives must be quantified so that they can be measured. Attorneys are aware that the “billable hour” has been used to quantify the services being sold to a client. With the use of this quantifier to determine compensation, the attorney is going to be rewarded or punished based upon his or her ability to measure rather than upon his or her value to the client or the firm. No matter how valuable, if a benefit or service cannot be quantified, then there will be a dis-incentive. An attorney cautioning a client about over reliance on numbers might be reminded of a quote popularized by Mark Twain and attributed to many: “There are three kinds of lies: lies, damned lies, and statistics.” Numbers are objective and simple. They can be irrelevant. They can result in counter-productive activities. How can a firm plan for the future and monitor performance without statistics? How can a law firm convert a nice looking budget or plan into an active management tool?

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Ask Pat, provided by the Committee on Women and the Profession, will answer questions about gender bias in the legal profession. Letters are loosely based on real events. Send comments or letters to “Ask Pat,” State Bar of New Mexico, PO Box 92860, Albuquerque, NM 87199-2860.

Committee on Women and the LegaL Profession

Ask PatDear Pat:

In reviewing bills that are being introduced during the legislative session, I noticed that HB 198 addresses “gender neutral language” in our state statutes. I thought New Mexico already had a statute that addressed this issue. In these difficult economic times, how much will implementing this statute cost us?

Signed, “Bill” Finder

Dear “Bill” Finder:

House Bill 198 requires that gender neutral language be used in enacting and revising state legislation and rules. The current law NMSA 1978, §12-2A-5(B) provides that “Use of a word of one gender includes corresponding words of the other genders.” Why change?

Using a masculine pronoun or noun to refer to a person of either sex reinforces stereotypes. As a New York Assembly Member said, “What we say, how we say it, sends a message. We changed the term stewardess to flight attendant and that changed the image. We now have police officers instead of policemen, as one example.”

The current law has not been effective in making our laws more gender neutral. Since 2002 the Committee on Women and the Legal Profession first supported a bill similar to HB 198, acting pursuant to the unanimous authorization of the Board of Bar Commissioners. Unfortunately, the situation has not improved since then. In 2002, there were 2,459 statutes that contained the word he but not she. By 2005, that had grown to 2,616. In 2002, there were 79 references to the attorney general as he but not she. Now, there are 77 such references. In 2002, there were 402 references to judges as he but not she. Today that number is 424. One provision prohibits the “father, son, or brother” of a district attorney from defending a person charged with a criminal offense in that district, but says nothing about whether a mother, daughter or sister of a district attorney may do so. See NMSA 1978, §36-2-20.

The late Supreme Court Justice Pamela Minzner recognized this problem and, at the request of the Committee on Women and the Legal Profession, was largely responsible for amending the New Mexico Supreme Court’s General Rules in 2006. The amendment to Rule 23-106, approved by the Supreme Court on Jan. 10, 2006, requires “all proposed amendments and new rules” to be drafted with gender neutral language. HB 198 adopts similar language for all new statutes and amendments.

As for cost, “Bill,” there is no cost involved. House Bill 198 requires that new and newly amended statutes be written in gender neutral language—on a going forward basis only. Massive rewrites and going back through all existing statutes is not required.

The Committee on Women and the Legal Profession encourages you to contact your state legislator to encourage each legislator’s support of HB 198. When HB 198 is enacted at the end of this session, New Mexico will join Maine, Maryland, Ohio, Minnesota and other states that have passed similar legislation.

Sincerely, Pat


legal education

G = General E = Ethics

P = Professionalism VR = Video Replay Programs have various sponsors; contact appropriate sponsor for more information.

10–11 2009 Ethics in Civil Litigation, Parts 1 and 2

National Teleseminar Center for Legal Education of NMSBF 2.0 E (505) 797-6020 www.nmbarcle.org

10 Employee Discharge and Documentation

Albuquerque Lorman Education Service 6.6 G 1-866-352-9539 www.lorman.com

11 Topics in Family Law Albuquerque State Bar Paralegal Division, Albuquerque 1.0 G (505) 247-0411 or (505) 222-9356

12 Child Custody From A to Z Albuquerque NBI, Inc. 5.0 G, 1.0 E 1-800-930-6182 www.nbi-sems.com

12 Religious Accommodation in the Workplace

National Teleseminar Center for Legal Education of NMSBF 1.0 G (505) 797-6020 www.nmbarcle.org

13 Live Replay: 2008 Fiduciary Litigation Update


17 2008 Civil Procedure Update VR, State Bar Center Center for Legal Education of NMSBF 6.7 G (505) 797-6020 www.nmbarcle.org

FeBruary

17 Angels and Demons: How Attorneys Help and Hinder ADR

VR, State Bar Center Center for Legal Education of NMSBF 1.0 P (505) 797-6020 www.nmbarcle.org

17 Avoiding Oops! Uh-Oh! and Yikes! Some Ethical Dilemmas for Lawyers

VR, State Bar Center Center for Legal Education of NMSBF 1.0 E (505) 797-6020 www.nmbarcle.org

17 Entity Conversions: LLCs, Corporations, and S Corps, From One Thing to Another


17 Lawyer Substance Abuse Addictions and Consequences

Telephone Seminar TRT Inc. 1.0 E , 1.0 P 1-800-672-6253

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17 Trust Accounting: It’s Not an Oxymoron

VR, State Bar Center Center for Legal Education of NMSBF 1.5 E, 1.0 P (505) 797-6020 www.nmbarcle.org

19 Negotiation Ethics: What You Can Say and Can’t

National Teleseminar Center for Legal Education of NMSBF 1.0 E (505) 797-6020 www.nmbarcle.org

20 Live Replay: Employees v. Independent Contractors


24 Health Care Issues in Estate Planning


24 RefiningYourOpening and Closing Statements

Albuquerque NBI Inc 6.0 G (715) 835-8528 www.nbi-sems.com

26 Advanced Workers’ Compensation Albuquerque Sterling Education Services 6.6 G (715) 855-0495 www.sterlingeducation.com

26–27 Live Replay: 2008 Update on Advising MD and DDS Practice, Parts 1 and 2


28 Learn to Review and Negotiate the Two Contracts Most Used in Business

Albuquerque Contracts 101 Seminars Inc. 3.8 G 1-866-776-0208 www.contracts101seminars.com

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March

3 FiduciaryStandardsforNonprofit DirectorsandOfficers


4 Environmental Law for the Non-Practicioner

Albuquerque NBI, Inc. 6.0 G 1-800-930-6182 www.nbi-sems.com

5 Live Replay: Estate Planning for Liquidity


6 24th Annual Bankruptcy Year in Review

State Bar Center Center for Legal Education of NMSBF 6.0 G, 1.0 P (505) 797-6020 www.nmbarcle.org

6 Subordinate Lawyers: Sit, Stay, Roll Over No More Telephone Seminar TRT Inc. 1.0 E, 1.0 P 1-800-672-6271 www.trtcle.com

10 Developments in Age Discrimination For Employment



Telephone Seminar TRT Inc. 1.0 E, 1.0 P 1-800-672-6253

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11 Patents, Copyrights and Trademarks

Albuquerque State Bar Paralegal Division, Albuquerque 1.0 G (505) 247-0411 or (505) 222-9356

11 Probate Beyond the Basics NBI Inc. Albuquerque 6.5 G (715) 835-8526 www.nbi-sems.com

18 Discipline of Students

with Special Needs Lorman Education Services Albuquerque 6.0 G (715) 833-3940 www.lorman.com


24 Advanced Uninsured/Underinsured Motorist Law

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Telephone Seminar TRT Inc. 1.0 E , 1.0 P 1-800-672-6253

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Kathleen Jo Gibson, Chief Clerk New Mexico Supreme Court PO Box 848 • Santa Fe, NM 87504-0848 • (505) 827-4860

effeCTive february 9, 2009

Writs oF certiorari

as updated By the clerk oF the neW Mexico supreMe court

petitions For Writ oF certiorari Filed and pending: Date Petition FiledNO. 31,544 State v. Head (COA 28,562) 1/29/09NO. 31,543 Kennedy v. Heredia (12-501) 1/28/09NO. 31,542 Kysar v. State Engineer (COA 28,471) 1/28/09NO. 31,541 Varela v. Tapia (12-501) 1/27/09NO. 31,539 McGary v. AMS Staff Leasing (COA 28,867) 1/26/09NO. 31,537 Hoover v. Metropolitan Prop. & Cas. Ins. (COA 28,776) 1/26/09NO. 31,536 State v. Droze (COA 28,713) 1/26/09NO. 31,533 State v. Sims (COA 28,771) 1/23/09NO. 31,532 State v. Zemariam (COA 28,810) 1/23/09NO. 31,531 State v. Candelaria (COA 27,367) 1/23/09NO. 31,528 State v. Lopez (12-501) 1/23/09NO. 31,526 State v. Phillips (COA 27,019) 1/20/09NO. 31,525 State v. Latham (COA 28,704) 1/20/09NO. 31,523 State v. Moreno (COA 28,805) 1/16/09NO. 31,522 State v. Moreno (COA 28,891) 1/16/09NO. 31,534 Westbrook v. Moya (12-501) 1/15/09NO. 31,521 State v. Jernigan (COA 28,835) 1/15/09NO. 31,520 State v. Mitchell (COA 28,645) 1/14/09NO. 31,517 State v. Chavez (COA 27,996) 1/12/09NO. 31,516 State v. Valenzuela (COA 26,071) 1/12/09NO. 31,515 State v. Phillips (COA 27,019) 1/12/09NO. 31,458 Northeast Valley v. Bernalillo (COA 28,784) 1/12/09 Responsefiled1/26/09NO. 31,513 State v. Garcia (COA 28,683) 1/9/09NO. 31,512 State v. Leyba (COA 27,597) 1/9/09NO. 31,510 State v. Smith (COA 27,704) 1/7/09NO. 31,433 Romero v. Morris (COA 26,993) 1/7/09 Responsefiled1/22/09NO. 31,494 State v. Aguilar (COA 27,198) 1/5/09 Response due 2/16/09NO. 31,367 Marquez v. Hatch (12-501) 10/8/08 Responsefiled11/25/08

certiorari granted But not yet suBMitted to the court:

(Parties preparing briefs) Date Writ IssuedNO. 30,548 State v. Leyba (COA 27,478) 9/17/07NO. 30,766 State v. Jones (COA 27,342) 12/17/07NO. 30,827 State v. Sims (COA 26,590) 1/22/08NO. 30,894 State v. Soto (COA 26,861) 2/28/08NO. 31,065 State v. Rael (COA 26,737) 5/16/08NO. 31,092 State v. Mailman (COA 27,966) 5/30/08NO. 31,106 State v. Anaya (COA 27,114) 5/30/08

NO. 31,117 State v. Moore (COA 28,243) 6/12/08NO. 31,101 State v. Montano (COA 28,002) 6/19/08NO. 31,134 State v. Alderete (COA 28,325) 6/27/08NO. 31,151 State v. Munoz (COA 26,956) 6/27/08NO. 31,100 Allen v. LeMaster (12-501) 6/27/08NO. 31,121 Dietrich v. Tapia (12-501) 7/21/08NO. 31,186 State v. Bullcoming (COA 26,413) 7/21/08NO. 31,191 State v. Schwartz (COA 28,349) 7/21/08NO. 31,218 State v. Henley (COA 27,925) 7/25/08NO. 31,187 State v. Aragon (COA 26,185) 7/31/08NO. 31,215 State v. Johnson (COA 26,878) 8/6/08NO. 31,224 State v. Harrison (COA 27,224) 8/6/08NO. 31,213 State v. Dodson (COA 28,382) 8/6/08NO. 31,226 State v. Shanta R.B. (COA 28,403) 8/11/08NO. 31,244 State v. Slayton (COA 27,892) 8/13/08NO.31,245 Statev.Littlefield (COA27,504) 8/13/08NO. 31,185 Talbott v. Roswell Hospital Corp. (On rehearing)(COA 27,135) 8/25/08NO. 31,265 State v. Hill (COA 27,401) 8/25/08NO. 31,279 Lions Gate v. D’Antonio (COA 28,668) 9/9/08NO. 31,288 State v. Savedra (COA 27,288/27,289/27,290) 9/15/08NO. 31,294 State v. Marquez (COA 27,735) 9/22/08NO. 31,308 State v. Sosa (COA 26,863) 9/22/08NO. 31,315 D’Antonio v. Garcia (COA 27,681) 10/1/08NO. 31,317 State v. Day (COA 25,290) 10/1/08NO. 31,318 Dept. of Transportation v. S & S Trezza (COA 28,475) 10/1/08NO. 31,232 Ovecka v. Burlington (COA 26,449) 10/6/08NO. 31,364 Mountain States v. Allstate Ins. Co. (COA 28,686) 11/5/08NO. 31,360 State v. Morales (COA 26,969) 11/5/08NO. 31,359 State v. Gladu (COA 28,684) 11/5/08NO. 31,326 State v. Anaya (COA 28,629) 11/17/08NO. 31,363 Hanosh v. King (COA 28,175) 11/17/08NO. 31,374 Schultz v. Pojoaque Tribal Police Dept. (COA 28,508) 11/17/08NO. 31,365 State v. Lucero (COA 27,364) 11/20/08NO. 31,325 Kersey v. Hatch (12-501) 12/18/08NO. 31,328 Garcia v. State (On rehearing) (12-501) 12/29/08NO. 31,430 State v. Ochoa (COA 28,175) 12/30/08NO. 31,287 Waterhouse v. Heredia (12-501) 1/6/09NO. 31,416 Carlsbad Hotel Associates v. Patterson (COA 27,922) 1/6/09NO. 31,460 State v. Garley (COA 28,760) 1/16/09NO. 31,480 City of Aztec v. Gurule (COA 28,705) 2/2/09NO. 31,491 Ideal v. Burlington Resources Oil & Gas (COA 29,025) 2/2/09NO. 31,495 State v. Romero (COA 27,236) 2/2/09


Writs oF certiorari www.supremecourt.nm.org

certiorari granted and suBMitted to the court:

(Submission = date of oral argument or briefs-only submissionSubmission Date)

NO. 30,558 Beggs v. City of Portales (COA 26,903) 3/10/08NO. 30,536 Cordova v. World Finance (COA 27,436) 5/13/08NO. 30,318 State v. Trujillo (COA 25,898) 8/12/08NO. 30,543 Primetime v. City of

Albuquerque (COA 25,616) 8/13/08NO. 30,717 Cortez v. Cortez (COA 27,629) 8/13/08NO. 30,722 State v. UU Bar Limited (COA 26,194) 8/25/08NO. 30,735 Salas v. Mountain States (COA 26,385) 8/25/08NO. 30,465 State v. Flores (COA 27,180) 9/15/08NO. 30,663 State v. Hubble (COA 26,452) 9/15/08NO. 30,747 Bianco v. Horror One (COA 27,887) 9/24/08NO. 30,656 Durham v. Guest (COA 26,123) 9/24/08NO. 30,640 Dewitt v. Rent a Center (COA 27,596) 9/24/08NO. 30,897 State v. Sewell (COA 26,742) 10/29/08NO. 30,939 Grygorwicz v. Trujillo (COA 27,752) 10/29/08NO. 30,620 State v. Nozie (COA 25,481) 10/29/08NO. 30,710 Marbob v. NM Oil (COA 27,871) 10/29/08NO. 30,657 State v. Nick R. (COA 27,145) 10/29/08NO. 30,654 State v. Belanger (COA 26,771) 10/29/08NO, 30,899 Bishop v. Evangelical

Society (COA 25,510) 11/12/08NO. 30,916 State v. Quick (COA 27,013) 11/12/08NO. 30,993 State v. Myers (COA 26,837) 11/12/08NO. 30,755 State v. Glascock (COA 26,337) 11/26/08NO. 30,787 Cable v. Wells Fargo Bank

(On reconsideration) (COA 26,357) 12/15/08NO. 30,937 State v. Garcia (COA 27,091) 12/16/08NO. 31,079 Grassie v. Roswell

Hospital (COA 28,050) 12/16/08NO. 30,851 Rodriguez v. Jaramillo (12-501) 12/17/08NO. 31,119 State v. Pieri (COA 27,016) 12/29/08NO. 30,953 State v. Santiago (COA 26,859) 1/12/09NO. 30,715 State v. Garza (COA 27,731) 1/12/09NO. 31,208 Pielhau v. RLI Insurance (COA 27,686) 1/13/09NO. 31,013 Truong v. Allstate

Insurance Company (COA 26,329) 1/13/09NO. 31,010 State v. Trossman (COA 26,576) 1/14/09NO. 31,202 State v. Chavez (COA 26,563) 1/30/09NO. 31,047 State v. Villalobos (COA 27,262) 1/30/09NO. 31,234 Chapman v. Varela

(COA 27,069/27,164) 2/9/09NO. 31,329 Kirby v. Guardian Life (COA 27,624) 2/9/09

NO. 30,956 Davis v. Devon (COA 28,147/28,154) 2/9/09NO. 30,957 Ideal v. BP America (COA 28,148/28,153) 2/9/09NO. 30,958 Smith v.

Conocophillips (COA 28,151/28,152) 2/9/09NO. 31,263 Garcia v. Gutierrez (COA 26,484) 2/10/09NO. 31.300 Waters-Haskins v.

NM Human Services Dept. (COA 26,891) 2/10/09NO. 31,104 State v. Julian (COA 26,583) 2/11/09NO. 30,909 State v. Willie (COA 26,116) 2/11/09NO. 31,174 State v. Williamson (COA 27,193) 2/11/09NO. 31,015 State v. Demongey (COA 26,543) 2/25/09NO. 30,575 State v. Zador (COA 27,412) 2/25/09NO. 31,267 Flores v. McKay Oil (COA 27,360) 3/9/09NO. 31,192 Reule Sun Corporation v.

Valles (on rehearing) (COA 27,254) 3/9/09NO. 31,258 Marchstadt v. Lockheed (COA 27,222) 3/11/09NO. 31,143 NM Dental Health v.

