In re Montoya

I attest to the accuracy and
integrity of this document
New Mexico Compilation
Commission, Santa Fe, NM
'00'05- 14:17:13 2011.11.23

IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: 2011-NMSC-042

Filing Date: November 9, 2011

Docket No. 32,397

IN THE MATTER OF
DENNIS W. MONTOYA,

An Attorney Suspended From The Practice of Law
In The Courts of the State of New Mexico

DISCIPLINARY PROCEEDING

William D. Slease
Joel L. Widman
Albuquerque, NM

for Disciplinary Board

Rodey, Dickason, Sloan, Akin & Robb, P.A.
Charles J. Vigil
Brenda M. Saiz
Theresa W. Parrish
Albuquerque, NM

for Respondent

OPINION

PER CURIAM.

{1} Almost three years ago, a state district judge initiated a disciplinary complaint against
attorney Dennis Montoya alleging numerous, serious ethical violations arising out of
Montoya’s legal representation of several clients in regard to an accidental death. Over time,
that one disciplinary complaint became many, as several federal judges in separate
proceedings publically reprimanded Montoya for numerous, well-documented ethical lapses.
When considered as a whole, all these complaints set forth a deeply troubling mosaic of
ethical misconduct that, for reasons set forth herein, unquestionably calls for discipline and
seriously calls into question Montoya’s fitness to practice law. For reasons beyond the scope
of this Opinion, resolution of these complaints was delayed inexcusably before the
Disciplinary Board, which enabled Montoya to claim an appearance of innocence for far too

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long. As a result, this Court has undertaken substantial revisions to our disciplinary process
to ensure that no such delays will reoccur.

BACKGROUND

{2} In 2010, counsel for the New Mexico Disciplinary Board charged Montoya with
seventy-four violations of the Rules of Professional Conduct. Disciplinary counsel
consolidated the charges into three disciplinary actions. Eventually, Montoya stipulated to
facts and violations charged in each of the three actions. Based on the stipulations,
disciplinary counsel and Montoya came to conditional agreements regarding discipline and
made a joint motion to consolidate the three disciplinary actions into one. This Court
adopted the consolidated agreement with some significant modifications to the proposed
discipline that will be discussed later in this Opinion. The following recitation of events and
violations derives from facts outlined in the stipulations that support the admissions made
in the conditional agreements and reasonable inferences drawn therefrom.

{3} We divide this Opinion into three parts: the state cases, the federal cases, and the
discipline.

THE STATE CASES

{4} The first disciplinary action against Montoya derived from several state claims (the
state cases) related to a tire failure that killed a New Mexico resident (Decedent). The state
cases involved recovery of Decendent’s life insurance proceeds, workers’ compensation
benefits, and wrongful death proceeds. The woman with whom Decedent lived at the time
of his death (Girlfriend) retained Montoya for legal representation in the state cases.

{5} As a preliminary matter, it is important to understand the relationships between
Decedent, Girlfriend, and the two children. Decedent and Girlfriend lived together for a time
in Utah. Though they never married, Decedent and Girlfriend held themselves out to be
common-law spouses. Girlfriend had a daughter (Girlfriend’s Daughter) from a previous
relationship who Decedent never adopted. At some point, Decedent, Girlfriend, and
Girlfriend’s Daughter moved from Utah to reside in New Mexico, where Decedent and
Girlfriend had a son (Son). When Decedent died, Son was approximately three years old.

{6} During the state cases, Montoya represented not only Girlfriend, but also Girlfriend’s
Daughter and Son. As we shall discuss, these parties’ legal interests were hopelessly
conflicted. While it is not clear at exactly what point Montoya knew that Girlfriend was not
Decedent’s wife, it is clear that Montoya should have known before he recovered funds in
any of the state cases.

Insurance Case

{7} Decedent died intestate and had a life insurance policy that did not list any

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beneficiaries. In order to convince the life insurance company to allocate proceeds to
Girlfriend, Montoya filed an application for Informal Appointment of Personal
Representative with the Eleventh Judicial District Court. In that application, he asserted that
Decedent died intestate, that Girlfriend was Decedent’s wife, and that Girlfriend’s Daughter
was Decedent’s issue. Neither of the latter assertions were true. Based on Montoya’s
misrepresentations, the district court appointed Girlfriend as the personal representative of
Decedent’s estate and, without a hearing, issued an order. Portions of that order, prepared
by Montoya, declared that Girlfriend was Decedent’s wife, that Son and Girlfriend’s
Daughter were Decedent’s minor children, and that Girlfriend was Decedent’s “heir-in-law.”
Only the statement regarding Son was true.

{8} Montoya’s paralegal submitted the court order and an affidavit signed by Girlfriend,
each representing to the life insurance company that Decedent and Girlfriend had a common-
law marriage pursuant to Utah law. Montoya admits that these documents were submitted
for the purpose of establishing Girlfriend’s claim to the insurance proceeds. As a result, the
life insurance proceeds, $73,806.97, were paid directly to Girlfriend, rather than to
Decedent’s estate.

{9} If the life insurance proceeds had been designated to Decedent’s estate, rather than
to Girlfriend in her individual capacity, the proceeds would have passed according to the
New Mexico’s intestate succession statute. See NMSA 1978, § 45-2-101(A) (1993) (“Any
part of a decedent's estate not effectively disposed of by will passes by intestate succession
to the decedent's heirs as prescribed in the Uniform Probate Code, except as modified by the
decedent's will.” (citation omitted)). Under the intestate succession statute, if a decedent has
issue but no spouse, the estate will pass to the decedent’s descendants. NMSA 1978, § 45-2-
103 (1993) (amended 2011); see also NMSA 1978, § 45-2-102 (1975) (“Share of the
spouse.” (emphasis omitted)). Thus, Son was Decedent’s only statutory beneficiary.

{10} Rather than setting aside proceeds for Son through Decedent’s estate, Girlfriend
received the entire amount in her individual capacity. Girlfriend then paid $25,000 of that
amount directly to Montoya for payment of costs of litigation of the state cases. Some
unquantified and unaccounted for portion of the remaining $48,806.97 was used for Son’s
clothing, education, and basic needs. Girlfriend never accounted for any of the $48,806.97.

Workers’ Compensation Case

{11} Montoya filed a workers’ compensation claim for the “Estate of [Decedent],” which
named Girlfriend as both Decedent’s personal representative and wife and named
Girlfriend’s Daughter and Son as Decedent’s children. The Workers’ Compensation Act
“only” permits persons prescribed as dependents therein to receive compensation benefits.
NMSA 1978, § 52-1-17 (1989). The only persons prescribed are dependent children of
certain ages, widows or widowers, dependent parents, and dependant grandchildren. See id.
Montoya never advised the Workers’ Compensation Administration that Girlfriend’s
Daughter was not Decedent’s child.

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{12} Montoya’s representation in the workers’ compensation case resulted in a lump-sum
workers’ compensation settlement of $55,000. From that amount, Montoya distributed
$23,135.25 directly to Girlfriend in her individual capacity. No part of the settlement was
set aside for Son or paid to Decedent’s estate. Montoya apparently retained the remainder
of the settlement, $31,864.75, for costs and fees.

Wrongful Death Cases

{13} Montoya also brought a lawsuit against the tire manufacturer and tire vendor that
made and sold the tire that failed during the accident that caused Decedent’s death. He
brought the suit on behalf of the Wrongful Death Estate of the Decedent and on behalf of
Girlfriend, Son, and Girlfriend’s Daughter for individual loss-of-consortium claims. The
Wrongful Death Act provides that proceeds from a judgment shall be distributed entirely to
a decedent’s child, if there is a child and no “surviving spouse.” NMSA 1978, § 41-2-3(A),
(B) (2001). The complaint and the amended complaint signed by Montoya specifically
alleged that Girlfriend was Decedent’s lawful wife. In the course of the lawsuit, Montoya
made representations about Decedent’s “wife and two children.” The pleadings never
advised the court that Girlfriend’s Daughter was not Decedent’s child or that Montoya was
relying on any theory of Girlfriend being a common-law wife under Utah law.

{14} Montoya settled the wrongful death claim against the tire vendor for a substantial
sum. Montoya retained approximately $22,250 of the total amount under a 33.33%
contingency agreement. The remainder, $45,000, was distributed entirely to Girlfriend in
her individual capacity; none of that amount went to Decedent’s estate or Son. It is
stipulated that a portion of the proceeds, unquantified and unaccounted for, was used for the
clothing, education, and basic needs of Son.

{15} Subsequently, Montoya negotiated a settlement of the claim against the tire
manufacturer for $550,000. He initially proposed allocating $450,000 of that amount to
Girlfriend and $100,000 to Son. This settlement was the first for which Montoya sought
court approval. From the total $550,000, Montoya initially planned to receive 40% as a
contingency fee, but eventually lowered that amount. The settlement proposal was brought
before District Judge Linda Vanzi, who appointed a guardian ad litem (GAL) to represent
Son’s interests. GAL began to investigate the proposed settlement and to question the
previous settlements (life insurance, workers’ compensation, and the wrongful death claim
against the tire vendor) from which no money had been specifically set aside for Son.

{16} Although Montoya had consistently represented Girlfriend as Decedent’s wife in his
wrongful death pleadings, he later represented to GAL that he was not relying on marital
status for Girlfriend’s recovery. Rather, he claimed that Girlfriend was entitled to the
settlement amount solely due to a loss-of-consortium claim under Lozoya v. Sanchez,
2003-NMSC-009, 133 N.M. 579, 66 P.3d 948, abrogated by Heath v. La Mariana
Apartments, 2008-NMSC-017, 143 N.M. 657, 180 P.3d 664. Lozoya stands for the
proposition that persons who are unmarried, in addition to married persons, may have a loss-

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of-consortium claim under certain circumstances. It states that “if a couple were to satisfy
the elements of a common law marriage, as it exists in other states, this would be a great
indication that the couple would have a significant enough relationship to warrant a claim
for loss of consortium.” Id. ¶ 24. Montoya did not attempt to plead facts to prove that
Decedent and Girlfriend’s relationship would “satisfy the elements of a common law
marriage.” Id. Rather, he simply asserted that Girlfriend was Decedent’s wife, a
relationship for which we recognized recovery for loss of consortium before deciding
Lozoya. See Romero v. Byers, 117 N.M. 422, 424, 872 P.2d 840, 842 (1994) (holding that
New Mexico should recognize a claim for spousal loss of consortium).

{17} Eventually, GAL alerted Judge Vanzi to potential problems and ethical violations
with regard to the proposed wrongful death settlement with the tire manufacturer. Judge
Vanzi ordered an investigation which uncovered many of the ethical violations discussed
herein related to the state cases. Based on what she learned, Judge Vanzi filed detailed
allegations with the Disciplinary Board regarding Montoya’s conduct. We are grateful to
her for doing so. Those allegations, eventually joined with others filed with the Disciplinary
Board, led to the consolidated conditional agreement and ultimately to this Opinion.

{18} The fact that Montoya egregiously violated numerous rules of professional conduct
in the course of representing the state cases is obvious. We now review those rules in detail.