Del Valle (COA 28,459) 3/11/09NO. 31,153 State v. Wyman (COA 28,237) 3/25/09NO. 31,293 Armendariz v. Wasser (COA 28,285) 3/30/09

petition For Writ oF certiorari denied:

NO. 31,518 State v. Dreikosen (COA 28,637) 1/29/09NO. 31,493 State v. Hart (COA 28,535) 1/30/09NO. 31,492 State v. Miller (COA 28,721) 1/30/09NO. 31,488 State v. Villegas (COA 27,993) 1/30/09NO. 31,487 State v. Torrez (COA 28,783) 1/30/09NO.31,485 Statev.Mayfield (COA28,727) 1/30/09NO. 31,484 State v. Miller (COA 28,454) 1/30/09NO. 31,483 State v. Vance (COA 27,048) 1/30/09NO. 31,481 State v. Padilla (COA 28,572) 1/30/09NO. 31,479 State v. Martinez (COA 28,190) 1/30/09NO. 31,478 State v. Quintana (COA 28,633) 1/30/09NO. 31,434 Encinias v. Valdez (COA 28,563) 1/30/09NO. 31,514 Alvarez v. Janecka (12-501) 1/30/09NO. 31,414 Wieland v. Cuelar (12-501) 1/30/09NO. 31,459 Lewis v. NM Dept of Aging (12-501) 1/30/09NO. 31,503 State v. Arviso (COA 27,623) 2/2/09NO. 31,502 Wakeland v. Plus Group (COA 28,687) 2/2/09NO. 31,501 State v. William P. (COA 27,970) 2/2/09NO. 31,499 State v. Seay (COA 28,516) 2/2/09NO. 31,498 State v. Cardenas (COA 28,676) 2/2/09NO. 31,497 State v. Manuelito (COA 28,685) 2/2/09NO. 31,496 State v. Natalie W. (COA 28,649) 2/2/09

http://www.supremecourt.nm.org


Gina M. Maestas, Chief Clerk New Mexico Court of Appeals PO Box 2008 • Santa Fé, NM 87504-2008 • (505) 827-4925

effeCTive January 30, 2009

opinions

as updated By the clerk oF the neW Mexico court oF appeals

Slip Opinions for Published Opinions may be read on the Court’s Web site:http://coa.nmcourts.com/documents/index.htm

puBlished opinions

Date Opinions FiledNo. 27022 10th Jud Dist Quay CR-05-63, STATE v J GUTHRIE (reverse and remand) 1/26/2009No.28813 11thJudDistSanJuanCR-08-582,CR-08-584,STATEvJYAZZIE(affirm) 1/30/2009

unpuBlished opinions

No.27796 11thJudDistSanJuanCR-04-1294,CR-05-179,STATEvDHADLEY(affirm) 1/26/2009No.28701 2ndJudDistBernalilloCV-07-8720,EMAYFIELDvBTINKER(affirm) 1/26/2009No.28979 13thJudDistSandovalLR-08-23,CITYOFRIORANCHOvKRYTTER(affirm) 1/26/2009No. 27472 12th Jud Dist Otero CR-05-616, STATE v K AKERS (reverse and remand) 1/27/2009No.28406 12thJudDistLincolnCR-04-75,STATEvGCAMACHO(affirm) 1/27/2009No.28759 2ndJudDistBernalilloLR-07-203,STATEvJMONTOYA(affirm) 1/27/2009No. 28916 5th Jud Dist Lea CV-08-657, IN THE MATTER OF C PRIMERO (dismiss) 1/27/2009No. 28925 2nd Jud Dist Bernalillo CR-00-2919, CR-99-2281, CR-99-34, STATE v B TODD (reverse) 1/27/2009No. 28957 9th Jud Dist Curry CR-08-97, STATE v R BURGHARDT (dismiss) 1/27/2009No.29053 1stJudDistRioArribaJQ-07-18,CYFDvEM(affirm) 1/27/2009No.28688 2ndJudDistBernalilloCR-00-1334,STATEvCLAMBERT(affirm) 1/28/2009No.28692 12thJudDistOteroCR-05-194,STATEvGCORDOVA(affirm) 1/28/2009No.27533 1stJudDistSantaFeCV-06-1356,ALLSTATEvBDARLEY(affirm) 1/29/2009No.28374 3rdJudDistDonaAnaCR-05-861,STATEvDHOFFMAN(affirm) 1/30/2009No.28806 8thJudDistTaosCV-02-102,R-TLODGEvDWEBER(affirm) 1/30/2009No.28818 4thJudDistSanMiguelCR-04-66,STATEvCCARCAMO(affirm) 1/30/2009No. 28959 13th Jud Dist Sandoval CV-06-1026, PSC OF NM v RANCHO VISTA (dismiss) 1/30/2009No.28990 11thJudDistSanJuanCR-08-412,STATEvCCHAVARRIA(affirm) 1/30/2009

http://coa.nmcourts.com/documents/index.htm


advance opinions www.supremecourt.nm.orgFroM the neW Mexico supreMe court and court oF appeals

Certiorari Denied, No. 31,377, November 20, 2008From the New Mexico Court of Appeals

Opinion Number: 2009-NMCA-004Topic Index

Government: Public Lands and State EngineerNatural Resources: Natural Resources-Water Law

STATE OF NEW MEXICO ex rel. STATE ENGINEER,Plaintiff-Appellee,

andUNITED STATES OF AMERICA, JICARILLA APACHE NATION, NAVAJO NATION, UTE MOUNTAIN UTE TRIBE,

SAN JUAN WATER COMMISSION, and BHP NAVAJO COAL COMPANY,Defendants/Intervenors-Appellees,

versusCOMMISSIONER OF PUBLIC LANDS FOR THE STATE OF NEW MEXICO,

Defendant-Appellant.No. 27,654 (filed: September 24, 2008)

APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTYROzIER E. SANCHEz, District Judge Pro Tempore

GARY K. KINGAttorney General

DL SANDERSChief Counsel

TRACY L. HOFMANNSpecial Assistant Attorney General

Santa Fe, New Mexicofor Appellee

RONALD J. TENPASAssistant Attorney General

DAVID W. GEHLERTMARK R. HAAG

UNITED STATES DEPARTMENT OF JUSTICE, ENVIRONMENT

& NATURAL RESOURCES DIVISIONWashington, D.C.

for Appellee United States of America

SHENAN R. ATCITTYHOLLAND AND KNIGHT

Albuquerque, New Mexicofor Appellee

Jicarilla Apache Nation

DANIEL H. ISRAELBoulder, Colorado

for Appellee Ute Mountain Ute Tribe

STANLEY M. POLLACKBIDTAH BECKERNAVAJO NATION

DEPARTMENT OF JUSTICEWindow Rock, Arizona

for Appellee Navajo Nation

JOLENE L. MCCALEBELIzABETH NEWLIN TAYLOR

TAYLOR & MCCALEB, P.A.Corrales, New Mexico

for Appellee San Juan Water Commission

MARIA O’BRIENWALTER E. STERN

MODRALL, SPERLING, ROEHL, HARRIS & SISK, P.A.

Albuquerque, New Mexicofor Appellee

BHP Navajo Coal Company

ROBERT A. STRANAHAN, IVGeneral Counsel

STEPHEN G. HUGHESAssociate CounselJOHN L. SULLIVANAssociate Counsel

NEW MEXICO STATE LAND OFFICESanta Fe, New Mexico

for Appellant

JAMES M. NOBLERYLEY CARLOCK & APPLEWHITE

Denver, Coloradofor Amicus Curiae

Freeport-McMoRan Corporation

TANYA TRUJILLOCHRISTOPHER D. SHAW

Santa Fe, New Mexicofor Amicus Curiae

N.M. Interstate Stream Commission

J.E. GALLEGOSMICHAEL J. CONDON

GALLEGOS LAW FIRM, P.C.Santa Fe, New Mexico

TERRY GODDARDAttorney GeneralPATRICK B. SIGL

Assistant Attorney GeneralPhoenix, Arizona

for Amicus Curiae State of Arizona

http://www.supremecourt.nm.org


opinion

JaMes J. Wechsler, Judge

{1} This appeal arises from a district court subfileproceedinginthecourseofagen-eral adjudication of water rights in the San Juan River stream system. At issue is the applicability of the federal reserved water rights doctrine to state lands that the federal government granted and conveyed to New Mexico in trust for the purpose of support-ing New Mexican schools. As the manager and acting trustee for New Mexico’s trust lands, the Commissioner of Public Lands for the State of New Mexico (the Commis-sioner) asserted a claim in the underlying adjudication for federal reserved water rights. The Commissioner argued that by legislativelydesignatingspecificsectionsof land to be used for the support of New Mexican schools and conveying them in trust to New Mexico, the United States Congress also impliedly intended to reserve and convey water rights in those lands. The State Engineer of the State of New Mexico (the State Engineer) and several other interested parties opposed the Com-missioner’s claim. Ultimately, the district court granted summary judgment in favor of the parties opposing the Commissioner. Forthereasonsthatfollow,weaffirmthedistrict court’s decision and hold that the federal reserved water rights doctrine does not apply in this case.HISTORICAL BACKGROUND{2} Since 1802, the United States Con-gress has passed enabling acts that have granted federal lands to each new “public-land” state admitted to the Union for the purpose of supporting its schools. Andrus v. Utah, 446 U.S. 500, 506 (1980). Unlike the original thirteen states, many newly created states, including New Mexico, encompassed vast tracts of federal land that were immune from taxation. Id. at 522 (Powell, J., dissenting). In order to put those new states on equal footing with the original thirteen states in generating rev-enue for the public good, Congress granted them“afixedproportionofthelandswithin[their] borders for the support of public education” in exchange for a “pledge not to tax” the granted lands. Id. at 523. Fol-lowing approval of the federal survey, “[t]itle to the sections vested in the [s]tate.” Id. Thereafter, the state became subject to “a binding and perpetual obligation to use the granted lands for the support of public education,” and “[a]ll revenue from the sale or lease of the school grants was impressed

with a trust in favor of the public schools.” Id. at 523-24.{3} Congressfirstpromisedsomeof theschool trust lands at issue in this case in the Organic Act of 1850. See ch. 49, § 15, 9 Stat. 446, 452 (1850). Several decades later, Congress enacted the Ferguson Act of 1898, ch. 489, § 1, 30 Stat. 484, 484 (1898), which granted to the Territory of New Mexico the lands promised in the Organic Act, along with some additional lands. Finally, Congress conveyed the school trust lands at issue in this case to the State of New Mexico in the Enabling Act of 1910, ch. 310, §§ 1, 10, 36 Stat. 557, 557-58, 563 (1910), which authorized the establishment of the State. The Enabling Act included additional lands and trans-ferred to the State the lands that Congress had previously granted to the Territory in the Ferguson Act. See Enabling Act §§ 6-10, 36 Stat. at 561-65. The Enabling Act alsoimposedspecifictrustobligationsuponthe State with respect to its management of the lands, including detailed limitations on the State’s use of the proceeds from the sale, rental, and use of them. See id. § 10, 36 Stat. at 563-64. In this case, the Com-missioner relies on these statutes in support of his claim to federal reserved water rights in New Mexico’s school trust lands, and we will discuss each statute in greater detail in our analysis of the merits of the Commis-sioner’s claim. PROCEDURAL BACKGROUND{4} On March 13, 1975, the State En-gineer commenced the general stream adjudicationatissueinthiscasebyfilinga complaint in district court. Roughly nineteen years later, on August 13, 2004, the Commissioner became involved in theadjudicationbyfilinga“Declarationof State of New Mexico Trust Reserved Water Rights” (Declaration). The Com-missioner’s Declaration described the basis upon which he anticipated claiming federal reserved water rights as part of the adjudication. In doing so, the Com-missioner claimed, under federal law, the state trust’s entitlement to reserved surface and groundwater rights for approximately 281,155 acres of school trust land within the San Juan Groundwater Basin. After thedistrict court set abriefing scheduleregarding the Commissioner’s Declara-tion, the Commissioner attempted to either withdraw or dismiss his Declaration with-out prejudice by invoking Rule 1-041(A)(1)(a) NMRA. The district court refused to allow the Commissioner to withdraw or dismiss his Declaration, and this Court

subsequently denied the Commissioner’s petition for an interlocutory appeal of that ruling.{5} On June 15, 2006, the State Engineer petitioned for the commencement of a subfileproceedingontheCommissioner’sDeclaration.Inthesubfileproceeding,theCommissioner moved for declaratory relief with respect to his argument that there ex-isted federal reserved water rights in New Mexico’s school trust lands, and the State Engineer moved for summary judgment that no such rights existed in those lands. Shortly thereafter, the United States, along with several other interested parties, inter-vened in the proceeding.{6} On February 20, 2007, the district court issued an order denying the Commis-sioner’s request for declaratory relief and granting summary judgment in favor of the State Engineer. In doing so, the district court concluded that the federal reserved water rights doctrine did not apply to the school trust lands at issue in this case and set forth several reasons why the Com-missioner’s claim failed. First, the district court found that the “specific purpose”argued by the Commissioner as the basis for Congress’s decision to convey the trust lands did not, under the applicable federal case law, require a conclusion that it also impliedly reservedwater rights. Specifi-cally, the district court reasoned that the application of water to the land was not a direct purpose of granting the land. See, e.g., United States v. New Mexico, 438 U.S. 696, 716-17 (1978) (explaining that when a potential use of water is not “a direct purpose of reserving the land,” there can be nofinding of an implied reservationof water rights). Second, the district court noted that unlike the federal reservations that have been held to include federal reserved water rights, the United States did not retain any ownership interest in the school trust lands. See, e.g., Cappaert v. United States, 426 U.S. 128, 131-32, 138 (1976) (concluding that Congress impliedly reserved water rights in land owned by the United States that was “set aside as a national monument”). Finally, the district court concluded that congressional intent to reserve water rights in the school trust lands could not be inferred because “Congress made no declaration in [the legislation upon which the Commissioner relies] that the New Mexico Education System, without water, would be entirely defeated.” See New Mexico, 438 U.S. at 700 (“Each time this Court has applied the ‘implied-reservation-of-water doctrine,’ it


has carefully examined both the asserted water right and the specificpurposes forwhich the land was reserved, and concluded that without the water the purposes of the reservation would be entirely defeated.”). Basedonthesefindings,thedistrictcourtconcluded that the Commissioner failed to meet his burden of showing that (1) Congress intended to withdraw and reserve federal lands “for New Mexico Trust Lands as a federal purpose” and (2) “Congress intended to reserve, by implication, ap-purtenant waters to accomplish educational purposes in New Mexico Trust Lands.” The Commissioner appeals from that ruling.WITHDRAWAL OR DISMISSAL UNDER RULE 1-041{7} WefirstaddresstheCommissioner’scontention that the district court erred in re-fusing to allow him to withdraw or dismiss his Declaration. The Commissioner argues that he had an “unconditional” right to withdraw or dismiss his Declaration with-out prejudice under either Rule 1-041(A)(1)(a) or Rule 1-041(C). In response, the par-ties opposing the Commissioner argue that (1) Rule 1-041 does not apply to the Com-missioner’s Declaration; (2) even if Rule 1-041 were applicable, the Commissioner would not have an unconditional right to withdraw or dismiss his Declaration; and (3) the district court properly refused to allow the Commissioner to withdraw or dismiss his Declaration. We review de novo the issue of whether the Commissioner had an unconditional right to voluntarily with-draw or dismiss his Declaration without prejudice under Rule 1-041. See Becenti v. Becenti, 2004-NMCA-091, ¶ 6, 136 N.M. 124, 94 P.3d 867 (“[W]hen called upon to apply and interpret rules of civil procedure, we review these questions de novo.”).{8} Wefirst observe that, by its terms,Rule 1-041(A)(1)(a) does not apply to the Commissioner’s Declaration. Rule 1-041(A)(1)(a) provides that “an action may be dismissed by the plaintiff without orderofthecourt...byfilinganoticeofdismissal at any time before service by the adverse party of an answer or other respon-sive pleading.” (Emphasis added.) In this case, the Commissioner is not a “plaintiff” in the underlying adjudication, which is a special statutory proceeding commenced by the State Engineer. See NMSA 1978, § 72-4-15 (1907) (stating that it is, in most instances, the responsibility of the attorney general, at the request of the state engineer, to file suit to determine the respective rights of individual parties to appropriate water from a stream system). Additionally,

the Commissioner’s Declaration does not constitute an “action” that can be volun-tarily dismissed. We view the Declaration as a single claim within the overarching water adjudication action brought by the State Engineer in 1975, and as such, Rule 1-041(A) does not permit a voluntary dis-missal of the Declaration. See Gates v. N.M. Taxation & Revenue Dep’t, 2008-NMCA-023, ¶ 12, 143 N.M. 446, 176 P.3d 1178 (explaining that Rule 1-041(A) does not permit a plaintiff to dismiss less than all of the claims that make up an action). Finally, no responsive pleading was required, or even allowed, in this case with respect to the Commissioner’s Declaration. Compare Rule 1-012(A)-(B) NMRA (explaining the procedure that a defendant in a civil action isrequiredtofollowinfilingaresponsivepleading), with NMSA 1978, § 72-4-17 (1965) (explaining the procedure that the district court must follow in determining the water rights of individual claimants with respect to a stream system).{9} Alternatively to his purported right to voluntarily dismiss his Declaration under Rule 1-041(A), the Commissioner argues that Rule 1-041(C) governs. Rule 1-041(C) allows for the same type of voluntary dismissal described in Rule 1-041(A) for “any counterclaim, cross-claim or third-party claim.” However, we agree with the State Engineer that the Commissioner’s Declaration does not fall under this rule. We simply cannot characterize his Declaration as either a counterclaim, a cross-claim, or a third-party claim. See Rule 1-013(A)-(B) NMRA (explaining that a counterclaim is a claim that a defendant in a civil action has against a plaintiff in the same action); Rule 1-013(G) (explaining that a cross-claim is a claim that one party in a civil action has against a co-party in the same action); Rule 1-014(A) NMRA (explaining that a defen-dant in a civil action may make a third-party claim against “a person not a party to the action who is or may be liable to him for all or part of the plaintiff’s claim against him”).{10} Furthermore, even if we were to conclude, contrary to our legal hold-ing above, that the Commissioner was a plaintiff and that his Declaration was an action, counterclaim, cross-claim, or third-party claim subject to Rule 1-041, our result would not change. The purpose of Rule 1-041(A) “is to preserve a plaintiff’s right to dismiss an action unilaterally, but to limit that right to an early stage of the litigation.” 8 James W. Moore, Moore’s Federal Practice § 41.33[1], at 41-45 (3d

ed. 2007) (emphasis added). “The rule is thusintendedtofixthepointatwhichtheresources of the court and the defendant are so committed that dismissal without preclusive consequences can no longer be had as of right.” Id. § 41.33[1], at 41-45 to -46 (internal quotation marks and citation omitted). The stream adjudication at issue in this case is over thirty years old, the notice of withdrawal of the Declaration wasfilednearlyayearafterthefilingoftheDeclaration, and a delay in the litigation of the substance of the Commissioner’s claim would cause even further unnecessary de-lay, waste judicial resources, and trigger great uncertainty regarding the individual claimants’ respective water rights.{11} Accordingly, we agree with the district court that Rule 1-041 was not a procedural vehicle that was available to the Commis-sioner in this case. We therefore proceed to address the merits of the federal reserved water rights claim that the Commissioner made in his Declaration. SUMMARY JUDGMENTA. Standard of Review{12} “Summary judgment is appropri-ate where there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law.” Self v. United Parcel Serv., Inc., 1998-NMSC-046, ¶ 6, 126 N.M. 396, 970 P.2d 582. In reviewing whether a genuine issue of material fact exists, “we view the facts in the light most favorable to the party opposing summary judgment.” Gormley v. Coca-Cola Enters., 2005-NMSC-003, ¶ 8, 137 N.M. 192, 109 P.3d 280 (internal quotation marks and citation omitted). Ultimately, we review de novo the legal question of whether a party is entitled to summary judgment as a matter of law. Id.{13} The Commissioner argues that the question of implied congressional intent to create federal reserved water rights presents afactualissuetobedecidedbyafactfinderand that the district court therefore erred in concluding that no such rights exist in the school trust lands as a matter of law. However, whether a particular act of Con-gress establishes a federal reservation with attendant implied water rights is a question of legislative intent that requires an inter-pretation of the relevant acts. See Cappaert, 426 U.S. at 139 (“In determining whether there is a federally reserved water right implicit in a federal reservation of public land, the issue is whether the Government intended to reserve unappropriated and thus available water.”). Such matters are tradi-tionally legal questions that may properly


be resolved on summary judgment. See Union Pac. Land Res. Corp. v. Moench Inv. Co., 696 F.2d 88, 93 n.5 (10th Cir. 1982) (“Questions of statutory construc-tion and legislative history traditionally present legal questions properly resolved by summary judgment.”). Other aspects of federal reserved water rights, beyond the mere existence of such rights in a given piece of land, may involve questions of fact that should not be decided on summary judgment. For example, a determination of the quantity of water reserved (i.e., the minimum amount necessary to accomplish the purpose of the reservation) would likely involve factual issues that would require thefactfindertoconsiderexperttestimony.See, e.g., United States v. Washington, 375 F. Supp. 2d 1050, 1066 (W.D. Wash. 2005) (noting that the quantity of water impliedly reserved in an Indian reservation under a treaty was “a factual issue to be determined at trial”). However, the only issue in the present case involves whether certain acts of Congress can be interpreted to impliedly create any federal reserved water rights in New Mexico’s school trust lands. Any inquiry relating to the nature and quantity of the rights that the Commissioner claims is not before this Court. Thus, we are pre-sented with questions of law that the district court was permitted to decide on summary judgment and that we must now review de novo.B. The Federal Reserved Water

Rights Doctrine and Its Relation-ship to State Water Law

{14} The federal reserved water rights doctrine is a judicially created doctrine that had its genesis in Winters v. United States, 207 U.S. 564 (1908). In Winters, the United States Supreme Court recog-nizedandaffirmedthepowerofthefederalgovernment, under certain circumstances, to impliedly reserve water and exempt it from appropriation under state law. Id. at 577. In doing so, the Court concluded that when Congress established the Fort Belknap Indian Reservation in Montana, it also impliedly reserved with it the right to the amount of water necessary to achieve the reservation’s purpose. Id. at 565, 577. Subsequent United States Supreme Court decisions extended the doctrine to other, non-Indian federal enclaves. See, e.g., Cappaert, 426U.S. at 138 (finding thatthe reservation of a national monument by executive order also included federal re-served water rights); Arizona v. California, 373 U.S. 546, 601 (1963) (concluding that “the principle underlying the reservation of

water rights for Indian Reservations” could be extended to national recreation areas and national forests), disavowed on other grounds by California v. United States, 438 U.S. 645, 674 (1978). As elaborated on anddefinedinthesedecisions,thedoctrinecurrently requires a claimant to establish two elements in order to demonstrate the existence of a federal reserved water right: (1) that the federal government withdrew the land from the public domain and re-served it for a federal purpose and (2) that a certain amount of water is necessary to accomplish the purpose for reserving the land. See Cappaert, 426 U.S. at 138.{15} Overall, the doctrine of federal reserved water rights represents a limited exception to the general rule that individual states govern water rights within their re-spective borders. See New Mexico, 438 U.S. at 702 (“Where Congress has expressly addressed the question of whether federal entities must abide by state water law, it has almost invariably deferred to the state law.”). Generally, water rights must be obtained by appropriation under state water law, even if those rights are developed in land owned by the federal government. See Cal. Or. Power Co. v. Beaver Port-land Cement Co., 295 U.S. 142, 163-64 (1935) (stating that “following the [Desert Land Act] of 1877, if not before, all non-navigable waters then a part of the public domain became publici juris, subject to the plenary control of the designated states, including those since created out of the territories named, with the right in each to determine for itself to what extent the rule of appropriation or the common-law rule in respect of riparian rights should obtain”). In New Mexico, water law is governed by the doctrine of prior appropriation. Walker v. United States, 2007-NMSC-038, ¶ 21, 142 N.M. 45, 162 P.3d 882. Under that doctrine, “water rights are both established and exercised by beneficial use, which forms the basis, the measure and the limit of the right to use of the water.” Id. ¶ 22 (internal quotation marks and citation omitted). The appropriation of water for beneficialuseestablishestheprioritydateof a water right in relation to other water rights, and the full right of an earlier ap-propriator will be protected, to the extent of that appropriator’s use, against a later appropriator. See N.M. Const. art. XVI, § 2 (“Priority of appropriation shall give the better right.”). However, because the prior appropriation doctrine rewards the use of water—and use determines both the priority date and quantity of water to which

one holds a right under the doctrine—state water rights can be forfeited by non-use. State ex rel. Reynolds v. S. Springs Co., 80 N.M. 144, 148, 452 P.2d 478, 482 (1969) (“[U]nder the prior appropriation doctrine of water rights applicable in New Mexico, nonuse involves forfeiture.” (internal quo-tation marks and citation omitted)).{16} Similar to water rights developed under our state law, federal reserved water rights have the attributes of priority and quantity, allowing such rights to be admin-istered within the hierarchy of state water rights. See Navajo Dev. Co. v. Sanderson, 655 P.2d 1374, 1379-80 (Colo. 1982) (en banc). However, the determination of those attributes for a federal reserved water right follows a far different logic from that of a state water right. See id. at 1379 (“Federal reserved water rights must be understood as a doctrine which places a federal appropria-tor within the state appropriation scheme by operation of federal law.”). Unlike a state water right, the priority of a federal reserved water right is not established by appropriation for beneficial use; rather,such a right is determined by the withdraw-al and reservation of the applicable land for a federal purpose. See United States v. Jesse, 744 P.2d 491, 493-94 (Colo. 1987) (en banc). A federal reserved water right, therefore, has a priority date corresponding to the date of the statute, executive order, or treaty creating the reservation, regardless of whether the water at issue has ever been put to actual use. See id. at 494. Similarly, the quantity of a federal reserved water right is not determined by the amount of water put tobeneficialuse;rather,itisdeterminedbythe amount of water necessary to carry out the primary purpose of the reservation. Id. Further, as is apparent from the fact that the priority date of a federal reserved water right is unconnected to the use of water, such a right cannot be lost by non-use, un-like a water right secured under state law. Id.{17} Thus, as the Colorado Supreme Court observed in Jesse:

In contrast to the doctrine of prior appropriation, which . . . recog-nizes only the right to divert a quantified amount ofwater at aspecific location for a specific purpose, the federal doctrine of reserved water rights vests the United States with a dormant and indefiniterightthatmaynotcoin-cide with water uses sanctioned by state law.

Id. (citations omitted). Such dormant and


indefinite rights canbeveryproblematicwhen it comes to adjudicating and admin-istering water rights in an arid state, such as New Mexico. Many stream systems in such states are already fully appropriated, and a determination that federal reserved water rights exist often requires “a gallon-for-gallon reduction in the amount of water available for water-needy state and private appropriators.” New Mexico, 438 U.S. at 705. Further, as demonstrated by this case, claims to federal reserved water rights are potentially very large with very early priority dates and can therefore be highly disruptive to rights existing under state law. See Jesse, 744 P.2d at 494 (“Because the priority date of the [federal] reserved right relates back to the date of the reservation, reserved water rights threaten existing ap-propriators with divestment of their rights without compensation.”). Accordingly, in recognition of the predominance of state law in the area of water rights and the potentially substantial and detrimental impact on state rights in fully appropriated stream systems, courts must construe the doctrine of federal reserved water rights narrowly. See id. Our analysis of the Com-missioner’s claim to federal reserved water rights in New Mexico’s school trust lands therefore follows this principle of narrow construction.C. Withdrawal and Reservation{18} “In determining whether there is a federally reserved water right implicit in a federal reservation of public land, the threshold question necessarily is whether the government has in fact withdrawn the land from the public domain and reserved it for a public purpose.” Sierra Club v. Block, 622 F. Supp. 842, 853 (D. Colo. 1985). Despite their facial similarities, the terms “withdrawal” and “reservation” have distinct meanings when used in the context of public land law. Id. at 854-55. As the Tenth Circuit Court of Appeals recently explained,

A withdrawal makes land unavail-able for certain kinds of private appropriation . . . . It temporarily suspends the operation of some or all of the public land laws, preserving the status quo while Congress or the executive decides on the ultimate disposition of the subject lands.A reservation, on the other hand, goes a step further: it not only withdraws the land from the op-eration of the public land laws,

but also dedicates the land to a particular public use.

S. Utah Wilderness Alliance v. Bureau of Land Mgmt., 425 F.3d 735, 784 (10th Cir. 2005) (citations omitted). Ultimately, the act of withdrawing and reserving land ensures that it will not be transferred out of federal ownership pursuant to homestead-ing or other land disposal statutes. See Winters v. United States, 143 F. 740, 748 (9th Cir. 1906) (“[W]hen the lands of the government have been legally appropriated or reserved for any purpose, they become severed from the public lands, and . . . no subsequent law or sale should be construed to embrace or operate upon them.”); see also Sierra Club v. Watt, 659 F.2d 203, 206 (D.C. Cir. 1981) (concluding that a claim for federal reserved rights failed because “Congress did not withdraw land from the public domain when it passed the [act in question], it merely set forth purposes, goals and authority for the use of the public domain” (internal quotation marks and cita-tion omitted) (footnote omitted)).{19} The Commissioner essentially asks us to consider the requirements of with-drawal and reservation to be formalistic criteria that are unnecessary for the creation of a federal reservation of land. According to the Commissioner, the “reserved rights doctrine focuses on the purpose of the reservation, not the mechanics.” However, this statement presupposes that a federal withdrawal and reservation of land has actually occurred. As we have explained, the question of whether a withdrawal and reservation has occurred necessarily involves mechanics. The Commissioner does not reference any case in which a court has held that federal reserved water rights existed on land that was not previously withdrawn and reserved, and we are aware of no such case. {20} In the seminal cases in which the United States Supreme Court considered the existence of implied federal reserved water rights—including New Mexico, Cap-paert, Arizona, and Winters—the Court did not focus on the threshold question of whether the relevant congressional acts, executive orders, or treaties withdrew land from the public domain and created a reservation for a federal purpose. In each of those cases, it was undisputed that the federal government had done so. See, e.g., New Mexico, 438 U.S. at 707 (national forests); Cappaert, 426 U.S. at 140-41 (national monuments); Arizona, 373 U.S. at 601 (national recreation areas, national wildlife refuges, and national forests); Win-

ters, 207 U.S. at 577 (Indian reservations). Therefore, those cases are only helpful to our analysis as models of what constitutes, as opposed to what does not constitute, a withdrawal and reservation of land for a federal purpose. Our question is whether the legislation on which the Commissioner relies actually created a federal reservation of the school trust lands at issue by with-drawing and reserving them for a particular public use to further a federal purpose.{21} First, the Commissioner relies on the Organic Act of 1850, which established the boundaries of the Territory of New Mexico and provided for the establishment of a territorial government. Sections 2-5, 9 Stat. at 447-49. In accordance with the federal government’s policy of granting public domain land to new “public-land” states in furtherance of supporting public education, see Andrus, 446 U.S. at 506, the Organic Act provided as follows:

[W]hen the lands in said Terri-tory shall be surveyed under the direction of the government of the United States, preparatory to bringing the same into market, sections numbered sixteen and thirty-six in each township in said Territory shall be, and the same are hereby, reserved for the purpose of being applied to schools in said Territory, and in the States and Territories hereafter to be erected out of the same.

Section 15, 9 Stat. at 452. In making his argument, the Commissioner seizes on the term “reserved” in this provision to sup-porthispositionthattheActsatisfiedthethreshold requirement of creating a reser-vation. However, the mere use of the term “reserved” in a congressional act does not necessarily create a federal withdrawal and reservation of land. See S. Utah Wilderness Alliance, 425 F.3d at 785 (“[J]ust because a withdrawal uses the term ‘reserved’ does not mean that it reserves land ‘for public uses.’”). As the United States Supreme Court has explained, when Congress granted school trust lands to the Western states, it neither withdrew nor reserved those lands. In fact, “[p]rior to survey, those sections [were] a part of the public lands of the United States and [could have been] disposed of by the Government in any manner and for any purpose consistent with applicable federal statutes.” United States v. Wyoming, 331 U.S. 440, 443 (1947); see also United States v. Morrison, 240 U.S. 192, 198-99, 210 (1916) (concluding that language similar to the Organic Act in the


congressional act creating the Territory of Oregon meant that title did not immediately vest in Oregon and that “Congress was at liberty to dispose of the land” until “the sectionsweredefinedbysurvey”);Dallas v. Swigart, 24 N.M. 1, 6, 172 P. 416, 417 (1918) (“[T]he reservation from entry un-der the general land laws shall come into operation only when the [school trust] lands aresurveyedinthefield,whereupontheyare withdrawn from entry.”). The Organic Act, like the statute at issue in Wyoming, made conveyance of the designated lands subject to the completion of the officialsurvey, which, as the Commissioner ac-knowledges, did not occur until many years later. Until completion of the survey, the trust lands remained in the public domain and were subject to disposal by the federal government. Thus, the Organic Act did not contemplate a withdrawal or reservation ofthelandsthatitidentifiedforpurposesof now asserting a federal reserved water rights claim. See S. Utah Wilderness Al-liance, 425 F.3d at 784 (explaining that withdrawal for the purpose of asserting a federal implied water right requires a temporary suspension of “the operation of some or all of the public land laws”).{22} Second, the Commissioner relies on the Ferguson Act of 1898, which was essentially the realization of Congress’s promise in the Organic Act to grant the Territory of New Mexico sections sixteen and thirty-six of each township in the Ter-ritory. Ferguson Act § 1, 30 Stat. at 484. Of importance in this case, Section 1 of the FergusonAct, passed roughlyfifty yearsafter the Organic Act, indicates that at least some of the lands promised in the Organic Act had either been disposed of by the federalgovernmentorofficiallyreservedby the federal government; therefore, the Act promised the Territory of New Mexico indemnity lands to compensate for those lands that were no longer available in sec-tions sixteen and thirty-six. Ferguson Act § 1, 30 Stat. at 484. Section 1 states:

[S]ections numbered sixteen and thirty-six in every township of the Territory of New Mexico, and where such sections, or any parts thereof, are mineral or have been sold or otherwise disposed of by or under the authority of any Act of Congress, other non-mineral lands equivalent thereto . . . in lieu of which the same is taken, are hereby granted to said Terri-tory for the support of common schools, such indemnity lands to

be selected within said Territory in such manner as is hereinafter provided: Provided, That the six-teenth, and thirty-sixth sections embraced in permanent reserva-tions for national purposes shall not at any time be subject to the grants of this Act, nor shall any lands embraced in Indian, mili-tary, or other reservations of any character be subject to the grants of this Act[.]

Id. We infer from this promise of differ-ent lands to compensate for Congress’s disposal or reservation of lands within the promised sections that Congress was well aware of its ability to reserve lands for a federal purpose, as well as the technical requirements for doing so, and that it chose not to create a federal reservation with re-spect to New Mexico’s school trust lands.{23} Finally, the Commissioner relies on the Enabling Act of 1910, which ushered the Territory of New Mexico into statehood. Section 1, 36 Stat. at 557-58. Among other things, the Enabling Act recognized that sections sixteen and thirty-six had already been granted to the Territory and addition-ally granted “sections two and thirty-two in every township . . . for the support of common schools.” Id. § 6, 36 Stat. at 561. As it did in the Ferguson Act, Congress guaranteed in the Enabling Act indemnity lands to be granted when portions of the newly designated sections were or became unavailable because they

[were] mineral, or [had] been sold, reserved, or otherwise appropri-ated or reserved by or under the authority of any Act of Congress, or [were] wanting or fractional in quantity, or where settlement thereon with a view to preemption or homestead, or improvement thereof with a view to desert-land entry has been made heretofore or hereafter, and before the survey thereofinthefield.

Id. Again, the language of the Enabling Act did not sufficientlywithdrawor reservelands to create implied federal reserved wa-ter rights; rather, it simply conveyed lands out of federal ownership to the State of New Mexico. Similar to the Ferguson Act, by providing for indemnity lands that were meant to replace lands in the original grant that were, in fact, disposed of or reserved for a federal purpose, the Enabling Act displays Congress’s cognizance of the dif-ference between a reservation and a grant. Thus, like the Ferguson Act, we cannot read

theEnablingActtohavesufficientlywith-drawn and reserved the school trust lands to reach a conclusion that it created a federal reservation in which federal reserved water rights can be inferred.{24} In summary, none of the congres-sional acts upon which the Commissioner relies either adequately withdrew the school trust lands from the public domain or re-served them for a particular public purpose. See S. Utah Wilderness Alliance, 425 F.3d at 784. Accordingly, the Commissioner has failed to prove the threshold requirements of demonstrating the existence of implied federal reserved water rights.D. Federal Purpose{25} Even if we were to conclude that the congressional acts upon which the Commissioner relies adequately withdrew and reserved the state trust lands at issue in this case, our result would be the same. To establish that an implied federal water right exists in a certain tract of land, one must, in addition to proving that the land was withdrawn and reserved, show that the reservation was for a federal purpose. See Cappaert, 426 U.S. at 138. Although we do not deny that the support of common schools is a matter of national interest, we cannot conclude that it is also a federal pur-pose in the context of the implied federal water rights doctrine. As the term “federal purpose” has been construed in non-Indian federal reserved water rights cases, continu-ing federal ownership of the reserved lands appears to be a prerequisite to a determina-tion that such rights exist. See, e.g., New Mexico, 438 U.S. at 707 & n.14; Cappaert, 426 U.S. at 140-42; Arizona, 373 U.S. at 601.{26} The Commissioner argues that the oversight powers retained by the fed-eral government to ensure that the trust is administered properly, along with the federal government’s authority to enforce the trust’s terms, represent the equivalent of federal ownership for purposes of establish-ing implied reserved water rights. Although we agree with the Commissioner that the Enabling Act imposes strict trust obliga-tions on the State, see § 10, 36 Stat. at 564-65, we do not agree that such obligations constitute a federal purpose in conjunction with the school trust lands. We reiterate that the federal reserved water rights doctrine must be construed narrowly, and we are aware of no authority that supports the proposition that by retaining oversight or enforcement power over a state’s disposi-tion of its trust lands, the federal govern-ment also retains the title to the land that


is necessary to create a federal reservation and impliedly reserve water rights.{27} We note that there is one context in which federal reserved water rights are not dependent on continuing federal own-ership, namely, Indian reservation lands allotted and conveyed in fee to individual tribal members. See, e.g., United States v. Powers, 305 U.S. 527, 532 (1939) (“[W]hen allotments of land were duly made for exclusive use and thereafter conveyed in fee [from the United States government to tribal members], the right to use some por-tion of tribal waters essential for cultivation passed to the owners.”). The Commissioner relies on Powers in asserting that federal reserved water rights passed along with the school trust lands when they were conveyed to New Mexico. However, in Powers, it was clear and uncontested that the federal government, by treaty, withdrew the land at issue from the public domain and reserved it for a federal purpose before it was allotted and conveyed to individual tribal members. See id. at 528, 532-33. Because the federal purpose under which that land was reserved required water to support the tribe’s “ex-clusive right of cultivation,” id. at 533, the Court concluded that the treaty creating the reservation also impliedly reserved water rights to adequately irrigate the land and refused to rule that those rights were extinguished simply because the land was conveyed in fee to individual landowners. See id. On the contrary, as explained above, the lands conveyed to New Mexico in the Organic Act, the Ferguson Act, and the Enabling Act were never withdrawn from the public domain and reserved for a federal purpose. As such, it necessarily follows that any attendant federal reserved water rights that the Commissioner now claims in

connection with those lands were also not impliedly reserved. Accordingly, the result reached in Powers cannot be reached in this case.E. Congressional Intent{28} In addition to arguing that Congress withdrew and reserved the school trust lands for a federal purpose, the Commis-sioner also contends that the circumstances surrounding Congress’s grant of those lands indicates its intent to also grant water rights. Specifically,theCommissionerarguesthatbecause Congress was aware of the arid nature of New Mexico’s lands when it granted the school trust lands, it must have impliedly intended to reserve water rights in order to make the lands more valuable. In response, the United States argues in its answer brief that other express acts of Congress aimed at compensating for the aridity of New Mexico’s trust lands indicate that no such implied intent existed in the congressional acts upon which the Com-missioner relies.{29} The United States argues that Con-gress demonstrated its consciousness of the aridity of New Mexico’s lands and took action to compensate for it in at least two distinct ways, neither of which involved granting water rights along with the school trust lands. First, the United States Supreme Court has recognized that Congress, in granting school trust lands to New Mexico, made the express decision to grant four sections per township, “instead of the one section per township ordinarily given in the earlier grants,” in order to compensate for the fact that the value of the lands that it was granting was comparatively little as a result of the lack of water. Lassen v. Ariz. ex rel. Ariz. Highway Dep’t, 385 U.S. 458, 463 n.7 (1967). Second, as our Supreme

Court recognized in State ex rel. Interstate Stream Commission v. Reynolds, 71 N.M. 389, 391, 378 P.2d 622, 623 (1963), the Ferguson Act granted the Territory of New Mexico 500,000 acres of land for the express purpose of establishing permanent water reservoirs for irrigation. Section 6, 30 Stat. at 485. However, we note that Congress did not expressly reference the need for irrigation of the school trust lands in its grant of those lands in the Ferguson Act. See id. § 1, 30 Stat. at 484.{30} We agree with the United States that both actions of Congress referenced above demonstrate an acknowledgment of the aridity of the school trust lands and that both can be considered measures that were implemented to compensate for the relatively low value of those lands as a re-sult of their aridity. Accordingly, we cannot agree with the Commissioner that we must infer a congressional intent to grant water rights along with the school trust lands in order to guarantee that the arid lands that were granted remained as “productive” as possible.CONCLUSION{31} The Commissioner has not estab-lished that the various congressional acts promising or conveying trust lands for the support of New Mexican schools withdrew those lands from the public domain and reserved them for a federal purpose—the necessaryprerequisitestoafindingofcon-gressional implied intent to reserve water rights.Therefore,we affirm the districtcourt’s grant of summary judgment.{32} IT IS SO ORDERED. JAMES J. WECHSLER, Judge

WE CONCUR:LYNN PICKARD, JudgeCELIA FOY CASTILLO, Judge

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Enhancing our Self-Regulated Profession


2 New Mexico Lawyer

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New Mexico Lawyer 3

The New Mexico Supreme Court has adopted new Rules of Professional Conduct for Lawyers, effective Nov. 3, 20081. The

Rules are much more than requirements necessary to maintain a law license. They provide an outline for the practice of law—how to ef-fectively represent your client, maintain a law business, and interact with your employees, other lawyers, witnesses, the courts, the public, and the profession. The concepts in the Rules are applied daily by all lawyers. The Rules foster dedication to self-regulation of the legal profession and service to the legal community.All lawyers and judges can readily appreciate a comprehensive revi-sion to the Rules of Professional Conduct. This article discusses the history behind the revisions and highlights some of more significant changes.