Duty of Candor

{19} Montoya repeatedly violated his duty of candor to the court. The integrity of the
adjudicative process requires that a lawyer act truthfully and honestly before the court.
Montoya violated Rule 16-303(A)(1) NMRA by knowingly making false statements of fact
and law to a tribunal (e.g., the district court) and to GAL who was acting as an arm of the
court. Rule 16-303(D) provides that lawyers must also be forthcoming with all material facts
known so that the court may make informed decisions. Montoya also failed in an ex parte
proceeding—the application for appointment of Girlfriend as Decedent’s personal
representative—to inform the district court of all material facts known to Montoya that
would enable the court to make an informed decision. Montoya thus violated Rule 16-
303(D), which provides that lawyers must be forthcoming with all known material facts so
that the court may make informed decisions.

{20} In regard to Montoya’s apparent understanding at certain points during the state cases
that Girlfriend may have been Decedent’s common-law wife under Utah law, the theory was
unfounded on several grounds. First, it is well known that, unlike certain jurisdictions, New
Mexico does not recognize common-law marriages. See Hartford Ins. Co. v. Cline, 2006-
NMSC-033, ¶ 13, 140 N.M. 16, 136 P.3d 176. As an exception, New Mexico does
recognize common-law marriages that are valid in the jurisdiction where the marriage was
consummated. See In re Estate of Lamb, 99 N.M. 157, 159, 655 P.2d 1001, 1003 (1982). In
order to make Girlfriend’s marriage valid, however, Montoya agrees that he needed to
establish the marriage in Utah, under the terms of a Utah statute, Utah Code Ann. § 30-1-

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4.5(2) (West 2011).

{21} Montoya could have moved to establish the marriage for up to a year after
Decedent’s death, id., but he neglected to take those steps. Without doing so, even Utah
would not have recognized Girlfriend and Decedent as married. Id. If he had done so, Utah
may or may not have recognized the relationship because the state requires evidence that
Decedent had consented to the union. “[The statute on legalizing a common-law marriage]
requires general reputation, cohabitation, and assumption of marital obligations as separate
elements in addition to consent.” Whyte v. Blair, 885 P.2d 791, 795 (Utah 1994). The Utah
Supreme Court has cautioned that

[c]are must be given to guard against fraudulent marriage claims, especially
where a declaration of marriage would reap financial rewards for an alleged
spouse. When a reward is available, human nature may choose to strengthen
and augment, in retrospect, the consent to marry that was only tentative
before the reward became available.

Id. (internal citations omitted). Regardless of the merits of such a theory, Montoya
represented that Girlfriend and Decedent were lawfully married, without mention of the
common-law theory, in all of his court documents.

{22} In addition to dishonesty to the Court, Montoya’s lack of candor to others caused
him to violate additional rules. He violated Rule 16-401(A) NMRA, by making a false
statement to a third party (the life insurance company) in connection with the life insurance
proceeds. He also violated Rule 16-401(B), by failing to disclose a material fact to a third
party when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client.
He did so when his paralegal represented to the insurer that Girlfriend was the wife of
Decedent under Utah law and submitted her affidavit to that effect.

{23} Moreover, if sufficient, a failure of candor to the court can prejudice the
administration of justice in violation of Rule 16-804(D) NMRA. Montoya’s conduct reached
that level because his misconduct left the only lawful beneficiary in the state cases, Son,
without protection of his legal interests.

Conflicts of Interest

{24} A concurrent conflict of interest exists if there is a significant risk that the
representation of one client will be directly adverse to another client or will be materially
limited by the lawyer's responsibilities to another client. Rule 16-107(A) NMRA. Montoya
had a duty to his clients to avoid a conflict of interest. Id. Montoya violated Rule 16-
107(A)(1) by representing the substantially adverse interests of Girlfriend, Son, and
Girfriend’s Daughter. He violated Rule 16-107(A)(2) by representing a client when the
representation was materially limited by the attorney’s responsibilities to another client or
third party. Montoya’s representation of Girlfriend and Son created a particularly egregious,

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concurrent conflict of interest because the legal status of Girlfriend affected the amount of
money available to Son. A competent lawyer would realize that, because of the conflict, one
attorney could not represent them both.

{25} To illustrate, it was in Girlfriend’s best interest that she be considered Decedent's
wife. If Girlfriend were not the wife, she was limited to an individual claim for loss of
consortium. Because Decedent and Girlfriend were never married, nor recognized as
married in another state, Girlfriend was not statutorily entitled to recover from any of the
state cases. Conversely, it was in Son’s best interest that Girlfriend not be considered
Decedent’s wife. He was entitled to recover in all the state cases. If Girlfriend were not
Decedent’s wife, Son was the sole statutory intestate beneficiary, workers’ compensation
beneficiary, and wrongful death beneficiary. Despite Son’s superior legal standing,
however, he recovered far less than the amount to which he was entitled. For the most part,
the two parties were in conflict over the same proceeds, a “zero sum game,” in which the
interest of one party necessarily diminished the interests of the other.

{26} The concurrent conflict of interest was not just theoretical. It caused a significantly
disparate and unjust outcome in this case. The combination of life insurance proceeds,
workers’ compensation settlement, and the first wrongful death settlement against the tire
seller totaled $226,290.80. None of that sum was specifically set aside for Son, and none
of it was distributed through Decedent’s estate. Then, Montoya proposed a particularly
egregious distribution in the second wrongful death settlement, based on the false
representation that Girlfriend was Decedent’s wife. Even if that representation had been
true, Girlfriend’s wrongful death entitlement as a spouse would have been limited to one-
half. See NMSA 1978, § 41-2-3(B) (2001). Even with a nominal claim for loss of
consortium, Girlfriend’s legitimate claim to settlement proceeds could not have approached
$450,000 of the available $550,000, the settlement that was put forward by Montoya.

{27} Montoya violated Rule 16-108(G) NMRA, by making aggregate settlements of the
claims of Girlfriend and Son (and purportedly for Girlfriend’s Daughter) without obtaining
the written consent of each client after consultation (or court approval for the minor client).
While Montoya may have obtained Girlfriend’s consent, he failed to meet his obligation to
Son, who was only three years old when Montoya was retained for representation. Because
Montoya could not adequately represent Son’s interests while simultaneously representing
Girlfriend, he should have sought the appointment of a GAL or a conservator to take action
to protect Son. See Rule 16-114(B) NMRA. By failing to seek the appointment of a GAL
or a conservator, or take other protective action for Son in the negotiation and distribution
of settlement proceeds, Montoya violated Rule 16-114(B).

Competence

{28} In addition to his failed duty of candor to the court and conflicts of interest, Montoya
failed to provide competent representation. See Rule 16-101 NMRA. Montoya failed to
competently represent both Girlfriend and Son. In regard to Girlfriend, he failed to take

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appropriate steps to establish a common-law marriage between Girlfriend and Decedent
under the terms of the Utah statute. In regard to Son, Montoya’s competency failures were
numerous. He failed to properly distribute settlement proceeds, ignoring statutes that
mandated certain distributions. He failed to seek court approval of settlements which should
have benefitted Son. And, he failed to protect funds that were rightfully Son’s.

{29} Aside from conflicts-of-interest violations, Girlfriend, as Son’s mother, may legally
have been able to represent Son if that representation was for the purpose of distributing
proceeds to him. See Chisholm v. Rueckhaus, 1997-NMCA-112, ¶ 5, 124 N.M. 255, 948
P.2d 707 (stating that a parent can be a party to a child’s suit by representing the child’s
interests). Montoya had a reasonable duty of care, however, to ensure that Son’s interests
as a statutory beneficiary were protected—that Son received any proceeds obtained. See
Leyba v. Whitley, 120 N.M. 768, 770, 907 P.2d 172, 174 (1995). Montoya did not fulfill this
reasonable duty of care, nor is there any indication that Girlfriend was intended to be a legal
representative for Son. Although it was stipulated that some portion of the proceeds,
unidentified and unaccounted for, was used (presumably by Girlfriend) for Son’s clothing,
education, and basic needs, all settlement proceeds, before Judge Vanzi’s intervention, were
paid directly to Girlfriend, in her individual capacity, without any supervision and without
any accounting.

{30} Even in light of a legal possibility of representation, the facts in this case suggest that
Girlfriend should not have been trusted to represent Son. Before he recovered any settlement
amounts, Montoya knew that Girlfriend was using illegal drugs and that she had been
charged with felony possession of drugs, specifically methamphetamine. Drug possession
and use may be relevant to a parent’s ability to care for a child. See generally State ex rel.
CYFD v. Amanda H., 2007-NMCA-029, ¶¶ 26-27, 141 N.M. 299, 154 P.3d 674. This Court
finds it inexcusable that Montoya would distribute settlement proceeds—rightfully
belonging to Son—to Girlfriend, unsupervised and unaccounted for, when Montoya was
aware of her use of illegal drugs.

Staff Supervision

{31} In order to protect the public against unqualified persons rendering legal services,
only those who have passed the bar may practice law. See Rule 16-505 NMRA, ABA
Comment [2]. This rule does not limit a lawyer’s ability to hire paralegals, as long as a
lawyer supervises the delegated tasks and assumes responsibility for their actions. See Rule
16-505, ABA Comment [2]. Montoya did not stipulate to the facts relating to his paralegal’s
unauthorized practice of law (namely, the paralegal’s representation to the insurance
company the legal significance of certain facts). Despite this, he did not contest the
conclusion that he violated Rule 16-503(B) NMRA by failing to make reasonable efforts to
ensure that his paralegal’s conduct was compatible with the Rules of Professional Conduct.
He also admitted to violating Rule 16-503(C) by ordering or, with knowledge of the specific
conduct, ratifying the conduct of his paralegal, and Rule 16-505(A), by assisting another
person to engage in the unauthorized practice of law.

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THE FEDERAL CASES

{32} The second and third disciplinary actions against Montoya arose out of six federal
lawsuits (the federal cases). While it is rare for even one federal judge to single out and
publically admonish an attorney, several federal judges found it necessary to reprimand
Montoya. In the federal cases, like the state cases, Montoya failed to fulfil his duty of
candor to the court and to adequately supervise his staff. In addition, he filed frivolous
claims and ignored deadlines. Unlike the state cases, which were unified by their underlying
facts, the federal cases are unified by patterns of behavior, arising from different factual
scenarios. For that reason, we address Montoya’s violations in the federal cases by the type
of violation rather than by the case.

Candor to Court

{33} As we mentioned in our discussion of the state cases, the integrity of the adjudicative
process requires that a lawyer act truthfully and honestly before the court. In observation
of this duty, a lawyer shall not knowingly make false statements of fact or law. See Rule 16-
303(A)(1) NMRA. As with the state cases, Montoya failed to meet his duty of candor in the
federal cases. As an example of an infraction that represents the tip of the iceberg, Montoya
violated Rule 16-303 when he titled a motion that he knew was opposed—he noted the
opposition in the body of his motion—as “unopposed.”

{34} In another case, Montoya filed a complaint under the Age Discrimination in
Employment Act (ADEA) that was assigned to U.S. District Judge Judith C. Herrera. ADEA
protects individuals over the age of 40 from certain discriminatory employment practices.
Montoya alleged that his client was over the age of 40. During discovery, however, his client
admitted that she was only 35 at the time of her termination. Opposing counsel notified
Montoya of the significance of that age, a jurisdictional fact, but Montoya refused to dismiss
the case.