History of Revisions to the Rules of Professional ConductIn 1997, the American Bar Association announced its “Ethics 2000” initiative to revise the Model Rules of Professional Conduct for Lawyers. The ABA’s previous Model Rules, first promulgated in 1983, were adopted in large part by almost all state jurisdictions, in-cluding New Mexico. Since then, the interpretation and application of the Model Rules have been significantly developed by case law and ethical opinions produced by the ABA and authoritative bodies in the various jurisdictions. During much of the same time pe-riod, the American Law Institute was developing the Restatement (Third) of the Law Governing Lawyers, which it published in 2000. The goal of the Ethics 2000 initiative was to revise the Model Rules to correspond to the body of law which has developed.

The ABA completed the Ethics 2000 revisions and adopted cor-responding amendments to the Model Rules in 2002 and 2003. According to the ABA, 36 states and the District of Columbia have adopted revisions based on the new Model Rules.2

By Peter H. Pierotti

Until June 2007, New Mexico was one of only eight states yet to issue a report. The New Mexico Supreme Court Code of Professional Conduct Committee advertised recommended changes to the New Mexico Rules of Professional Conduct in the June 15, 2007, Bar Bulletin Special Issue.3 Final revisions were adopted by the New Mexico Supreme Court, effective Nov. 3, 2008.

Similarities Between the ABA and New Mexico Rules of Professional ConductThe New Mexico Supreme Court ad-opted the general format of the ABA Model Rules.4 The rules are codified in New Mexico with a different but corresponding numbering system. For example, Model Rule 1.1 corresponds to New Mexico Rule 16-101; Model Rule 1.16 corresponds to New Mexico Rule 16-116; Model Rule 8.3 corre-sponds to New Mexico Rule 16-803.

Some of the new Model Rules have already been incorporated into the New Mexico Rules. The New Mexico Supreme Court adopted Rule 16-117 regarding sale of a law practice in 2002. However, this rule differed substantially from the Model Rule, and a new revision generally tracking the Model Rule was adopted with the recent re-visions. In 2003, the New Mexico Supreme Court adopted, with some revisions, the text and commentary to Model Rules 5.5 and 8.5 regarding the multijurisdictional and unauthorized practice of law.

New RulesFive Rules adopted from the ABA Model Rules are new to New Mexico.1 The new terminology Rule 16-100 affects all rules. Some of the terms require specific actions. Note the new definition of “informed consent,” “confirmed in writing,” and “writing.” A good example of this application is found in Rule 16-107(B)(4), which allows waiver of a waiveable conflict if “each affected client gives informed consent, confirmed in writing.” Also, former Rule 16-105 requiring a contingency fee agreement to be in writing has been expanded to require that the writing be “signed by the client.”

Rule 16-118, “Duties to Prospective Client,” outlines confidentiality and disqualification issues which arise from communications with prospective clients.

Rule 16-204, “Lawyer Serving as Third-Party Neutral,” describes the duties of lawyers who serve as mediators, arbitrators, or evalua-tors who assist third parties in the resolution of disputes. Rule 16-507, “Responsibilities Regarding Law-Related Practice,” addresses services that may be performed in conjunction with and are related to the provision of legal services, but are not prohib-

of our ProfessionrulesTh

e

4 New Mexico Lawyer

ited as unauthorized practice of law when provided by non-lawyers. The new rule extends the application of the Rules of Professional Conduct to a lawyer’s “law related services” if the law-related ser-vices are provided “(1) by the lawyer in circumstances that are not distinct from the lawyer’s provision of legal services to clients; or (2) in other circumstances by an entity controlled by the lawyer indi-vidually or with others if the lawyer fails to take reasonable measures to ensure that a person obtaining the law-related services knows that the services are not legal services and that the protections of the client-lawyer relationship do not exist.”

Rule 16-605, “Nonprofit and Court-Annexed Limited Legal-Service Programs,” provides an exception to conflict and disquali-fication rules for lawyers who provide short-term limited legal ser-vices under the auspices of a nonprofit organization or court.

ConfidentialityThe revisions to the rules regarding confidentiality represent some of the most significant changes arising from the Ethics 2000 initiative. The purpose of the revisions is to create more exceptions to lawyer-client confidentiality as necessary to allow lawyers to comply with corporate governance laws and other mandatory disclosure laws and regulations.

The federal Sarbanes-Oxley Act of 20025 was promulgated in the wake of corporate scandals to protect investors in publicly traded companies by providing governance standards and improving the accuracy and reliability of corporate disclosures made pursuant to securities laws. The act required the Securities and Exchange Commission to adopt rules establishing standards of professional conduct for lawyers who appear and practice before the commission on behalf of issuers. The SEC rules are intended to protect inves-tors and increase their confidence in public companies by ensuring that lawyers who work for those companies respond appropriately to evidence of material misconduct. The final rules became effective in 20036.

In response to the Sarbanes-Oxley Act and the SEC rules, the American Bar Association amended Model Rule of Professional Conduct 1.6 regarding client confidentiality and Rule 1.13 regarding organization as client. The amended rules were ad-opted at the ABA annual meeting on Aug. 12, 2003. The New Mexico Supreme Court has adopted both rules in their entirety.

Rule 16-106 reorganizes the con-fidentiality rule into two sections. Section A prohibits disclosure of any information relating to the representation of the client absent express or implied consent of the client. Section B permits six excep-tions to the confidentiality required in A, whether or not adverse to cli-ent interests. Four of these excep-tions are to prevent death or bodily harm, secure legal advice about rule compliance, establish a claim or de-fense to a controversy between the lawyer and the client, and to comply with other law or court order. The other two are to prevent, mitigate, or

rectify a client’s criminal acts in furtherance of which the client has used the lawyer’s services.

The former New Mexico rule was unique in stating that a lawyer should (as opposed to “may”) divulge information to prevent the client from committing a criminal act causing death or substantial bodily harm. The new rule broadens the criminal act limitation to permit disclosure in all circumstances involving death or substantial bodily harm. The former rule included an exception for financial or property-related harm which was not contained in the Model Rules before the Ethics 2000 initiative. The new rule changes New Mexico’s unique property harm rule in two important ways. First, the new rule requires disclosure of client actions “in furtherance of which the client has used the lawyer’s services.” Second, the new rule provides for disclosure of past acts as necessary to “prevent, mitigate, or rectify injury to financial interests. The former text only applied to prevent future acts.

The confidentiality exceptions in Rule 16-106 permit but do not require disclosure. This permissive nature of Rule 16-106 is deceiv-ing because other rules require disclosure in specific circumstances. For example, Rule 16-401(B) requires a lawyer to disclose a material fact when disclosure is necessary to avoid assisting in a criminal or fraudulent act by a client, unless the disclosure is prohibited by Rule 16-106. Rule 16-303(C) requires specific disclosures to tribunals of law and fact, even if compliance requires disclosure of information otherwise prohibited by Rule 16-106.

Rule 16-113 adopts the Model Rule requiring lawyers retained by organizations, including government agencies, to report improper acts by corporate representatives likely to result in substantial injury to the organization. The revised rule requires reporting to higher authorities in the organization and, in limited circumstances, outside the organization. The combination of this rule and rules 16-106 and 16-401 would require organizational lawyers to disclose material

continued on page 6

New Mexico Lawyer 5

Despite the best attempts of the legal profession to establish high standards of legal ethics and se-

vere disciplinary sanctions for their breach, it always has been true that a small number of lawyers from time to time misappropriate money from their cli-ents (see ABA Compendium of Client Protection Rules, 2005 Edition). In most cases, those dishonest lawyers have neither the inclination nor the financial abil-ity to reimburse their victims. According to the ABA Compendium, since 1959 when the first client protec-tion fund in the United States was established by the Vermont Bar Association, most other jurisdictions have established similar funds for protecting the pub-lic. These client protection funds have been created by court rule, legislation, or the voluntary action of bar associations. In jurisdictions in which bar membership is mandatory, the fund usually is managed and oper-ated by the state bar association. The revenues for these funds are generated from a variety of sources including mandatory assessments, legislative budget appropria-tions, and voluntary contributions. The American Bar Association has concluded that mandatory assessment by court rule is the best method of funding because the result is a reliable and predictable annual source of income which allows the client protection fund to fully reimburse all losses.

This nationwide attempt to establish client protection funds in every state is based on the ideas that (1) the practice of law is a profes-sion; (2) professionalism is a fundamental obligation of every law-yer; and (3) the protection of our client interests is at the heart of professionalism. Of course, noble intentions and lofty ideals are not enough. True professionalism requires lawyers to take concrete steps to protect the public. The reputation of all lawyers is besmirched by the wrongdoing of a few, and all lawyers benefit from the establish-ment and support of a fund that reimburses clients for the dishonest conduct of another lawyer. This is why all lawyers should participate in financially supporting the client protection fund in their states.

New Mexico has followed the national trends with regard to cli-ent protection. Over the past 30 years, the Supreme Court and the State Bar of New Mexico have worked together to maintain a viable and effective client protection fund, although the fund has substan-tially evolved over that time frame. In 2005, the Supreme Court issued an order directing the State Bar to create a commission that could manage New Mexico’s client protection funds pursuant to the modified guidelines promulgated by the American Bar Association’s Model Rules for Lawyers’ Funds for Client Protection. The result of that order was the creation of a Client Protection Fund Commission that currently operates as an arm of the State Bar.

The New Mexico Client Protection Fund Commission consists of seven lawyers appointed for staggered three-year terms. Four are appointed by the Supreme Court, two by the Board of Bar Commissioners, and one by the treasurer of the BBC. The executive director of the State Bar and the staff administrator are ex officio

and nonvoting members. The commission currently meets approxi-mately four times per year, depending on the number of pending claims.

The mission of the commission and the Client Protection Fund is simple: to promote public confidence in the administration of justice and the integrity of the legal profession by reimbursing losses caused by the dishonest conduct of lawyers admitted and licensed to practice law in the courts of this jurisdiction. The commission receives, evalu-ates, and pays claims; promulgates rules of procedure and, subject to the approval by the Supreme Court, prudently invests portions of the fund that may not be needed to pay current losses. As part of its charter, the commission also publicizes its activities to potential claimants, the public, and the bar; prosecutes claims for restitution and, among other things, engages in studies and programs for client protection and the prevention of dishonest conduct by lawyers.

In order for a claim to be eligible, the loss must be caused by the dishonest conduct of the lawyer and must have arisen by reason of a client/lawyer relationship. The claim must be filed no later than five years after the claimant knew or should have known of the dis-honest conduct of the lawyer. Dishonest conduct means wrongful acts committed by a lawyer in the nature of theft or embezzlement of money or the wrongful taking or conversion of money, property, or other things of value, including but not limited to the failure to refund unearned fees received in advance, as required by the New Mexico Rules of Professional Conduct, and the borrowing of money from a client without intention to repay it or with disregard to the lawyer’s inability to or reasonably anticipated inability to repay it. It is important to note that the fund does not exist to reimburse clients

By Charles J. Vigil

6 New Mexico Lawyer

for the alleged negligence or malpractice of a lawyer, nor does it serve as a mechanism to resolve fee disputes. If a client has a claim of negligence or a fee dispute, both of which are not eligible for re-imbursement through the fund, those claims can be pursued in court or through the State Bar fee arbitration program. With respect to eligible claims, current fund rules provide that the commission can pay a maximum of $10,000 per claim.

The commission pro-cessed a total of 38 claim form requests in 2007. Of those re-quests, 16 claim forms alleging a total loss of $61,715.89 were filed with the commission.

Of these 16, six claims in the total amount of $13,645 were paid in full or in part. Claims submitted and paid substantially increased in 2008. The commission processed a total of 76 claim form requests in 2008. Of those requests, 62 claim forms alleging a total loss of $204,189.13 were filed with the commission. The return rate of claim forms filed in 2008 represents 82 percent of the total claim forms that were requested and sent. Of the 62 claims filed with the com-mission, 39 claims in the total amount of $ 92,198.28 were paid in full or in part.

The commission firmly believes that it is the duty of every lawyer to support continued funding for client protection in amounts adequate for the proper payment of claims and the costs of administering the

facts learned in the course of their representation when disclosure is necessary to avoid assisting in a criminal or fraudulent act.

Conflicts, Disqualification, and ScreeningThe rules regarding conflicts of interest and disqualification (16-107 through 16-112) have been reorganized for clarity. Substantial new commentary has been provided for guidance in these most difficult of areas. Some specific changes are worth mention here.

Rule 16-108 lists nine specific concurrent conflicts. The revision clarifies that these conflicts are imputed to other lawyers in a firm.

Rule 16-110, regarding imputation of conflicts for non government lawyers, differs from the former rule and the Model Rule by allow-ing for screening without consent of the affected clients. The Ethics 2000 Commission was persuaded that nonconsensual screening adequately balances the interests of the former client in confiden-tiality of information, the interests of current clients in hiring the counsel of their choice (including a law firm that may have repre-sented the client in similar matters for many years) and the interests of lawyers in mobility, particularly when they are moving involun-tarily because their former law firms have downsized, dissolved or drifted into bankruptcy. Presently, 1 http://www2.istockphoto.com/file_thumbview_approve/3342273/2/istockphoto_3342273-bright-red-umbrella-with-path.jpg 7 jurisdictions permit non-consensual screening of laterals by this rule7. The ABA House of Delegates rejected the recommendation and struck the revision from the rule. The primary argument against screening is that the client gets no choice at all when a lawyer goes to a firm on the other side. The New Mexico revision rejects the ABA’s position and instead adopts what is currently the minority position allowing non-consensual screen-ing.

Rule 16-111, regarding conflicts of former and current government officers and employees, will allow the same lawyer who represents a government agency to concurrently represent a private client before the government agency under limited circumstances.

Candor Toward the tribunal Rule 16-303 is revised and reorganized to clarify a lawyer’s obliga-tion of candor to the tribunal with respect to testimony given and actions taken by the client and other witnesses. The commentary was reorganized and expanded to address some recurring situations not directly addressed in the rule. Some of the lawyer’s obligations to the tribunal have been strengthened. For example, the rule now clarifies that the lawyer must not allow the introduction of false evidence and must take remedial steps where the lawyer learns that material evidence offered by the client or a witness called by the lawyer is false—regardless of the client’s wishes. As under the former rule, the lawyer’s obligations to the tribunal may require the lawyer to reveal information otherwise protected by Rule 16-106. The lawyer’s obligation in the former rule to avoid assisting client crime or fraud is replaced by a broader obligation to ensure the integrity of the adjudicative process. The lawyer must take remedial measures when-ever the lawyer comes to know that any person is engaging or has engaged in criminal or fraudulent conduct related to the proceeding, such as jury tampering or document destruction.In one special case, however, the lawyer’s obligation to the client has been reaffirmed and strengthened, and that is where the lawyer represents the defendant in a criminal proceeding. For the first time the rule text will address the special obligations of a criminal defense lawyer, providing that such a lawyer does not have the same discre-tion as other lawyers regarding the client’s own testimony. While a criminal defense lawyer is subject to the general rule prohibiting the offering of testimony the lawyer knows to be false, the lawyer may

The Rules of Our Profession continued from page 4

fund. Although permitted, it has not yet been necessary for the com-mission to seek an assessment from New Mexico lawyers to fund client protection in New Mexico. The New Mexico Client Protection Fund currently receives its revenues by order of the Supreme Court through the Minimum Continuing Legal Education Board, which graciously has agreed to provide its excess funds for the benefit of the Client Protection Fund. For now, the commission has sufficient reserves to pay claims and operational expenses.

The number of New Mexico Client Protection Fund claims is on the rise, and the commission expects this trend to continue. The commis-sion’s goals for the future include, among other things, an increase in the maximum amount that it can pay per claim. In the best of all worlds, the commission would be in a position to operate and manage a fund that could fully reimburse every claimant. Indeed, a survey of client protection funds from every jurisdiction reveals that the New Mexico cap of $10,000 per claim is one of the lowest in the United States. For the reasons explained at the beginning of this article, lawyers in New Mexico should strive to do better.

About the AuthorCharles J. Vigil is the president and managing director of Rodey, Dickason, Sloan, Akin & Robb PA in Albuquerque, where he practices in the areas of labor and employment, products liability, commercial litigation and pro-fessional liability. He is a past president of the State Bar of New Mexico and has been actively involved in the area of client protection on both the state and national level. Since 2006, Vigil has served as a member of the New Mexico Client Protection Fund Commission and in 2008 he was appointed to serve on the ABA Client Protection Fund Committee.

“39 claims totaling $92,198.28 were paid

in full or in part.”

http://www2.istockphoto.com

New Mexico Lawyer 7

not refuse to allow a defendant to testify in the defendant’s defense if the lawyer only reasonably believes the testimony will be false. The commentary also provides that where a court insists that a crimi-nal defendant be permitted to testify in the defendant’s defense, the lawyer commits no ethical violation in allowing the client to do so even if the lawyer knows the client intends to lie.