{35} Rule 16-303(A) provides that lawyers must “correct a false statement of material fact
or law previously made to the tribunal by the lawyer.” Once Montoya knew the age of his
client and that her case lacked merit, he should have notified the court. By failing to do so,
he violated Rule 16-303. Whether Montoya knew the age of his client, and therefore that
the ADEA claim was frivolous when filed, is unclear. It is clear, however, that he should
have investigated his client’s age before filing the lawsuit.

{36} If sufficient, a failure of candor to the court can prejudice the administration of
justice in violation of Rule 16-804(D) NMRA. It appears Judge Herrera concluded, and we
agree, that Montoya’s failure prejudiced the administration of justice. She granted summary
judgment to the federal employer and dismissed the ADEA action with prejudice. Citing
Rule 11(b) of the Federal Rules of Evidence, Judge Herrera gave Montoya the benefit of the
doubt that his initial allegation about his client’s age was made in good faith. However, the
judge asked, rhetorically, “why no effort appear[ed] to have been made to drop the claim

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following the revelation of Plaintiff’s actual age. Not only did [Montoya] not file an
amended complaint dropping the claim, but [he] did not renounce the claim in [the]
Response to Defendant’s Motion for Summary Judgment . . . .”

{37} In the same ADEA case, Montoya failed to meet his duty of candor to the court in
yet another way, when he altered deposition testimony to favor his client. The client was a
postal worker who had lost an “Arrow Key” while delivering mail and did not report its loss.
A supervisor had testified regarding the importance of the key, a type of master key for
mailboxes in Albuquerque. The supervisor specifically referenced the loss of the Arrow Key
as a reason for termination. While the supervisor’s original testimony supported the
contention that the key opened all mailboxes in Albuquerque, Montoya filed a motion with
the supervisor’s testimony redacted to read that the key only opened mailboxes in specific
areas of Albuquerque. Judge Herrera chastised Montoya for this behavior: “[Montoya’s]
use of an altered quotation that changes the substance of [the] statement as a basis for
challenging a material fact is disturbingly misleading at best.”

{38} In yet another case, Montoya failed to meet his duty of candor to the court by
violating Rule 16-802(A) NMRA, which prohibits making reckless statements about the
integrity of a judge. In that case, U.S. District Judge William P. Johnson awarded attorney’s
fees against Montoya, and Montoya filed an order to recuse the judge, accusing Judge
Johnson of having a personal bias against him. Montoya claimed that the basis for his
accusations was that Judge Johnson had ruled against Montoya in previous cases, criticized
Montoya’s legal representation earlier in this same case, which, as discussed below, was
more than justified, and obtained Montoya’s exclusion from the Criminal Justice Act (CJA)
panel through the Judge’s limited role in that decision, thereby making Montoya ineligible
to be appointed to represent criminal defendants in criminal court.

{39} We have reminded attorneys before that “[p]ersonal bias cannot be inferred from an
adverse ruling or the enforcement of the rules of criminal procedure.” State v. Hernandez,
115 N.M. 6, 20, 846 P.2d 312, 326 (1993). Montoya did not explain why Judge Johnson’s
prior adverse rulings and criticisms were not justified. Further, Judge Johnson just happened
to be one of seven New Mexico federal judges who had signed the order excluding Montoya
from the CJA panel.

Frivolous Litigation

{40} Montoya had a duty to use legal process to effectively advocate for his clients
without abusing that process. Included in this obligation is a duty not to bring or defend
legally or factually frivolous proceedings. Rule 16-301 NMRA. Montoya brought many
frivolous claims and filed many frivolous motions in the federal courts in violation of Rule
16-301.

{41} To begin, in Montoya’s groundless age discrimination claim, even when the
dispositive fact that his client was too young was plainly put before Montoya, he ignored it

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and continued litigating until he reached both the inevitable result and a written reprimand
from a federal judge. If the lawsuit was not frivolous when it was filed, it certainly became
frivolous when Montoya was alerted to the age discrepancy and failed to take action to
dismiss the lawsuit.

{42} In another case, Montoya filed two complaints, one of which was frivolous because
its legal basis was precluded by the other. First, he filed a “mixed-case” complaint with the
federal Merit System Protection Board (MSPB), meaning that Montoya claimed that an
agency personnel action was based in whole or part on discrimination in terms of race, sex,
or age. Three days later, he filed a complaint with the Equal Employment Opportunities
Commission (EEOC), alleging the same facts. Filing the mixed-case complaint with the
MSPB, however, constituted an election of remedy to the exclusion of an EEOC complaint.
Williams v. Munoz, 106 F. Supp. 2d 40, 43 (D.D.C. 2000) (stating that “[a] mixed-case
complaint may be filed with [the EEOC] or with the MSPB, but not in both places at once”
(citing 5 U.S.C. § 7702 (2007); 29 C.F.R. § 1614.302(b) (2010))). Thus, the EEOC claim
had no effect, or possible effect, whatsoever. The EEOC claim was frivolous.

{43} Then, despite the law on mixed-case complaints, Montoya opposed a summary
judgment motion on the basis that the ongoing EEOC complaint justified continuing the
MSPB case. That motion in opposition was frivolous because it had no legal basis. The
federal court granted summary judgment based on Montoya’s untimeliness in the MSPB
case, calling the EEOC claim a legal “nullity.”

{44} Yet another federal claim made by Montoya was frivolous because it lacked proper
defendants and supporting evidence. Montoya listed eight “unidentified” defendants but
failed to name or serve them, despite ample opportunity to do so. The one defendant
Montoya did name was a sheriff’s department. The sheriff’s department, however, was not
a proper defendant because a prior ruling had held that governmental subunits were not
proper defendants. Because Montoya also failed to put forth any evidence in support of
some of the claims he made, the claims were dismissed.

{45} In a case that highlights Montoya’s repeated frivolous filings, Montoya represented
a civil defendant in a lawsuit filed in Arizona state court. Montoya improperly removed the
case from the Arizona state court to the federal district court for the District of New Mexico.
Instead of attempting to improperly remove the action across state lines, Montoya could have
removed the case to Arizona federal court, see 28 U.S.C. § 1441(a) (2006), and then filed
a motion to transfer to New Mexico federal court, see 28 U.S.C. § 1404(a) (2006). Opposing
counsel sent a letter to Montoya correctly advising him that the removal was improper
because the case could only be removed to a federal district court in Arizona. Montoya
never withdrew the removal or responded to the letter. Opposing counsel in New Mexico
was then forced to file a motion to remand. Montoya argued forum non conveniens in
response, which had no basis in law or fact.

{46} Because neither filing had any legal merit, Montoya’s removal and forum non

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conveniens claims were both frivolous, in violation of Rule 16-301. In addition, the claims
delayed the litigation unnecessarily, in violation of Rule 16-302 NMRA. In ruling on
opposing counsel’s motion for remand to Arizona, federal Judge Johnson stated, not
surprisingly, that the removal petition was deficient on its face and that Montoya’s
arguments were “totally devoid of merit.” Judge Johnson also described Montoya’s removal
as “blatantly improper,” questioning why Montoya had insisted “that removal was somehow
proper” despite opposing counsel’s efforts “to demonstrate to [Montoya] just how legally
unsound and untenable his removal” attempt was. In addition to admonishing Montoya,
Judge Johnson awarded attorney’s fees against him.

Untimeliness

{47} Montoya chronically failed to meet court deadlines, thereby impeding the
administration of justice. A client is entitled to expect that an attorney will take reasonably
prompt action. In re Carrasco, 106 N.M. 294, 295, 742 P.2d 506, 507 (1987). Dilatory
practices, such as a consistent failure to expedite litigation, discredit the administration of
justice. See Rule 16-302, Committee Commentary. Therefore, a lawyer shall make
reasonable efforts to expedite litigation in accordance with clients’ interests. Rule 16-302.
Failure to expedite litigation not only discredits the administration of justice, but the passage
of time can also adversely affect a client’s interests. Rule 16-103 NMRA, Committee
Commentary, para. 3. Thus, a lawyer must act with reasonable diligence and promptness
in representing a client. Rule 16-103.

{48} In at least four federal cases, Montoya failed to file essential pleadings on behalf of
his clients. The fact patterns are strikingly similar in all four cases, illustrating a disturbing
trend of representation without diligence or promptness. Montoya’s repeated failure to file,
or to timely file, pleadings represents a failure to act with reasonable diligence and
promptness in representing his clients in violation of Rule 16-103. In one case, Montoya’s
client had seven days to file an appeal of his removal from the U.S. Air Force. Montoya
waited forty-two days after the deadline to file the appeal. Montoya then had thirty days to
appeal to the federal district court which he did not file until ninety-four days after that
deadline.

{49} Failing to file and filing late seemed to have become a matter of course for Montoya.
In one case, Montoya had a thirty-day window for initiating review of his client’s
termination by the U.S. Department of Agriculture. Twenty-nine days after the deadline had
passed, Montoya filed the complaint. In another instance, Montoya failed to timely respond
to a motion for summary judgment. Summary judgment was granted against that client, in
part due to Montoya’s failure to timely respond. In yet another case, Montoya failed to put
forth evidence in support of his allegations, which provoked the court to accept an opposing
party’s facts, undisputed, and to dismiss those claims.

{50} Montoya’s failure to act in a timely manner repeatedly prejudiced the administration
of justice. For example, when federal Judge Johnson awarded attorney’s fees against

12
Montoya, the court allowed Montoya ten days to object. Three months later, Montoya finally
objected. In another federal case, an opposing counsel sought attorney’s fees from
Montoya’s client. Montoya initially obtained an agreement from opposing counsel for an
extension to respond, but then failed to file that extension with the court. He then obtained
a second continuance with the consent of opposing counsel. When Montoya requested a
third continuance, opposing counsel did not consent. When Montoya’s opposition to the
motion for attorney’s fees was finally filed, despite the numerous extensions, it was late and
without leave from the court.

{51} In the same federal case, Montoya failed to timely respond to opposing counsel’s
motion for summary judgment. Instead, without leave of the court, he filed an untimely
motion for an extension to respond. Then, Montoya filed another untimely response, again
without leave of the court, opposing counsel’s motion for summary judgment. Montoya also
filed an untimely appendix of exhibits to his already untimely response. These repeated
delays and requests for continuances represent Montoya’s failure to make reasonable efforts
to expedite litigation, consistent with the interests of a client, in violation of Rule 16-302.

{52} Montoya’s untimeliness and lack of diligence provoked U.S. Chief Magistrate
Lorenzo F. Garcia to recommend sanctions against Montoya in response to the “needlessly
prolonged and increased . . . costs of the litigation.” U.S. District Judge James A. Parker
adopted Judge Garcia’s recommendation, finding that Montoya “brought federal
discrimination claims that had no basis, engaged in dilatory tactics, and continued to assert
meritless claims long after it became clear that the claims had no basis.” Montoya’s
untimeliness in another federal case caused U.S. District Judge Bruce D. Black to hold
Montoya’s client responsible for Montoya’s “errors that fall short of due diligence.”