Trial PublicityThe revision to Rule 16-306, regarding trial publicity, maintained much of the former rule over the substantially different Model Rule. The former rule applies only to criminal cases which will be tried to a jury. The revision applies to all jury cases, whether civil or criminal. The committee commentary is much more instructive than the rule and should be carefully analyzed by all litigation lawyers who may have media contact.

Special Responsibilities of a ProsecutorThe revision to Rule 16-308 provides that disclosure of mitigating evidence to the defense for sentencing purposes is now limited to “unprivileged” information in subsection (D). The revision adds a significant prohibition in subsection (E) that prosecutors are to re-frain from issuing subpoenas to other lawyers to appear in criminal proceedings except in the presence of three prescribed conditions. Subsection (F) now explains that when prosecutors make public statements, they are to refrain from making comments “that are false or create a clear and present danger of prejudicing a criminal proceeding.” The changes in the rule may have an effect on the way some prosecutors present cases to a grand jury or at trial.

Pro Bono ConsiderationsThe revised Rule 16-601 simply states that lawyers have a “respon-sibility” to provide legal services without the expectation of a fee to persons of limited means or groups and causes addressing such needs; deliver services at a reduced fee or no fee to legal service or-ganizations; participate in activities for improving the law, the legal system, or the profession; or contribute financial support to legal service organizations. The language that a lawyer should aspire to render at least 50 hours of pro bono legal service per year or in the alternative contribute financial support of $350 has been removed from this rule, but the New Mexico Supreme Court has adopted Rule 24-108 NMRA, which sets forth minimum pro bono goals and reporting requirements. Rule 24-108 emphasizes that service to the poor should be the primary mechanism of fulfilling this responsibility, and the financial support alter-native has been increased to $500.

Advertising and SolicitationRule 16-702, regarding communications concerning a lawyer’s ser-vices and referrals, has been replaced with a shorter more general rule with respect to the content of advertising but more specific with respect to referrals. Lawyers utilizing referral services, reciprocal referrals, or legal services plans should analyze the changes. Rule 16-703 contains more specific guidelines for direct contact with prospective clients. The revisions address the issues presented by the prevalence of electronic media by regulating real-time elec-tronic contact and all written, recorded, or electronic communica-tion, rather than just in-person or telephone communications ref-erenced in the former rule. Lawyers will no longer be permitted to participate in real-time solicitation of potential clients, such as chat rooms, unless those potential clients are lawyers, family members, close personal friends, or have a prior professional relationship. The proposed requirement that personal injury lawyers wait a period of 30 days before directly soliciting a potential client suffering an in-jury was rejected by the Supreme Court.

Reporting of Misconduct and Substance AbuseRule 16-803 provides greater specificity regarding the reporting of lawyer and judicial misconduct. The most significant change involves the mandatory reporting to the New Mexico Judicial Standards Commission of “any incumbent judge who illegally sells, purchases, possesses, or uses drugs or any substance considered unlawful under the provisions of the Controlled Substances Act” by any lawyer who has “specific objective and articulable facts or reasonable inferences that can be drawn from those facts,” that a judge has engaged in such misconduct. ConclusionThe above examples provide some insight into the depth of the revisions. The revision of the New Mexico Rules of Professional Conduct is an historic occasion for the bar. The overhaul of the rules provides an opportunity for New Mexico lawyers to study the rule changes and thereby renew their commitment to clients and their passion for the legal profession.

________________________________________________

Endnotes1One Model Rule conspicuously was not recommended for adop-tion in New Mexico. Model Rule 7.6, “Political Contributions to Obtain Government Legal Engagements or Appointments by Judges,” disqualifies a lawyer from accepting a government legal en-gagement or appointment if the lawyer or law firm makes a political contribution for the purpose of obtaining or being considered for appointment to a legal office. The concern behind this rule is that the integrity of the profession and the government is undermined if contributions, rather than competence and merit, provide the basis for appointments or awards of legal work by government agencies. The Code of Professional Conduct Committee has provided no ex-planation why this rule was omitted from the revisions proposed to the Supreme Court.2 As of Dec. 1, 2008, the text of the revised New Mexico rules are only available on the New Mexico Supreme Court Web Site: http://nmsupremecourt.nmcourts.gov/rules/app.php?rule_no=163 The ABA maintains an updated chart with Web links to individual state initiatives at http://www.abanet.org/cpr/jclr/ethics_2000_sta-tus_chart.pdf4 The State Bar of New Mexico Ethics Advisory Committee provid-ed a complete analysis and submitted comments to the proposed re-visions to the New Mexico Rules, which can be viewed on the State Bar Web site at http://www.nmbar.org/legalresearch/eao/Revisions_Analysis_for_Bar.pdf and http://www.nmbar.org/legalresearch/eao/RPC_Recommendations_EthicsAdvisoryCommittee07.pdf5 The text of the ABA Model Rules and commentary can be ac-cessed on the ABA Web site at http://www.abanet.org/cpr/mrpc/mrpc_toc.html.6 15 U.S.C. § 7201, the “Act”7 17 C.F.R Part 2058 Susan R. Martyn, Lawrence J. Fox, and W. Bradley Wendel, The Law Governing Lawyers, 2007-2008 Edition, pp. 120-123.

About the AuthorPeter H. Pierotti is an assistant city attorney for the City of Albuquerque. He was chair of the State Bar Ethics Advisory Committee from 1999 to 2007 and was an adjunct professor of ethics at the UNM School of Law in 2007.

http://nmsupremecourt.nmcourts.gov/rules/app.php?rule_no=16

http://www.abanet.org/cpr/jclr/ethics_2000_sta-tus_chart.pdf



http://www.nmbar.org/legalresearch/eao/Revisions_

http://www.nmbar.org/legalresearch/eao

http://www.abanet.org/cpr/mrpc

8 New Mexico Lawyer

Assisting the membership in resolving fee disputes with

their clients or among each other is the goal of the State Bar’s Fee Arbitration Program—a convenient and cost effective alternative to liti-gation. This program, in which the parties must agree to participate, is binding with the court and brings closure for the attorney and the client in a relatively quick manner. There is no charge for the program. The arbitrations are conducted by a panel of volunteer attorneys in ac-cordance with the rules of the pro-gram and the New Mexico Uniform Arbitration Act, §44-7A-1et. seq. NMSA 1978.

In 2008, the program received a total of 37 fee arbitration requests which were agreed to by both the attorney and the client. Twenty-three fee arbitrations were com-pleted with a total amount in dis-pute of $95,278.48. The other 14 arbitrations remain ongoing and have a total amount in dispute of over $62,000. Of the completed arbitrations in 2008, 76% of the fee disputes were awarded either totally or partially in favor of the attorney.

The following steps summarize the fee arbitration process which provides attorneys and clients with an expeditious, confidential, in-expensive, and impartial out-of-court method for resolving fee dis-putes.

An Alternative to Litigation in Resolving Fee DisputesBy Chris Joseph

Attorney Helpline: This program provides members of the Bar and non-admitted attorneys information and referrals in areas of attorney regulation, registrations (non-admitted, Pro Hac Vice, Legal Services), rules and practice. Attorneys wanting as-sistance should contact the General Counsel at (505) 797-6050 or (800) 876-6227 or e-mail to [email protected].

Ethics Assistance: Members may contact the ethics help-line at (800) 326-8155 for immediate assistance. For written response to an ethics inquiry send original questions, regard-ing one’s own conduct, to the Ethics Advisory Committee at [email protected].

Lawyers Assistance Program: A statewide network of recov-ering lawyers and substance abuse professionals dedicated to helping others within the profession get the assistance and sup-port they need. Contact (505) 228-1948 or (800) 860-4914.

Fee Arbitration: Provides free arbitration to resolve fee dis-putes between attorneys and their clients or disputes between attorneys. Contact (505) 797-6068 or (800) 876-6657.

Client Protection Fund: This program reimburses certain losses up to $10,000 caused by a member’s misappropriation of client funds or other dishonest conduct. Contact (505) 797-6068 or (800) 876-6657.

Petition to Arbitrate: The Fee Arbitration Rules are located at www.nmbar.org. Obtain the Petition to Arbitrate by calling (505) 797-6068 or 1-800-876-6657 or visit the Web site and print the form. Return the signed form along with billing statements, re-ceipts, and any correspondence re-garding the fee dispute.

Respondent Agreement: Copies of the petition and a respondent agreement are sent to the respon-dent, who has 20 days to return the signed agreement.

Volunteer Arbitrators: If both parties agree to arbitrate, an arbi-trator is assigned. Arbitrators are attorneys and non-attorneys from throughout New Mexico who do-nate their time to help resolve fee disputes.

Arbitration Hearing: The arbitra-tor will schedule a hearing to be

held in person or over the phone. Parties may choose to be repre-sented by an attorney, present evidence, and cross-examine witnesses appearing at the hearing. If one party does not appear, the arbitrator may still hear and determine the controversy. Parties may request a record of the hearing at their own expense.

Disputed Amounts: If the amount in dispute is between $1,000 and $25,000, the hearing will be held before a single arbitrator. If

The Office of General Counsel of the State Bar of New Mexico offers the following resources for attorneys:

continued on page 10

ee Arbitration




New Mexico Lawyer 9

For over ten years, hundreds of State Bar members have benefited from the confidential information and assistance provided by a

statewide network of volunteers known as the New Mexico Lawyers Assistance Program. The network is composed of volunteers in re-covery— mental health professionals as well as lawyers and judges. Those who have utilized NMLAP services range from professionals concerned about a colleague’s alcohol use, to individuals struggling with depression, to members seeking treatment after a wake-up call such as a DWI arrest. The number of calls made to NMLAP volunteers and helpline professionals (1-800-860-4914, 228-1948 in Albuquerque) has increased over the years, but there should be more. With help “only a phone call away,” why are in-dividuals reluctant to seek assistance? Why do people hesitate to call when they know a lawyer or a judge who appears to have a problem? The answer is fear.

“I’m just not sure. After all, Mary has been under a lot of pressure lately.”“Frank’s behavior has been erratic, but it’s probably just a rough spot in his life. He’ll get through it.” “If I call, Mary may get a Bar complaint.”“If I call, Frank might be fired by the firm.” “What if I’m wrong?”

• Drinking or using on the job before appointments, meetings, depositions or court appearances.

• Failing to show (or frequently being late) for appointments, meetings, depositions or court appearances; failing to return phone calls.

• Blaming others for mistakes, difficulties, or problems.• Isolation: avoiding partners, office staff, friends, family or clients.• Making excuses for, or lying about, frequency or amount of drinking

or drug use.• Driving while under the influence (whether arrested or not).• Experiencing blackouts or memory lapses when drinking or using.• Missing deadlines or neglecting work; overall decline in work.• Loss of appetite and lack of interest in recreation.• Trouble sleeping or sleeping too much.• Unprofessional appearance/hygiene.• Increased irritability; mood swings.

Common Warning Signs

ThE LawyErs/JUDgEs AssIsTancE PrograM:Confidential Assistance and Support for Bar Members in Need

By Briggs Cheney The list of reasons people conjure up for not calling the helpline is unending.

Don’t feel bad. These are natural fears, but what if “Mary” suffers from the disease of alcoholism or a gambling addiction? What if “Frank” is becoming immobilized by de-pression? Who/what might stop their lives from spiraling out of control? If you let fear keep you from calling the helpline and you do nothing to intervene, then maybe Mary will get arrested for DWI or worse, kill herself or someone else while driv-ing under the influence. Perhaps it won’t be that bad. Maybe Frank will just miss a statute of limitations or other important deadline and get sued, along with his firm, and eventually lose that job you were so worried about when you decided not to call the helpline.

You don’t help a friend or colleague by not calling, nor do you protect the public or a colleague by ignoring the warning signs. Sitting back and hoping for the best is a risky stance at best but looking deep and finding the courage to call is an action you will not regret. So what can you expect to happen if you make that call?

If you are seeking assistance for yourself, we will help you assess your situation and explore available counseling and support group options. We will also offer to connect you with a NMLAP volunteer in recovery who shares a history similar to yours. What you decide

continued on page 10

10 New Mexico Lawyer

Articles printed in this publication are solely the opinion of the authors. Publication of any article in the New Mexico Lawyer is not deemed to be an endorsement by the State Bar of New Mexico or the Board of Bar Commissioners of the views expressed therein. The New Mexico Lawyer’s purpose is to provide an educational resource for all members of the State Bar on matters related to the justice system, the regulation of the legal profession and the improvement of the quality of legal services.

to do with the information we provide is up to you. We won’t force you to participate in counseling, support groups or anything else; nor will we share your identity or other personal information with anyone else. Your confidentiality will be honored.

If you are calling with concerns about a fellow attorney or judge, you are not required to identify yourself or the individual about whom you are calling. The call and everything discussed is kept absolutely confidential. Just as with the individual seeking personal help, reports are made to no one, including the State Bar and the Disciplinary Board (see Rule 16-803(E) NMRA). Nothing happens unless and until you feel comfortable with some action being taken to help the individual in trouble.

When you call the helpline, you get a chance to talk to someone who understands addiction and mental health issues. No ques-tion is out of bounds and you can call back as often as you like. It

New Mexico Lawyers Assistance Program Helpline1-800-860-4914 • 228-1948 (in albuquerque)

is not uncommon for individuals to call more than once before they feel comfortable identi-fying themselves and the person about whom they are concerned. Once the person of con-cern is identified, the helpline professional and caller thoroughly examine the specifics of the situation and discuss options for reaching out to the individual in need. A common method of reaching out is what I affectionately term a drive-by, in which two NMLAP volunteers stop by Mary or Frank’s office unannounced. In this scenario, Mary or Frank is simply told there have been calls to the helpline and people are worried about him or her. The caller’s iden-tity is never disclosed, nor are specific incidents disclosed that might be associated with the caller. In fact, the NMLAP volunteers often do not know the identity of the caller. Most importantly, Mary and Frank are not labeled. Instead, the NMLAP volunteers honestly share their own personal struggles with alcohol, other drugs, or depression. They let them know there are many lawyers who struggle with addiction

and/or mental illness, and that if a lawyer is struggling, he or she is not alone. There is help. That’s it. That’s all that happens.

Studies show that approximately 50 percent of lawyers facing se-rious disciplinary charges admit to addiction or a psychiatric dis-ability. Most of these individuals exhibit warning signs long before an investigation is initiated and in many cases, their colleagues and friends had concerns that they pushed aside. The choice is yours. You can let fear win and pray that your friend or colleague finds his or her bottom without paying too heavy a price, or you can take “a shot of courage” (pun intended) and call the helpline.

About the AuthorBriggs Cheney has practiced law since 1973 in Albuquerque and practices with Sheehan, Sheehan & Stelzner, P.A., as an of counsel. His practice focuses on the representation of lawyers.

the amount in dispute is more than $25,000, either party may re-quest a panel of three arbitrators.

Outcome: The arbitrator will send a written determination to the State Bar Fee Arbitration program administrator who will forward it to the two parties involved.

Fee Service: The State Bar’s Fee Arbitration Program is a free ser-vice offered to members of the State Bar of New Mexico.

For more information or to volunteer for the Fee Arbitration Panel, contact Program Administrator Christine Joseph, (505) 797-6054.

About the AuthorChris Joseph is the program administrator for the general counsel of the State Bar of New Mexico. She assists with the Helpline, the Fee Arbitration Program and the Client Protection Fund Commission.

Fee Arbitration continued from page 8

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Certiorari Granted, No. 31,416, January 6, 2009


Opinion Number: 2009-NMCA-005

Topic IndexAppeal and Error: Standard of Review

Civil Procedure: Sanctions; and SettlementsJudges: Abuse of Discretion

Miscellaneous Statutes: Mediation Procedures Act

CARLSBAD HOTEL ASSOCIATES, L.L.C.,Plaintiff-Appellee,

versusPATTERSON-UTI DRILLING COMPANY, L.P., L.L.L.P.,

Defendant-Appellant,and

CHI OPERATING, INC.,Defendant.

No. 27,922 (filed: October 30, 2008)

APPEAL FROM THE DISTRICT COURT OF EDDY COUNTYJANE SHULER GRAY, District Judge

JOHN M. CARAWAYMCCORMICK, CARAWAY

& TABOR, L.L.P.Carlsbad, New Mexico

for Appellee

DONNA L. CHAPMAN-BROWNAMY M. CARDWELL

HATCH, ALLEN & SHEPHERD, P.A. Albuquerque, New Mexico

for Appellant

opinion

Jonathan B. sutin, chieF Judge

{1} The Fifth Judicial District Court provided an opportunity to the parties to engage in a court-sponsored settlement conference pursuant to a local settlement conference rule. Once the parties agreed to participate, they became subject to both the local rule and to a court order, which both required good faith participation. Defendant Patterson-UTI Drilling Com-pany, LP, LLLP (Patterson) determined in advance of the settlement conference that it had no liability and entered the settlement conference with no intention of settling. At the conference, Patterson offered an amount only under the threat of sanction. The district court judge presiding in the case, referred to hereafter as “the district court,” sanctioned Patterson for bad faith participation, based on (1) Patterson’s failure in advance of the settlement con-ference to notify Plaintiff Carlsbad Hotel Associates, L.L.C. (the Hotel) and a co-