Supervision of Staff

{53} As with the state cases, in which Montoya failed to supervise his paralegal, he also
failed to supervise his office staff, in violation of Rule 16-503 and Rule 16-505. Montoya
blamed his staff for his inability to meet court deadlines. This misplaced blame
demonstrates Montoya’s ignorance of his own professional responsibility to make reasonable
efforts to oversee his staff’s conduct and ensure compatibility with professional obligations.
See Rule 16-503(B). Our rules provide that a lawyer acting in a managerial capacity must
take measures to reasonably assure that the staff’s conduct is compatible with the lawyer’s
own professional obligations. See Rule 16-503(A). Moreover, the lawyer, not office staff,
is ultimately responsible for the knowledgeable and diligent representation of clients. See
In re Martinez, 107 N.M. 171, 172, 754 P.2d 842, 843 (1988) (finding the actions of a legal
assistant to be imputed to the actions of the attorney). The reoccurring inability of
Montoya’s staff to calendar deadlines and otherwise comply with Montoya’s professional
obligations represents a failure on Montoya’s behalf. He has the responsibility to oversee his
staff’s conduct and ensure that their work was compatible with his own professional
obligations. See Rule 16-503, Committee Commentary.

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{54} Blaming his staff for his own failure to meet court deadlines is an example of
Montoya’s alarming pattern of shirking his own responsibilities. This pattern is particularly
disconcerting in terms of whether Montoya can ever be trusted to practice law in the future.

DISCIPLINE

{55} As mentioned at the opening of this Opinion, disciplinary counsel and Montoya came
to a conditional agreement regarding discipline after consolidating the state and federal
cases. This agreement formed after Montoya conceded the various facts and violations
described herein and after he waived the right to a hearing before a hearing committee and
the Disciplinary Board.

{56} Upon initial review, this Court could not agree on several of the terms in the initial
consolidated agreement signed by Montoya and disciplinary counsel; the severity and
number of Montoya’s violations warranted a harsher penalty. The initial consolidated
agreement provided for a one-year suspension—six months for the state cases and six
months for the federal cases. It also provided for an automatic reinstatement of Montoya’s
license. Following reinstatement, the agreement provided for a one-year probationary
period. Because this Court must ensure that our expectations for Montoya’s period of
suspension are fulfilled before allowing him to practice again, we could not agree to an
automatic reinstatement of his license. In addition, we insisted that the probationary period
must be long enough so that, if Montoya does resume the practice of law, he does so
responsibly and in accordance with the Rules of Professional Conduct.

{57} The agreement was amended to address our concerns. It now provides that if
Montoya desires to reinstate his license after his one-year suspension, he must petition this
Court for reinstatement as provided under Rule 17-214 NMRA. Montoya’s suspension began
April 25, 2011. In addition, the probationary period is now three years rather than one. As
a condition of the agreement, Montoya was required to pay the costs incurred during the
disciplinary matter within ninety days. Any unpaid balance is subject to an 8.5% interest rate
per annum.

{58} During Montoya’s suspension, he may not provide any legal services, including
paralegal services, in connection with cases in which any of his present or former clients are
or were involved. He cannot work in, out of, or for the same office where his former clients’
cases are handled. If he does provide paralegal services, he must do so under the direct
supervision of a lawyer approved by this Court who is not representing any of Montoya’s
former clients. Such an attorney must notify the Office of Disciplinary Counsel that the
attorney is retaining Montoya and that the attorney will act as a supervisor.

{59} If Montoya is reinstated after a year, he will be on supervised probation, under the
supervision of a lawyer approved by this Court. This Court will approve a supervising
attorney and Montoya will be obligated to compensate the supervising attorney for time
spent providing supervision. Montoya and the supervising attorney will be required to meet

14
no less than once per month. Montoya will be required to accept instruction and direction
from his supervisor, including directives related to the handling of trust accounts,
maintenance of records, files and calendars, management methods, and caseload. Montoya
will have to limit his caseload as determined prudent by his supervisor. The supervisor will
submit quarterly reports to disciplinary counsel and thirty days before the end of the
probationary period will report whether Montoya has satisfactorily complied with the terms
of his probation.

{60} The ABA Standards for Imposing Lawyer Sanctions (2005) (ABA Standards) provide
that sanctions should be applied based on a consideration of the ethical duty a lawyer has
violated (duty to client, duty to public, duty to legal system, and duty to profession), the
lawyer’s mental state (intentional, knowing, or negligent), the extent of the actual or
potential injury caused by the lawyer’s misconduct, and aggravating or mitigating
circumstances. ABA Standards Rule II, at 9. All these considerations played into Montoya’s
prescribed discipline. The earlier portion of this Opinion summarizes Montoya’s numerous
professional conduct violations. We now turn to the other factors: mental state, actual and
potential injury, and mitigating factors. In addition, it is important that the discipline in this
case be congruent and proportional to discipline applied in other, similarly situated cases.

{61} In regard to mental state, some of Montoya’s infractions were at least knowing, while
for others we have no evidence that they were more than negligent. In the state cases,
disciplinary counsel has represented that there is no evidence that Montoya’s actions were
intended to defraud either his clients or GAL. Some of Montoya’s violations, such as candor
to the court, must have been knowing by their very nature.

{62} In terms of injury, Montoya caused injury or potential injury to his clients, to the
legal system, and to the profession. In the state cases, Montoya’s actions primarily caused
financial injury to Son and general injury to the legal system. There is some evidence of
restitution by Montoya to Son, the financially injured party in the state cases. A legal
malpractice lawsuit on behalf of Son resulted in a confidential financial settlement, which
GAL believes is in an amount that would make Son whole. Thus, the remaining injury in
the state cases was to the administration of justice, in that Montoya lied to the courts, wasted
the court’s time, made a mockery of the legal system, and required GAL to investigate his
conduct. In the federal cases, Montoya primarily caused injury to the administration of
justice by making late filings, frivolous filings, and misrepresentations to the court. He also
potentially injured clients. Although it is not clear if any of the clients in the federal cases
had meritorious claims, at a minimum, their injuries were the time and any resources lost by
hiring Montoya.