Defendant, Chi Operating, Inc. (Chi), that it had determined that it had no liability and did not intend to make any offer to settle; (2) Patterson’s failure to make an offer except upon threat of court sanction by the facilitator; and (3) Patterson’s failure to further compromise from the offer it made under threat of sanction. This case requires us to consider the propriety of the sanction imposed against Patterson for vio-lation of the local rule and the court order. Although we express some concerns about the requirement of good faith in general in the mediation context and its meaning in particular in thesamecontext,weaffirmthe sanction because the order to which Patterson agreeddefinedgood faith in amanner pursuant to which the district court could have properly found that Patterson was in violation.INTRODUCTION{2} Several insightful articles in the last several years have addressed the propriety of court rules requiring good faith par-ticipationincourt-affiliatedmediationsandsettlement conferences and the propriety of

allowing courts to sanction participants for the failure to negotiate in good faith. In the eyes of several practitioners and academics, the application of a good faith requirement and the imposition of sanctions can be overly problematic. SeeJamesJ.Alfinietal., Mediation Theory and Practice 287-314 (Matthew Bender & Co., Inc. ed., 2d ed. 2006); Carrie Menkel-Meadow et al., Mediation: Practice, Policy, and Ethics 301-11 (2006); Stephen J. Ware, Principles of Alternative Dispute Resolution § 4.30, at 335-37 (2d ed. 2001); Roger L. Carter, Oh, Ye of Little (Good) Faith: Questions, Concerns and Commentary on Efforts to Regulate Participant Conduct in Media-tions, 2002 J. Disp. Resol. 367; Carol L. Izumi & Homer C. La Rue, Prohibiting “Good Faith” Reports Under the Uniform Mediation Act: Keeping the Adjudication Camel Out of the Mediation Tent, 2003 J. Disp. Resol. 67; John Lande, Using Dispute System Design Methods to Promote Good-Faith Participation in Court-Connected Mediation Programs, 50 UCLA L. Rev. 69 (2002); ABA Sec. of Disp. Resol., Resolution on Good Faith Requirements for Mediators and Mediation Advocates in Court-Mandated Mediation Programs (Aug. 7, 2004), \fs24*http://www.abanet.org/dispute/draftres2.doc (listing articles on the subject).{3} As indicated by one effective writer on the subject, “[r]ules . . . that permit courts to sanction a wide range of subjective behavior create a grave risk of undermin-ing core values of mediation and creating unintended problems.” John Lande, Why a Good-Faith Requirement Is a Bad Idea for Mediation, 23 Alternatives to High Cost Litig. 1, 9 (2005). A resolution of the American Bar Association Section of Dispute Resolution advocates examination and revision of rules authorizing sanctions for bad faith conduct in court-mandated mediation programs in order “to preserve the core values of the mediation process, namely, party self-determination, mediator impartiality,andmediationconfidentiality.”ABA, supra.{4} Competingviewsexistastothebenefitor detriment of a good faith participation requirementincourt-affiliatedmediationsand settlement conferences, even in those with which the parties have voluntarily agreed. There are several policies favor-ing a good faith participation requirement. “The call for good-faith in mediation is premised on the need to ensure that the court-ordered process is not a waste of time, that it is at least possible to achieve

http://www.abanet


a collaborative resolution, and that media-tion is not misused. Furthermore, some suggest that to the extent that courts order participation and parties devote resources to it, society should protect the integrity of the process.” Menkel-Meadow, supra, at 301; see also Lande, supra, 50 UCLA L. Rev. at 74 (pointing out the views that courts want to ensure that the time and money spent for mediation are well spent and that stakeholders also want to ensure maintenance of the integrity of the court-affiliatedmediationprograms).{5} However, there exist a number of concerns about and policies disfavoring a good faith participation requirement. These are addressed in the articles listed earlier in thisopinion.Thereareproblemsdefining“good faith” and wrestling with subjectiv-ity, and with commensurate concerns about adequate notice to the parties for what they can be sanctioned. In addition, requiring facilitators to report bad faith can com-promise their facilitative and neutral roles and can produce unwanted incursion into confidentiality.Also,thesanctionpossibil-ity gives one party a weapon against the other, thus encouraging, if not increasing adversarial behavior. Furthermore, the enforcement of sanctions creates satellite litigation resulting in more time and costs, something that mediation is meant to re-duce. Also prominent is an overriding no-tion of a party’s right to access to the court to have a claim resolved by a jury, together with the party’s right to control how the case is presented, with no limitations by coercion or threat of sanction. Finally, because mediations are not on the record, a party and the facilitator may disagree on what occurred. A hearing to take evidence onwhatoccurrednotonlyinvadesconfi-dentiality,itislikelytoproduceconflictingviews of what occurred in the mediation. This conflictwould raise fact and cred-ibility issues which, in turn, would raise questions whether the facilitator, whose view of what occurred in mediation would be in play, can in fairness sit in judgment.{6} In the present case, neither the local rule nor the order discusses whether the settlement conference was to be conducted in a manner consistent with norms and the principles of mediation, which require neu-trality and impartiality of mediators, strict confidentiality,voluntarysettlements,andself-determination (that is, the right of the parties to control whether an offer is made and the amount of any offer). See Izumi, supra,at80-87;Alfini,supra, at 298-99, 312 (questioning, in the author’s review

of Pitman v. Brinker Int’l, 216 F.R.D. 481 (D. Ariz. 2003), whether different standards should apply to a judicial settlement con-ference conducted by a federal magistrate, on the one hand, and a mediation, on the other). {7} Our analysis and determination in this case is driven, however, by the particular scheme into which the parties chose to enter. In this case, all parties agreed voluntarily to a settlement conference; consequently the district court issued an order providing for such a conference, thus bringing the proceeding within the sphere of the court’s local rule on good faith ne-gotiations. Under these circumstances, it is clear to us that Patterson was bound by the requirements of the local rule and order and can complain only if it is able to show that the court erred in the application and enforcement of its local rule and order. We hold that Patterson has not made that show-ing and that the court did not err. We also hold that Patterson cannot complain about the facilitator’s role in acting essentially as ahearingofficeronthequestionwhethersanctions were appropriate.BACKGROUND{8} The Hotel sued Patterson and Chi seeking loss of business damages alleg-edly resulting from a gas well blowout and subsequent emergency evacuation in Carlsbad, New Mexico. Patterson and Chi filedcross-claimsagainsteachother.AtaRule 1-016 NMRA scheduling conference in October 2004, the parties agreed to par-ticipate in a settlement conference pursuant to the district court’s local rule LR5-205 NMRA. LR5-205(A) provides that “[a] settlement conference will be ordered if the trial judge deems it to be appropriate or after agreement by counsel that such a conference may result in a settlement of some or all of the issues in the case.” The court ordered the parties to contact another judge in the same judicial district, Judge Currier, to conduct the settlement conference pursuant to LR5-205. See LR5-205(A) (“[A] settlement conference may be conducted by a judge of this district who is not assigned to the case[.]”). Pursuant to LR5-205(C), Judge Currier was expected “to promote a settlement” and was charged with the responsibility of being “an active participant in the conference.”{9} The court thereafter entered an order in which it referred the matter to Judge Cur-rier for the settlement conference, set the conference for February 2005, required that each party send to Judge Currier, but not to the opposing party, a letter or memorandum

summarizing the issues and giving an ap-praisal of the strengths and weaknesses of the positions of all the parties in the case. The order also required good faith partici-pation, as follows:

All parties shall have settlement authority and shall participate at the settlement conference in good faith. This means that, absent truly unusual circumstances, the parties will be expected to compromise from their last offer. Sanctions may be imposed if a party does not participate in the settlement conference in good faith.

LR5-205(B) similarly requires good faith participation:

All parties shall participate at the settlement conference in good faith and sanctions shall be im-posed if the settlement conference judgefinds that a party has notparticipated in good faith in the settlement conference, and the trial judge adopts the findings made by the settlement confer-ence judge.

{10} Pattersonsubmitteda“confidentialposition paper” that included an accoun-tant’s report indicating that the Hotel’s damages were overvalued and that its damages were approximately $9140. This report was also given to the parties before the settlement conference. Patterson rep-resents that it also explained “its position of no liability to Judge Currier . . . in the confidentialmediationpositionpaper.”{11} From all appearances, Patterson and the Hotel did not exchange any settle-ment offers. Chi, who had already settled with several hundred claimants in other lawsuits or non-litigation settlements, offered $10,000 before the settlement conference. The Hotel’s demand at the conference was approximately $32,000, which did not include an amount for punitive damages. At the settlement conference, Patterson stated that it had no liability and it made no initial offer. Judge Currier reminded Patterson of the district court’s order and informed Pat-terson that he thought it was violating the order by not participating in the process in good faith. Based on Judge Currier’s own assessment of Patterson’s risk, Judge Cur-rier insisted that Patterson make an offer and reminded it again of bad faith. After a threat of sanctions, Patterson offered $1000 toward settlement. Judge Currier informed Patterson that he did not believe $1000 would satisfy its duty to participate


in good faith. Patterson represented that if the other parties were close to settle-ment, refusing to specify what it meant by “close,” it might be willing to contribute enough to settle the case. After consulting with Chi and to follow up on Patterson’s representation, Judge Currier asked Pat-terson if it would be willing to pay $5000 to get the case settled. The Patterson rep-resentative indicated that he would do so if Judge Currier could guarantee that the $5000 would produce a settlement. Judge Currier would not make the guarantee, but heindicatedthathewasconfidentthecasewould settle with an additional $5000 from Patterson. Nonetheless, Patterson made no further offers, and the settlement confer-ence ended without reaching a settlement afteraboutfivehoursofmediation.{12} After the conference, Judge Cur-rier submitted a sealed, written report of findingstothedistrictcourtthatindicatedPatterson had refused to participate in the settlement conference in good faith. In addition, the Hotel and Chi moved for sanctions against Patterson and asked for reimbursement for the costs of their repre-sentatives to attend the conference and for attorney fees.{13} After reviewing the matter, the dis-trict court instructed Judge Currier to con-duct a hearing to determine the good faith issue under the local rule and the court’s order and to enter sanctions if appropriate. PattersonthenfiledamotionrequestingthatJudge Currier be recused from hearing the pending motions for sanctions (1) because in his role as mediator he had recommended sanctions, (2) because he had personal knowledge of the disputed evidentiary facts concerning the mediation, and (3) because he was a material witness whose testimony may have been required for the hearing on the motions for sanctions. The district court denied Patterson’s motion, and Judge Currier heard the motions for sanctions on July 1, 2005. {14} At the outset of the hearing on the motions, when asked by Patterson in what capacity he was acting, Judge Currier ex-plained that he had acted in the matter as a mediator but in conducting the hearing on the issue of bad faith he was acting as a judge, comparing the process to that of a judge who is deciding an issue of direct contempt. Judge Currier pointed out, too, that Patterson offered $1000 only after he had told Patterson’s representative that he would be held in contempt if Patterson did not make an offer. Further, Judge Currier stated that he “consider[ed] $1000 to be

merelyatoken.”JudgeCurrierreaffirmedthe conclusions he had reached during the settlement conference, namely:

1. Patterson agreed to mediate and knew the contents of the court order four months prior to the me-diation.2. Patterson came unwilling and unprepared to settle, short of an unconditional dismissal.3. [The Patterson representative] was not a person with full settlement authority and demonstrated a level of disregard if not arrogance for the mediation process that I have not previously witnessed. The conduct of [the Patterson representative] and Patterson also showed disrespect for the other participants.4. [The Patterson representative] was warned on at least three occa-sions that Patterson was not partici-pating in the mediation process in good faith.

{15} At the end of the sanctions hearing, Judge Currier indicated that the problem he saw with Patterson’s conduct was that Pat-terson had determined by early November 2004 that it had no liability and that it did not intend to offer any money, but waited until the settlement conference to disclose this position to the other parties. Judge Currier stated that he believed Patterson was using the settlement conference merely for thepurposeofdiscovery“tofindoutwhat it was that the other side had that they could point afinger at in regard toPatterson.”{16} After the hearing on the motions for sanctions, Judge Currier entered an order indicating that “the [c]ourt [had] read its findings into the record regarding themediation” and stating that Patterson had “conducted itself in bad faith at the media-tion.” Afterward, Judge Currier entered a supplemental order that required Patterson to pay the Hotel $5,156.67, which represented attorney fees and the wages of the employees who attended the conference, as a sanction for participating in the settlement conference in bad faith. Patterson appealed that order. Judge Currier also ordered that Patterson pay sanctions to Chi; however, those sanctions are not before us on appeal.{17} While Patterson’s appeal was on this Court’s summary calendar (proposing dismissal for lack of a final order), the case settled with Chi paying $17,500 and Patterson paying $1000. Before settling, however,theHotelfiledamotionrequest-ing thedistrictcourttoadoptthefindings

and decision by Judge Currier and thereby to impose the sanctions in Judge Currier’s order against Patterson. The district court heard argument on the sanctions; listened to the record made at the hearing conducted by Judge Currier on July 1, 2005, which included Judge Currier’s view of what occurred at the settlement conference, the Patterson representative’s testimony, and statements of counsel; and ultimately agreed with Judge Currier.{18} The district court entered an order adoptingthefindingsandthedecisionofJudge Currier. The court stated that settle-ment conferences were not mandated, that they were instead “offered as essentially a service in efforts to facilitate settlement,” and that “[n]o one has a ‘gun to their head’ requiring that any party agree to par-ticipate.” The court further indicated that “when a settlement conference is agreeable to the parties, time, effort and attorney[] fees are necessarily expended in a good faith hope that settlement may be had. All that is required of any party is good faith.” The court then stated:

8. . . . [Judge] Currier found that Patterson determined from at least early November 2004 that it had no liability. And, in agreeing to par-ticipate in a settlement conference, Patterson did not disclose to the other parties that it intended to offer no monies whatsoever in settlement. Therefore, from fall of 2004 through early February Patterson allowed the other litigants to expect and believe that settlement by Patterson was at least a possibility.

9. [Judge] Currier further stated . . . that Patterson used the settlement process merely for discovery: “to findoutwhatitwasthattheotherside had that they could point a fingeratinregardtoPatterson.”

. . . .11. [Judge] Currier noted that

it would have been entirely reason-able for Patterson to express that it had nothing to offer based on [its] belief of no liability. Such would have been entirely within Patter-son’s right–and ultimately, it was Patterson’s obligation to do so.

12. Patterson argues that to impose sanctions would have a chilling effect on the settlement process, arguing that [Judge] Currier was trying to impose a judicially determined amount for purposes of settlement. . . .


13. However, Patterson entirely misses the point with regard to the reason for imposition of sanctions. . . . Patterson put all parties through an exercise in futility by virtue of agreeing to such a conference. The amount of money–the $1,000–was extracted only after threat by [Judge] Currier to impose sanctions.

Basedontheseandotherfindingsoffact,andafteradoptingJudgeCurrier’sfindingsand decision “in full,” the district court ordered that Patterson immediately pay the Hotel the sanctions recommended by Judge Currier.{19} Patterson appeals the supplemen-tal order of Judge Currier and the district court’s order that required it to pay sanc-tions. First, Patterson contends that the court erred because “[failure] to offer a judicially determined settlement amount does not constitute bad faith warranting the imposition of sanctions.” Second, Patter-son contends that it was improper for Judge Currier, as mediator, to preside as a judge at the hearing on the motions for sanctions.DISCUSSIONSanctionsStandard of Review{20} There are no New Mexico cases addressing the imposition of sanctions for bad faith participation in a settlement conference or mediation. The parties to this appeal agree that we review whether the district court properly sanctioned Patterson by using the abuse of discretion standard. Patterson likens the issue to the review of the imposition of Rule 1-011 NMRA sanctions, as in Rangel v. Save Mart, Inc., 2006-NMCA-120, ¶ 12, 140 N.M. 395, 142 P.3d 983. Similarly, the Hotel compares the sanctions in this case to the imposition of discovery sanctions under Rule 1-037 NMRA, as in Gonzales v. Surgidev Corp., 120 N.M. 151, 156-58, 899 P.2d 594, 599-601 (1995).{21} An abuse of discretion occurs “when the court’s decision is without logic or reason, or . . . clearly unable to be defended.” Id. at 157, 899 P.2d at 600 (alteration in original) (internal quotation marks and citation omitted). A district court abuses its discretion if its ruling is based on an erroneous view of the law. Rangel, 2006-NMCA-120, ¶ 12. “It is not the function of a reviewing court to substitute its own interpretation of a local rule for that of the court which promul-gated the rule.” James v. Brumlop, 94 N.M. 291, 295, 609 P.2d 1247, 1251 (Ct. App.1980).

The Sanctions Were Not an Abuse of Discretion{22} Patterson argues that the district court erred by construing the good faith requirement to require Patterson “to ac-cept a judicially predetermined amount for settlement, in excess of the amount Patter-son believed to be the settlement value of [the] case.” Patterson relies on federal case law to support its position, particularly the case of Dawson v. United States, 68 F.3d 886, 887 (5th Cir. 1995), which overturned sanctions for failing to offer to settle pursu-ant to a local rule requiring a “good-faith effort to settle.” In support of the sanctions, the Hotel refers to sanctions available under the inherent power of the court to control its docket, see, e.g., Gonzales, 120 N.M. at 154-55, 157, 899 P.2d at 597-98, 600, as well as to Rule 1-016(F) NMRA which governs sanctions related to pretrial confer-ences. See LR5-205(A) (stating that under Rule 1-016 “a settlement conference may be conducted by a judge of this district”).{23} The extraction of coerced settle-ment offers through threat of sanctions can be acceptable, if at all, only in extremely limited circumstances. The present case puts this principle to the test. We believe that, under the specific circumstances ofthis case, the decisions of Judge Currier and the district court may stand. It is the specificcircumstancesinthiscasethatsetthis case apart from Dawson and other cases that disfavor sanctions imposed for lack of good faith participation. Contrary to the implication in the dissenting opinion, this case is not about a judicially predeter-mined settlement amount, which is Pat-terson’s sole position on appeal. It is also not about a party that came to a settlement prepared to compromise in any voluntary way; the court below found on the basis of the facts before it that Patterson made itsfirstofferonlyunderthreatofsanction.The conclusions in the dissenting opinion thereforeappeartoustoberefindingthefacts, something an appellate court should not do. See, e.g., Blaze Constr. Co., Inc. v. Taxation & Revenue Dep’t, 118 N.M. 647, 653, 884 P.2d 803, 809 (1994); Clayton v. Trotter, 110 N.M. 369, 371, 796 P.2d 262, 264 (Ct. App. 1990). Instead, this is a case about a party who had no intention of ever settling, who put the parties and the court through the expense of a futile settlement facilitation, and who would only offer a token amount after a warning and threat of sanctions. {24} Here, the settlement conference was not mandated. The parties expressly agreed

to participate in a settlement conference and to do so in good faith. They understood that the conference was governed by the express good faith requirement in LR5-205(B) and in the court order for the settlement confer-ence. The rule and the order required not only good faith participation, but the order explicitly informed the participants that “absent truly unusual circumstances” they were “expected to compromise from their last offer.” Furthermore, they knew that another district court judge would act as the facilitator who was not only “expected to promoteasettlement”butwasaffirmativelycharged with the responsibility of being “an active participant in the conference.” LR5-205(C). The district court carried the power to sanction by rule and by court order, as well as by its inherent power.{25} At the same time, Patterson was a sophisticated participant and should have been aware based on the language of the rule and the order that it was entering into a settlement conference with the pos-sibility, if not likelihood, that it would be requiredtomakeabonafideefforttoreacha compromise. Further, Patterson should have been aware that the facilitator would engage in an evaluative process and press Patterson to make an offer that the facilita-tor would believe was made in a good faith effort to compromise. The ambiguity, lack of restricted and definitemeaning,and subjective nature of the words “good faith” and “compromise from the last of-fer” can be no defense to Patterson in this case because Patterson has not raised those questionable characteristics of the rule or the order as a basis of error or for reversal. In fact, Patterson raises no issue of lack of fair or reasonable notice of what conduct was sanctionable, and Patterson nowhere argues that it was not given reasonable or fair notice that its conduct in this case would be subject to sanctions.{26} While we question the wisdom of placing in a settlement conference rule or order a good faith requirement or a require-ment that a party compromise from the last offer, we see no basis on which to hold that the court erred in requiring Patterson upon threat of sanction to make an initial offer. We also see no basis on which to hold that the court erred in sanctioning Patterson for coming into the conference with no intent to make any offer and then for refusing to compromise further after making the initial offer. With LR5-205 in place and the court’s order agreed to, we cannot say that Judge Currier or the district court acted arbitrarily, capriciously, against reason or


logic, or under an erroneous view of the law. Judge Currier and the district court acted within the parameters of the rule and the order. Patterson does not argue that any particular constitutional or statutory provi-sion or any other law was violated by Judge Currier or the district court in considering the good faith of Patterson. Patterson, in our view, agreed to the rules of the game established in the local rule and the court order, and we cannot say that the district court abused its discretion in ruling that Patterson did not act in good faith and was subject to sanctions.Judge Currier Could Entertain the Motions for Sanctions{27} Patterson argues that it was im-proper for Judge Currier to preside as judge at the hearing on the Hotel’s motion for sanctions. Patterson takes the standard of review to be that of abuse of discretion. We see the issue to be whether the district court abused its discretion in selecting Judge Currier to consider whether sanctions were appropriate. As indicated earlier in this opinion, an abuse of discretion occurs when the court’s decision is without logic or reason, is clearly unable to be defended, or is based on an erroneous view of the law. See Gonzales, 120 N.M. at 157, 899 P.2d at 600; Rangel, 2006-NMCA-120, ¶ 12. {28} The settlement conference was to beconfidentialandisnotofrecordonap-peal except to the extent of recollections of what occurred as recounted in the July 1, 2005,hearing. Thus,confidentialitywasarguably breached in the hearing and then when Judge Currier reported what occurred in the settlement conference to the district court. Further, although the July 1, 2005, hearing was sequestered and sealed “except as to the Appellate Courts and counsel for Patterson,” the briefs of both parties cite portions of the hearing, and the Hotel cites portions of the hearing from which it was excluded; the Hotel thus apparently has had access to the record of the hearing. Because the case has settled and the parties both cite the hearing, we conclude that the parties have waived settlement conference confidentiality.{29} It is fair to question the wisdom, if not the fairness, of having a mediator or settlement facilitator also sit as a district court judge in ultimate judgment of cred-ibility, factual disputes, and law on the issues of good faith and sanctions. We do not, however, see the need to address this concern in this case. We construe the district court’s assignment of Judge Currier to hold a hearing on the motions for sanctions to be