{63} Absent aggravating or mitigating circumstances, the ABA Standards generally
recommend reprimand or, at most, suspension for negligent conduct. See generally ABA
Standards §§ 4.13, 4.23, 4.33, 4.42(b), 4.43, 4.53(b), 4.63, 6.13, 6.23, 6.33, 7.3, 8.3(a), at 17-
25. In regard to conflicts of interest, suspension is appropriate if the lawyer knows of the
conflict, does not disclose the possible effect of the conflict, and causes injury to a client.

15
Reprimand is appropriate if the lawyer is negligent in determining conflicts of interest and
causes injury to a client. Id. § 4.33, at 18. Disbarment for creating a conflict of interest is
only recommended in three circumstances. It is recommended when the conflict is created
to benefit the lawyer or another and causes the client serious or potentially serious injury.
Disbarment is also recommended when the information obtained through the conflict is
knowingly used to benefit the lawyer or another and causes serious or potentially serious
injury to the client. Id. § 4.31(a)-(c), at 17-18.

{64} Disbarment is also appropriate when an attorney knowingly makes false statements
to a court with the intent to deceive and causes a significant, or potentially significant, injury
to a party or adverse effect on the legal proceeding. Id. § 6.11, at 22. Suspension, by
contrast, is appropriate if the misrepresentation is knowingly made but not necessarily with
the intent to deceive and causes injury, or potential injury, to the client or legal proceeding.
Id. § 6.12, at 22. We note that for lack of diligence, negligence is enough for disbarment if
the lawyer’s neglect causes serious, or potentially serious, injury to a client. Id. § 4.41(c),
at 18.

{65} This case presents several mitigating and aggravating factors. Most important, there
was no evidence that dishonest or selfish motivations inspired Montoya’s actions. See id.
§ 9.32(b), at 27 (absence of dishonest or selfish motives is a mitigating factor). There is
some evidence that Montoya had sudden and significant health issues around the time of
many of his infractions that affected his ability to handle his caseload. See id. § 9.32(h), at
28 (physical disability is a mitigating factor), § 9.32(c), at 27 (personal or emotional
problems are mitigating factors). Prior to the violations described herein, Montoya had no
disciplinary record. Id. § 9.32(a), at 27 (no prior record is mitigating factor). Yet, he
committed all these infractions after practicing law since 1985, when he certainly should
have known better. See id. § 9.22(i), at 27 (substantial experience in practice of law is an
aggravating factor). In addition, in the state cases, Son was a vulnerable victim to
Montoya’s negligence. See id. § 9.22(h) (vulnerability of a victim is an aggravating factor).
The number and variety of infractions is also an aggravating factor. See id. § 9.22(d)
(multiple offenses is an aggravating factor).

{66} It is important to this Court that we apply discipline in a fair and consistent manner.
Disciplinary counsel cited In re Cooley, No. 30,345 (May 18, 2007) (unpublished) as an
example of a recent case in which this Court responded to similar infractions with discipline
proportional to the discipline agreed upon in this case. Cooley admitted to a number of
varied violations of the Rules of Professional Conduct, including violations regarding
mismanagement of his trust account, including disbursements to himself without known
purposes; counts of incompetent representation; engaging in conduct prejudicial to the
administration of justice, including an outburst in court that interrupted a trial and confused
a jury and a missed hearing scheduled by the court; and various other infractions.

{67} A settlement agreement with Cooley provided for a two-and-a-half-year suspension,
with one year of actual suspension and the remainder deferred in favor of probation. Cooley

16
was required to abstain from alcohol and controlled substances during his probation and to
undergo random alcohol and drug testing. Upon reinstatement, which would occur
automatically if no conditions during suspension were violated, the agreement provided that
Cooley would undergo an 18-month supervision period, during which he would continue
random drug and alcohol testing and a monitoring agreement with the Lawyers Assistance
Committee of the New Mexico State Bar.

{68} Like Montoya, Cooley had numerous and varied violations of the Rules of
Professional Conduct of varying degrees of severity. Unlike Montoya, we hinged Cooley’s
reinstatement upon his successful abstention from alcohol and other drugs, among other
things. Because we do not know whether Montoya’s indiscretions are curable with time or
treatment, and because his infractions are, on balance, more serious, we opted for a non-
automatic reinstatement and a longer probationary period in his case.

CONCLUSION

{69} For the foregoing reasons, we accept the consolidated agreement of disciplinary
action against Montoya, as amended.

{70} IT IS SO ORDERED.

_____________________________________
CHARLES W. DANIELS, Chief Justice

_____________________________________
PATRICIO M. SERNA, Justice

_____________________________________
PETRA JIMENEZ MAES, Justice

_____________________________________
RICHARD C. BOSSON, Justice

EDWARD L. CHÁVEZ, Justice (recused)

Topic Index for In re Dennis W. Montoya, Docket No. 32,397

AT ATTORNEYS
AT-AG Attorneys, General
AT-CI Conflict of Interest
AT-DA Disciplinary Action
AT-PR Professional Responsibility
AT-RU Rule 11 Sanctions
AT-UP Unauthorized Practice

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CD CHILDREN
CD-CG Children, General

CP CIVIL PROCEDURE
CP-FV Frivolous Complaint
CP-SA Sanctions
CP-VN Venue

CR CIVIL RIGHTS
CR-AD Age Discrimination

DR DOMESTIC RELATIONS
DR-AD Adoption
DR-CM Common Law Marriage
DR-GI Guardians ad Litem
DR-VM Validity of Marriage

JG JUDGES
JG Judges, General
JG Judicial Authority
JG-DS Disqualification

18