an assignment to act essentially as a hear-ingofficer. Although the tenorof JudgeCurrier’s rulings took on an air of judicial finality, his rulingswere treated by thedistrict court as recommendations. The dis-trict court conducted its own, independent review of the proceedings and came to its own independent conclusions in regard to thecircumstancesandthejustificationforsanctions.Becausethefinalanalysisanddecision on sanctions were made by the district court, we reject Patterson’s argu-ments that allowing the process “would flyintheface”ofRule1-088.1(D)NMRAand Rule 21-400(A)(1), (3), (4), and (6)(a) NMRA, relating to district judge recusal when a judge’s impartiality is in question. Nor do we see a due process violation under the New Mexico Constitution, article II, section 18 as is also argued by Patterson. Furthermore we maintain our view that Patterson agreed to and was bound by the process contemplated under the local rule and the court order. {30} In conclusion, while we think that the process employed here, of utilizing the facilitatorasahearingofficerontheissueof good faith, is somewhat troubling, we cannot say that the district court abused its discretion in permitting Judge Currier to hear the motions for sanctions when, in the final analysis, the district court conducted its own full-record review and independently concluded that sanctions were appropriate.The Mediation Procedures Act{31} While it does not control the out-come of this case, we note that subsequent to the settlement conference in this case the New Mexico State Legislature passed the Mediation Procedures Act (the Act), NMSA 1978, §§ 44-7B-1 to -6 (2007). This Act governs “mediation[s] in which . . . the mediation parties are required to me-diate by statute or court or administrative agency rule or are referred to mediation by a court, administrative agency or arbitra-tor[.]” Section 44-7B-3(A)(1). The Act also covers circumstances where the parties and mediator agree to mediate as long as the agreement “is evidenced by a record that is signed by the mediation parties.” Section 44-7B-3(A)(2). The Act nowhere requires good faith participation or pro-vides for sanctions for failing to act in good faith. See §§ 44-7B-1 to -6. Further, the Actcontainsthefollowingconfidentialityprovision: “Except as otherwise provided in the [Act] or by applicable judicial court rules, all mediation communications are confidential,andnotsubjecttodisclosure

and shall not be used as evidence in any proceeding.” Section 44-7B-4. While the Actcontainsexceptionstotheconfidential-ity provision, there is no exception for use to determine whether a party participated in the mediation in good faith. See § 44-7B-5. We offer no view here as to whether the scope of the Act is intended to include rules such as LR5-205 or orders such as that entered in the present case.CONCLUSION{32} Weaffirmthedistrictcourt’ssanc-tions against Patterson. The parties will bear their own attorney fees and costs on appeal. We wish to emphasize that we affirmbecausewe see no constitutional,statutory, common law, or equity basis on which to reverse. We respectfully hope that the Fifth Judicial District Court, as well as other district courts throughout the State that have a good faith requirement similar to or the same as that of the Fifth Judicial District Court, consider the elimination of the good faith requirement in their court-facilitated settlement programs. We also respectfully suggest that, under its rule-making and rule-approval authority and its power of superintending control, as well as its authority to decide procedural matters based on policy considerations, our Supreme Court disapprove any future rules containing a good faith requirement and enter an order requiring existing rules to delete that requirement. {33} IT IS SO ORDERED. JONATHAN B. SUTIN, Chief Judge

I CONCUR:LYNN PICKARD, JudgeRODERICK T. KENNEDY, Judge (dis-senting).

KENNEDY, Judge (dissenting).{34} “Buy the ticket, take the ride.” Themajorityaffirmbyrestingonthefactsthat not only did Patterson agree to this seriouslyflawedprocessbutlaterfailedto make arguments that might have been persuasive, if not dispositive, in its favor. Patterson having thus acquiesced in its own demise, the majority feel compelled to affirm the sanctions entered againstPatterson. The district court found that Patterson argued that imposing sanc-tions would chill the settlement process and that Judge Currier “was trying to impose a judicially determined amount for purposes of settlement.” I believe that this is the nub of this case, and I disagree with the majority’s direction—that there


is no abuse of discretion in sanctioning a litigant for having no intention to settle a case where the judicial settlement facilita-torfindstheoffersthatareultimatelymadeat his insistence to be unacceptable.{35} I concur in the majority’s invita-tion to the Supreme Court and the district courts to re-evaluate this rule and similar rules promoting such coercive use of “settlement conferences.” Mediation as contemplated by New Mexico’s new Me-diation Procedures Act is an important tool. However, I believe that the district court’s and majority’s use of the term “mediation” is inappropriate in describing anything that happened in this case.1 I therefore refer to the “settlement conference” or “confer-ence.” The problem with the procedure in this case is that it is not mediation, it is not arbitration, but it imposes requirements on the parties in excess of the former without enforcing the procedural conditions of the latter. Perhaps the local rule provides for consistency, but in this case, imposing the requirement to compromise was an invita-tion to judicial overreaching. The threat of sanction if a party does not compromise further when the facilitating judge demands it steps outside of both the local rule and acceptable legal norms.{36} It is true that Patterson had the orderdefining“goodfaith”initsposses-sion for some months prior to the settle-ment conference. Patterson did not object that the order went beyond the local rule’s mentioning of “good faith” to defining good faith as acceptance of forced settle-ment regardless of the merits of Patterson’s position. Patterson did not complain that as the order was written “good faith” was to be a thoroughly subjective evaluation by the settlement facilitator that would leave Patterson bereft of any meaningful notice as to what behavior on its part might trig-ger sanctions. The majority imply that due to the order, Patterson knew a failure to “compromise” its previous position of “no liability” would be regarded as not partici-pating in good faith. The majority should not rest their case on Patterson’s “intent” not to settle being sanctionable when, as described below, Patterson compromised its intent, whatever it was , with two settle-ment offers. {37} It was clear under the local rule that Judge Currier would be an “active partici-pant” who would “promote a settlement” as

in previous conferences he had conducted. The majority state that the standard of conduct might have been ambiguous but that Patterson did not raise ambiguity as an argument. I believe that the standard of conduct required by the local rule and order was not ambiguous, that Patterson compliedsufficientlytosatisfytheorder’srequirement to “compromise,” and that the facilitator’s arbitrary conduct exceeded the scope and powers conferred by the rule, resulting in an abuse of discretion—the sanctioning of Patterson. I therefore dis-sent.The Rule and the Order Are Not Ambiguous{38} I disagree that the language “com-promise from the last offer” in the order is at all ambiguous, subjective, or lacking in restrictive meaning. The language is quite clear. The order also gave notice of what would be subject to sanctions: failing to “compromise from [a party’s] last offer.” Relying, as the facilitator and district court did, on Patterson’s lacking the intent to make an offer from the initial days of the case through the start of the conference says nothing about its good faith because, as Patterson underscores, it made an offer. Patterson compromised “from [its] last offer” upon offering $1000 at the settlement conference. When asked for yet more money, again under threat of the facilitator’s contempt power, Patterson agreed to $5000 but conditioned its agree-mentonthesumbeingsufficienttosettlethe case. Thus, “bad faith” became part and parcel of a $4000 disagreement between the facilitator and Patterson once the facilitator unilaterally rejected Patterson’s $1000 and insisted on a larger sum.{39} The facilitator’s statement in the later hearing when he reviewed his order of sanctions for bad faith was that offering $1000 “is tantamount to offering nothing. The court determines this to be bad faith[.]” However, $1000 is not “nothing,” and Pat-terson argued below that having made the offersatisfieditsobligationtocompromise.Neither the local rule nor the order cloak the facilitator’s idea of a proper amount with validity or even presumptive reason-ableness, nor does either require any party to accept the facilitator’s evaluation of the case’s merits. The majority say that Pat-terson was obligated to play by “the rules of the game.” That proposition should apply

equally to the court that issued the order and to the facilitator who both knew of Patterson’s pre-conference position prior to the conference and was empowered by the order setting the terms of the conference. Contrary to the majority’s position, Patter-son had no obligation to change its intent before the conference. The order imposed the obligation to compromise on the parties for purposes of the conference. Resistance to arbitrary demands by the facilitator thus improperly becomes a subjective measure of bad faith. Patterson’s conduct shows objectively that the requirement of com-promisingfromitslastofferwasfulfilled.AFacilitator’sInsistenceonaSpecificAmount to Settle Is Improper{40} Patterson stated its position of no li-abilityinthe“confidentialpositionpaper”itsubmitted to Judge Currier, which the other parties also received. Patterson also made its no-liability position clear at the outset of the conference and made no initial of-fer. Patterson was therefore sanctioned for participating in the mediation when it had “no intent” to settle and for misleading the other parties to believe there was “at least a possibility” of settlement. Objectively, through its conduct, Patterson clearly aban-doned acting on its intent, and that intent is irrelevant. That Patterson’s offering $1000 “only after” being threatened with sanctions should become the conclusive evidence of its bad faith is unjust. Patter-son made an offer and made its next offer contingent upon an assurance, rather than upon Judge Currier’s belief that the amount would settle the case. Objectively, Patter-son compromised, and then it objectively demonstrated its willingness to compro-mise further. This is not bad faith, and the majority substitute inchoate “intent” for objective acts on Patterson’s part to justify the sanctions. I cannot concur with doing so when the facts are plainly before us.{41} Court-annexed mandatory arbitra-tion in New Mexico also requires good faith. One writer suggests that good faith determinations rest upon requiring only that “[e]ach party must be prepared to discuss his position on the issues presented by the case and to commit the party to a particular position in the litigation but should not be required to make a settlement offer or counteroffer.” William Lynch, Problems With Court-Annexed Mandatory Arbitra-tion: Illustrations From the New Mexico

1 The majority opinion’s Introduction more than adequately notes the underlying attributes of mediation against which this process cannot measure up.


Experience, 32 N.M. L. Rev. 181, 203 (2002). The rationale for this view is that “[t]he parties must be assured that they can forcefully argue their positions (i.e., that there is no liability, or that plaintiff’s claim is not worth more than a certain sum) during the arbitration without the threat of sanctions being imposed.” Id. at 199.{42} Compromising from one’s previous position was contemplated by the parties to the settlement conference as an integral part of the district court’s order. Under this standard, an objective evaluation would inquire whether a party made a subsequent offer. Being sanctioned for resisting when the facilitating judge demands a larger offer chills the rights of each litigant to make its own determination as to whether a settle-ment is advantageous. Insisting on another offer is an action that I must regard as ex-ceeding the power of the judge and abusing his discretion under the local rule and the district court’s order. The majority do not address the question of whether a party has an absolute right to refuse to settle a claim or whether exercising such refusal can be sanctioned. See Kamaunu v. Kaaea, 56 P.3d 734, 743 (Haw. Ct. App. 2002) (“We view with disfavor all pressure tactics whether directly or obliquely, to coerce settlement by litigants and their counsel. Failure to concur in what the [judge] presiding may consider an adequate settlement should not result in an imposition upon a litigant or [litigant’s] counsel, who reject [sic] it, ofanyretributivesanctionsnotspecificallyauthorized by law.”). I believe a party has the right to refuse to settle.{43} I also regard the facilitating judge’s imposition of a bad faith sanction for not following his order to settle for a particular amount as outside the scope of LR5-205. This local rule requires of the facilitating judge “a frank appraisal of the judge’s opinion of the strengths and weaknesses of [each party’s] case, including the judge’s appraisal of the value of the lawsuit.” LR5-205(H). After iterating along this line, LR5-205(J) first requires that the judgeaddress all parties with an “opinion” of the case and “a fair settlement” value and then allows “[t]he parties . . . to confer with each other to see if an agreement can be reached.” Thus, the rule authorizes the facilitating judge to say what the judge

believes the case is worth but leaves to the parties the decision on whether to agree. The facilitator is not given the authority to impose a settlement value on the litigants using the lever of sanctions for bad faith. The rule does not contemplate the facilita-tor ordering a party to make a larger offer, and neither does the district court’s order. The order’s requirement of the parties was no more than to “compromise from their last offer.”{44} Patterson cites Dawson v. United States, 68 F.3d 886, 896 (5th Cir. 1995), in arguing against the imposition of a good faith standard as a basis for sanctions. Dawson maintains and Patterson argues that a district judge’s disagreement with the merits of a settlement position asserted in good faith by a party cannot underlie an order imposing sanctions. Id. Halaby, McCrea & Cross v. Hoffman, 831 P.2d 902, 908 (Colo.1992), held that the “‘adequate’ amount of settlement authority will vary based on the circumstances of each case, and a settlement conference judge should not impose sanctions because, in his opin-ion,theamountisinsufficient.”InHalaby, the Colorado Supreme Court granted a writ of prohibition preventing the imposition of sanctions in a case such as this where the facilitator imposed sanctions when the party’s offer of a minimal sum ended the settlement conference. Id. at 904-05. The facilitator asserted positions almost identi-cal to those in this case, referring to the hours spent by the parties and the nominal amount of the offer. Id. Alas, Patterson did not cite Halaby or Kamaunu.{45} For us to uphold the sanction because the facilitator “acted within the parameters of the rule and the order” ig-noresthefactthatPattersonalsofulfilleditsobligation under the order. It also ignores that the determination of bad faith is rooted in either Patterson’s original intent not to settle, which Patterson obviously aban-doned, or in no more than the facilitator’s unsupported determination that the $1000 offer should have been increased by $4000, with no assurance that he would impose his “opinion” of a settlement value similarly on the other parties if they did not accept it. That is arbitrary behavior on the part of the facilitator, and it is an abuse of the court’s discretion to sanction Patterson absent an

objective criterion upon which to place any faith in the dollar amounts demanded by the facilitator.{46} If such “active participation” of a facilitator is allowed, the facilitator must bear some responsibility to demonstrate that any attempts to force a settlement are both objectively reasonable and equally applied to all participants. Here, that would require the facilitator to demonstrate in his findingsthatbasedonhisrepresentationofthe sum’s acceptability, and having insisted on an offer of $5000 from Patterson, that he similarly insisted under threat of sanc-tion that the Hotel accept that sum. Such a demonstration is not made, and I would holdthatthedistrictcourt’saffirmanceofthe sanctions constitutes an abuse of discre-tion equal to the facilitator’s.The Facilitator Should Recuse From Judging His Own Sanction{47} Last, empowering a facilitator to don a judge’s hat to rule on the propriety of his own conduct is the essence of apparent impropriety and unfairness and should not be countenanced. The district court’s sub-sequent independent review should have been more skeptical.AStrainonJudicialEfficiency{48} Implementation of a rule such as LR5-205 with an order containing language as we saw here creates problems for court efficiencyandcontrolofthedocket.Themajority point out that this process has now been used in a second front of attack by Patterson’s opponents, whose motions to sanction Patterson’s conduct in the conference succeeded. Using subjective criteria to judge good or bad faith and then sanctioning a party as in this case engenders this sort of “satellite litigation” that nega-tively impacts the district court’s claim to promotingeconomyandefficiencythroughalternative dispute resolution. Edward F. Sherman, Court-Mandated Alternative Dispute Resolution: What Form of Par-ticipation Should Be Required? 46 SMU L. Rev. 2079, 2093 (1993). Further, the clear message is that a party who believes it has no liability should not engage in a settlement conference under a local rule or enabling order like this one, even if the possibility exists that such a party would acquire enough information to justify changing its position. RODERICK T. KENNEDY, Judge


Certiorari Not Applied For


Opinion Number: 2009-NMCA-006

Topic IndexRemedies: Prejudgment Interest

Statutes: InterpretationWorkers’ Compensation: Reimbursement; and Uninsured Employer

JOHNATHAN BRADY PIPKIN,Worker,versus

JERRY DANIEL, d/b/a DANIEL A/C & HEATING,Employer-Appellee,

andNEW MEXICO UNINSURED EMPLOYERS’ FUND,

Statutory Payor-Appellant.No. 28,212 (filed: December 1, 2008)

APPEAL FROM THE WORKERS’ COMPENSATION ADMINISTRATIONGREGORY D. GRIEGO, Workers’ Compensation Judge

opinion

JaMes J. Wechsler, Judge

{1} The New Mexico Uninsured Employers’ Fund (UEF) appeals from a compensation order of the New Mexico Workers’ Com-pensation Administration (WCA) denying it an award of pre-judgment interest against an uninsured employer, Jerry Daniel (Employer). The UEF contends that the Workers’ Compen-sation Judge (WCJ) erred in relying on NMSA 1978, Section 56-8-4(B) (2004), in denying it pre-judgment interest and that NMSA 1978, Section 52-1-9.1(G)(1) (2004), requires that such interest be awarded in this case. The UEF further argues that it is entitled to an award of pre-judgmentinterestattherateoffifteenper-cent per annum under NMSA 1978, Section 56-8-3(B) (1983). We agree with the UEF that the WCJ erred in applying Section 56-8-4(B)

MARK L. STOUTHobbs, New Mexico

for Worker

JERRY DANIELOdessa, Texas

Pro Se Appellee

GARY K. KINGAttorney General

Santa Fe, New MexicoRICHARD J. CROLLETT

Special Assistant Attorney GeneralAlbuquerque, New Mexico

NEW MEXICO UNINSURED EMPLOYERS’ FUNDfor Appellant

to deny it a pre-judgment interest award and that Section 52-1-9.1(G)(1) entitles it to such an award. However, as to the applicable rate of pre-judgment interest, we conclude that the UEF failed to preserve the argument that it makes on appeal that Section 56-8-3(B)’s annualrateoffifteenpercentappliestothiscase. We therefore reverse the portion of the WCA order denying the UEF pre-judgment interest and remand to the WCJ to determine the applicable rate.FACTS AND PROCEDURAL BACKGROUND{2} Jonathan Brady Pipkin (Worker) was an employee of Employer when he was injured in a work-related accident. It was ultimately determined that Worker was entitled to workers’compensationbenefits.Atthetimeof Worker’s accident, Employer was not insured. The UEF therefore paid Worker’s reasonable and necessary medical bills and

compensation benefits and also incurred other costs in administering Worker’s claim. See § 52-1-9.1(C) (“Money in the [UEF] is appropriated to the [WCA] to pay workers’ compensation benefits to a person entitledtothebenefitswhenthatperson’semployerhas failed to maintain workers’ compensa-tion coverage because of fraud, misconduct or other failure to insure or otherwise make compensation payments.”). Subsequently, the UEF brought this proceeding against Employer for statutory reimbursement under Section 52-1-9.1(G)(1). After a trial, the WCJ ordered Employer to reimburse the UEF for the amounts paid by the UEF. The WCJ also orderedEmployertopaytheUEFafineaswell as post-judgment interest. However, the WCJ, citing Section 56-8-4(B), rejected the UEF’s request for pre-judgment interest at the rate of ten percent per annum on the ground that Employer “did not unreasonably delay” the UEF’s claim. This appeal followed.ENTITLEMENT TO PRE-JUDGMENT INTEREST AWARD{3} WefirstaddresstheUEF’sargumentthatit is entitled to pre-judgment interest and that the WCJ did not have discretion to deny its request for such interest. In order to reach our decision, we must interpret both Section 52-1-9.1(G)(1) (requiring, as part of the Workers’ Compensation Act, an uninsured employer to reimbursetheUEFfor“benefitspaidtooronbehalf of an injured employee by the [UEF] along with interest, costs and attorney fees”), and Section 56-8-4(B) (allowing awards of pre-judgment interest following the entry of civil judgments). We address such issues of statutory interpretation under de novo review. See Cerrillos Gravel Prods., Inc. v. Bd. of County Comm’rs, 2004-NMCA-096, ¶¶ 4, 10, 136 N.M. 247, 96 P.3d 1167 (stating that issues of statutory construction that require the harmonization of multiple statutory provisions require de novo review), aff’d, 2005-NMSC-023, 138 N.M. 126, 117 P.3d 932.{4} In order to determine the proper applica-tion of Sections 52-1-9.1(G) and 56-8-4(B) to this case, we must carefully consider the statutory language used in them. Section 52-1-9.1(G) of the Workers’ Compensation Act reads:

For the purpose of ensuring the health, safety and welfare of the public, the director or a workers’ compensation judge shall:

(1) order the uninsured em-ployer to reimburse the [UEF] for allbenefitspaidtooronbehalfofan injured employee by the [UEF] along with interest, costs and attor-ney fees[.]


Section 56-8-4(B) reads:Unless the judgment is based

on unpaid child support, the court in its discretion may allow interest of up to ten percent from the date the complaint is served upon the defendant after considering, among other things:

(1) if the plaintiff was the cause of unreasonable delay in the adjudi-cation of the plaintiff’s claims; and

(2) if the defendant had previ-ously made a reasonable and timely offer of settlement to the plaintiff.

In interpreting the language used in these statutes, our purpose is to give effect to the intent of the Legislature. State v. Smith, 2004-NMSC-032, ¶ 8, 136 N.M. 372, 98 P.3d 1022. In doing so, we must seek to read different legislative enactments harmoniously, rather than toallow them toexist inconflictwitheach other. Id. ¶ 13. {5} Wehavelittledifficultyreadingthesetwostatutory provisions harmoniously with regard to the UEF’s entitlement to interest. Section 56-8-4(B) is general in its application, and when read in isolation, it seemingly applies to all cases as a result of its lack of limitations. However,theLegislaturespecificallylimitedthe scope of Section 56-8-4(B) in Section 56-8-4(C). Section 56-8-4(C) provides that “[n]othing contained in [Section 56-8-4] shall affect the award of interest . . . as otherwise permitted by statute or common law.” Sec-tion 52-1-9.1(G), as the UEF argues, must be considered such an award “otherwise permit-ted by statute” as contemplated in Section 56-8-4(C).Section52-1-9.1(G) specificallyapplies only in workers’ compensation cases involving the UEF and was plainly created to benefittheUEF.Therefore,whenwereadthetwo statutes at issue together, it becomes clear that the legislative design demonstrates that thespecificprovisionsofSection52-1-9.1(G)must prevail over the more general application of Section 56-8-4(B).{6} Moreover, the language included in Sec-tion 52-1-9.1(G)(1) is mandatory. It requires a WCJ or the director of the WCA to order an uninsured employer (1) to reimburse the UEF for an injuredworker’s benefits thatwere paid by the UEF and (2) to pay inter-est. Section 52-1-9.1(G)(1) does not give a WCJ or the director of the WCA discretion to determine whether the UEF is or is not entitled to either. Additionally, and particularly pertinent in this case, Section 52-1-9.1(G)(1) does not distinguish between pre- and post-judgment interest; instead, it refers only to an entitlement to “interest.” Because of its broad nature, we interpret the Legislature’s creation

of an entitlement to “interest” to include both pre- and post-judgment interest. See Erica, Inc. v. N.M. Regulation & Licensing Dep’t, 2008-NMCA-065, ¶ 18, 144 N.M. 132, 184 P.3d 444 (concluding that the Legislature’s in-clusion of “broad and malleable language” in a statute required a broad interpretation of that language on appeal). Indeed, we believe that the legislative intent “of ensuring the health, safetyandwelfareofthepublic”issatisfiedonly when the UEF is made whole for the full costofthebenefits,includinginterest,thatitadvances on behalf of uninsured employers. See § 52-1-9.1(G). Accordingly, we conclude that the WCJ erred in failing to award pre-judgment interest to the UEF. We therefore remand to the WCJ to grant such an award in accordance with our discussion below. RATE OF INTEREST{7} Our conclusion that the UEF was statuto-rily entitled to a pre-judgment interest award does not fully resolve this appeal. We must also decide the manner in which the WCJ should have made the award. The UEF argues thatit“isentitledtoproratedinterestatfifteenpercent annually” under Section 56-8-3(B). We disagree.{8} Although Section 52-1-9.1(G)(1), as we conclude above, mandates an award of pre-judgment interest to the UEF, it is silent as to the applicable rate. The UEF argues that Sec-tion56-8-3sufficientlyaddressesthatsilence.Section 56-8-3 provides:

The rate of interest, in the ab-sence of awritten contract fixinga different rate, shall be not more thanfifteenpercentannuallyinthefollowing cases:

. . . .B. on money received to the

use of another and retained without the owner’s consent expressed or implied[.]

On the other hand, Section 56-8-4(B) allows an award of pre-judgment interest “of up to ten percent” annually, depending on certain actions of the parties. The WCJ determined in this case, based on Section 56-8-4(B)(1), that the UEF should not be granted any interest award as a result of his conclusion that there was no proof that Employer unreasonably de-layed the UEF’s claim. See id. (permitting the court to exercise its discretion to award pre-judgment interest after considering whether “the plaintiff was the cause of unreasonable delay in the adjudication of the plaintiff’s claims”). Although we have concluded that Section 56-8-4(B) does not afford the WCJ discretion to deny the UEF a pre-judgment in-terest award, our conclusion does not foreclose the potential applicability of other portions

of Section 56-8-4(B), such as its “up to ten percent” rate of interest, to this case. As we have discussed, Section 52-1-9.1(G) requires the WCJ to award pre-judgment interest, but it does not specify a rate.{9} Despitethestatutoryconflictregardingthe applicable rate of pre-judgment interest, given the posture of this case, we need not decide whether the WCJ must act under Sec-tion 56-8-3(B) or 56-8-4(B). Our review of the record reveals that, in its closing argument andrequestedfindingsoffactandconclusionsof law, the UEF asked only for pre-judgment interest at the annual rate of ten percent, presumably pursuant to Section 56-8-4(B). Its argument on appeal that it is entitled to an annualrateoffifteenpercentunderSection56-8-3(B) is therefore not properly before this Court. See Rule 12-216(A) NMRA (“To preserve a question for review it must appear that a ruling or decision by the district court was fairly invoked.”). Ultimately, the WCJ is required to award interest under Section 52-1-9.1(G)(1), but regardless of whether Section 56-8-3(B) or Section 56-8-4(B) is applicable in a particular case, the factors included in Section 56-8-4(B) may be valid considerations in the exercise of the WCJ’s discretion in deciding the appropriate rate of pre-judgment interest. {10} Finally, for the purpose of remand, we note that the WCJ’s denial of pre-judgment interest because Employer “did not unreason-ably delay the [UEF’s] claim” was not a proper application of the considerations included in Section 56-8-4(B). Section 56-8-4(B)(1) al-lows for the court’s consideration of whether “the plaintiff was the cause of unreasonable delay in the adjudication of the plaintiff ’s claims.” (Emphasis added.) The rationale for this consideration is that a plaintiff should notbeabletobenefitfromtheplaintiff’sowndelay or cause detriment to the defendant. The UEF was in the position of the plaintiff in this proceeding because it initiated the claim at is-sue against Employer. The fact that Employer, as the defendant, did not cause an unreason-able delay therefore does not bear upon its obligation to pay pre-judgment interest to the UEF under Section 52-1-9.1(G)(1).CONCLUSION{11} We reverse the WCJ’s denial of pre-judgment interest and remand for an award of interest not to exceed ten percent annually.{12} IT IS SO ORDERED. JAMES J. WECHSLER, Judge

WE CONCUR:CELIA FOY CASTILLO, JudgeMICHAEL E. VIGIL, Judge


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Associate AttorneyLitigation firm seeks associate attorney with strong academic credentials and 1-5 years experience for successful, established complex commercial and tort litigation practice. Excel-lent benefits. Tremendous opportunity for professional development. Salary D.O.E. All inquiries kept confidential. Submit resume to POB 92860 Albuquerque, NM 87199 Attn: Box A

Assistant Trial Attorney and Senior Trial Attorney - Third Judicial District Attorney’s OfficeAre you looking for trial experience? Are you looking for co-workers who share your passion for prosecution? Do you want to live in a city that has all the amenities but less traffic and congestion? Then the Third Judicial District Attorney’s Office in Las Cruces is the place for you. There are lots of trials and an attorney staff of experienced prosecutors working in combi-nation with enthusiastic young attorneys and a great support staff. Resumès should be faxed or mailed to Kelly Kuenstler, District Office Manager, 845 N. Motel Blvd., 2nd Floor, Suite D, Las Cruces, NM 88007, fax number (575) 524-6379. Qualifications and salary pursuant to the New Mexico District Attorney’s Person-nel and Compensation Plan.

Litigation AttorneyWalsh, Anderson, Brown, Schulze & Aldridge, P.C., a law firm with offices in Texas and New Mexico is seeking a litigation attorney for our Albuquerque, New Mexico Office. Candidates should possess 3-5 years of litigation experience. Position involves representing public entities with areas of practice to include employment, business transaction, and general civil litigation. A pre-legal career in Education, Governmen-tal representation experience and additional licensing in Texas is also a plus. Both State and Federal Court experience required. Candidates shall possess a valid New Mexico Law License. Please email your cover letter, writing sample and salary requirements to [email protected] or to Legal Administrator, Walsh Anderson, P. O. Box 2156, Austin, Texas 78768-2156. To apply online, email resume to [email protected]

Attorney Attorney needed for a reputable law firm repre-senting numerous, nationwide banking/service clients in full range of creditor’s rights. Must be able to multi task in a high volume, fast paced office. Submit in confidence cover letter, re-sume, sal his & req to: 7430 Washington Street, NE Albuquerque, NM 87109, fax 833-3040, or email [email protected]

Assistant District AttorneyThe Fifth Judicial District Attorney’s office has immediate positions open to new as well as experienced attorneys in Carlsbad and Roswell, New Mexico. Salary will be based upon the District Attorney Personnel and Compensation Plan with starting salary range of an Associ-ate Trial Attorney to a Senior Trial Attorney ($41,685.00 to $72,575.00) dependent upon experience. Please send resume to Janetta B. Hicks, District Attorney, 400 N. Virginia Ave., Suite G-2, Roswell, NM 88201-6222 or e-mail to [email protected].

Assistant City AttorneyThe City of Farmington, New Mexico is accepting applications for the position of Assistant City Attorney I. Graduation from an accredited law school with a Juris Doctor degree in law, and a license to practice law in New Mexico; member in good standing of the State Bar Association, along with considerable knowledge of state statutes relating to munici-pal affairs and knowledge of laws relating to the purchase of goods and services, contracting, labor, employment, land use, environment and traffic is preferred. For a more detailed descrip-tion of job duties, contact City of Farmington Human Resources, 850 Municipal Drive, Farmington, New Mexico 87401, 505-599-1132, email [email protected], or visit our website at www.cofjobs.com.

AttorneyLarge New Mexico law firm with statewide practice seeks attorney with five or more years experience in commercial and transactional matters for immediate employment in the Albuquerque or Santa Fe office. Firm offers competitive New Mexico salary, excellent benefits, and a positive work environment. Send resumes to Managing Director, P.O. Box 25687, Albuquerque, NM, 87125-0687.

Litigation AttorneyLarge New Mexico law firm with statewide practice seeks litigation attorney with five or more years experience for immediate employ-ment in Santa Fe office. Experience repre-senting insurance companies and other large corporations a plus. Firm offers competitive salary, excellent benefits, and a positive work environment. Send resumes to Managing Director, P.O. Box 25687, Albuquerque, NM, 87125-0687.

LitigatorSuccessful PI Law Firm looking for Litiga-tor with 3-10 years experience to practice in theAlbuquerqueandEastern New Mexicoarea. Opportunityfor aggressive attorney who knows the value of team work; excellent pay and benefits. MUST SPEAK SPANISH, MUST HAVE EXPERIENCE IN PLEADINGS, PRETRIAL, DISCOVERY AND TRIAL. Send Resume [email protected]

Associate PositionsScheuer, Yost & Patterson, P.C., a Santa Fe AV rated mid-size firm, seeks associates with two or more years experience in one or more of the following civil practice areas: estate planning, taxation, real estate, education law and com-plex commercial, real estate and construction litigation. Strong research, analytical and writing skills are required. Must be licensed in New Mexico or in process of applying for license. Salary commensurate with experience. Please send resume, current writing sample and transcript to: Managing Attorney, P.O. Drawer 9570, Santa Fe, New Mexico 87504-9570.

Associate AttorneyGrowing Santa Fe law firm seeks associate with 3 to 5 years experience in civil litigation and courtroom experience. Candidates must have strong academic credentials, good writ-ing skills and work ethic. We handle complex commercial litigation, construction and land use disputes, and other civil litigation. Please submit resume to careers@rubinkatzlaw,com.

Senior Trial Attorney/Deputy District AttorneyThe 11th Judicial District Attorney’s Office, Division I, in Farmington, NM is accepting resumes for the position of Senior Trial Attor-ney/Deputy District Attorney, you should have at least 4 years as a practicing attorney. Salary DOE. New Mexico has a 1 year temporary license available until you have taken the New Mexico bar either in July or February. Please send resume to: Rick Tedrow, 710 E. 20th St., Farmington, NM 87401. Equal Opportunity Employer.

Experienced Legal SecretaryVery experienced legal secretary available for part-time work for Creditors Bankruptcy overload; also have experience in general legal fields. Available MTW, 6-9 PM; Sat 9 AM-5 PM; Sun 9 AM-5 PM. Call Roberta M. Meni-cucci, 277-1435, 440-4488.

Expert Witness—Commercial BankingEdward T. O’Leary, former CEO of First Secu-rity Bank of NM with over 40 years of experi-ence in problem asset workouts, commercial lending, credit administration and executive bank management, seeks assignments as expert witness. See www.etoleary.com.

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Four Offices AvailableBest location in town, one block or less from the new federal, state, metropolitan courts. Includes secretarial space, phones and service, parking, library, janitorial, security, reception-ist, runner, etc. Contact Thomas Nance Jones, (505) 247-2972.

Beautiful Adobe Close to downtown, courthouses, hospitals. Reception area, conference rooms, employee lounge included. Copy machine available. Am-ple free parking and easy freeway access. From $ 195.00 per mo. Utilities included. Oak Street Professional Bldg., 500 Oak St. N. E. Call Jon, 507-5145; Orville or Judy, 867-6566.

Downtown Office Space for Rent300 Central Ave. S.W. – only four offices left! Each office includes one cubicle. Rent includes utilities (except phones), daily cleaning, confer-ence room, library access, copy room, small kitchen area. Large reception area. $400-$550 per office. Call 242-3333 for more information.

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Contract Attorney/Paralegal ServicesNM licensed attorney available for contract legal research & writing, hearings or paralegal services. Contact Mary Sinton at 505-306-6973 or [email protected]. Resume/references available upon request.

Contract ParalegalContract paralegal with 20+ years experience in civil litigation available for trial preparation, deposition summaries, and all other paralegal tasks. Excellent references. (505) 899-2918

Building/Office Space For Sale or LeaseTerms negotiable. 1015 2nd Street NW. Hard-wood floors, Ample parking, 1 block to Federal Court Lisa Torraco 244-0530

New Great Uptown Location Available 2200 Sq ft. includes: 5 Executive Offices, Large Conference Room Furnished across from park, Fax Room, Easy Access to I-40. Please Call (505)220-4942

For Sale: Investment property with annual Ca$h Flow. 70 storage units - 100% leased with office/warehouse on C-3 land. Located at 5516 Silver, SE near San Mateo and Central. $1,250,000 Terms available for qualified buyer. Terrie M. Hertweck, Grubb & Ellis|New Mexico, 505.880.7022, terrie.hertweck@grubb-ellis.

For Sale: 5.4 acres vacant land at 1054 Sunset, SW. Lo-cated next to US Postal Service. $950,000 Terms available for qualified buyer. Terrie M. Hertweck, Grubb & Ellis|New Mexico, 505.880.7022, [email protected]

For Sale: 5,000 sf freestanding building across from Federal Courthouse. 800 3rd, NW next to Am-erAsia and Sumo Sushi. $750,000 Terms avail-able for qualified buyer. Terrie M. Hertweck, Grubb & Ellis|New Mexico, 505.880.7022, terrie.hertweck@grubb-ellis.

Still Closing Office!! Complete Set of NM Reports with bookcase, price negotiable. To view, call Jim (505) 995-8778

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Office Space For Rent Lovely office space for rent with open views of Taos Mountain. Professional building with other lawyers. We offer free DSL, a conference room, and parking. There are a few offices to choose from, so please call for more informa-tion. 575-758-5959, or email [email protected].

Order extra copies online at www.nmbar.org

To request an order form call the State Bar of New Mexico at (505) 797-6000 or E-mail [email protected]

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All advertising must be submitted by e-mail by 5 p.m. Wednesday, two weeks prior to publication (Bulletin publishes every Monday). Advertising will be accepted for publication in the Bar Bulletin in accordance with standards and ad rates set by the publisher and subject to the availability of space. No guarantees can be given as to advertising publication dates or placement although every effort will be made to comply with publication request. The publisher reserves the right to review and edit classified ads, to request that an ad be revised prior to publication or to reject any ad. Cancellations must be received by 10 a.m. on Thursday, two weeks prior to publication.

For more advertising information, contact:

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readyfor

Areyou

February14th?

Give your Valentine* a gift they will never forget AND make a tax-deductible contribution to EQUAL ACCESS TO JUSTICE.

A $150 tax deductible contribution to EQUAL ACCESS TO JUSTICE buys your valentine:

♥ a song delivered in person by a fabulous quartet ♥ a long-stemmed rose ♥ a box of chocolates♥ a card from you

For details and to reserve a time for delivery on February 14th, call 797-6064.

(*Valentines are spouses, partners, office staff, bosses, children, parents, neighbors, friends-share the legal love and help legal aid providers.)

P.O. Box 92860 Albuquerque, NM 87199-2860

Ph. 505.797.6064 • Fax. 505.797.6074 [email protected]• [email protected]

www.eaj-nm.org

mailto:[email protected]%E2%80%A2


http://www.eaj-nm.org

You’re Invited!What: State Bar of New Mexico’s

123rd Birthday CelebrationWhere: State Bar CenterWhen: 5 p.m., February 27

The State Bar is proud of the tremendous dedication and service that our membership has given to the legal profession and public. We hope you will join us for this important celebration.

Joe Conte, Executive directorHenry A. Alaniz, President

The state Bar will recognize our eldest and youngest active members, the longest practicing male and female attorneys, and attorneys who are celebrating 10, 25, and 50 years of service to our profession.

R.S.V.P. to (505) 797-6000

or [email protected]


February 9, 2009 • Volume 48, No. 6 · Ba r Bu l l e t i n - February 9, 2009 - Volume 48, No. 6...

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Transcript of February 9, 2009 • Volume 48, No. 6 · Ba r Bu l l e t i n - February 9, 2009 - Volume 48, No. 6...