Editorial: Proposed discipline seems severe for lawyer's comments - Albuquerque Journal

Editorial: Proposed discipline seems severe for lawyer’s comments

The state Supreme Court is set to hear oral arguments today, Wednesday, as to whether a high-profile Albuquerque lawyer should be disciplined for alleging now-retired Court of Appeals Judge James J. Wechsler was biased in favor of the Navajo Nation in approving a major water rights settlement in 2013.

Victor Marshall stands to lose his license to practice law indefinitely after questioning the judge’s impartiality and making allegations a state disciplinary board hearing committee determined were false.

Marshall may well have crossed a line that lawyers are not allowed to cross in his comments about Judge Wechsler, especially given what information he had at the time.

Even in the zealous representation of a client, lawyers cannot make baseless accusations against a judge.

And some discipline may be warranted.

But this heavy-handed punishment goes too far and could have a chilling effect on how lawyers represent their clients and what information they relay to the media. The panel criticized Marshall for making his allegations in public pleadings and in a press release.

While criticizing judges without foundation is to undermine the integrity of our entire system of government, the public has to believe justice is blind and judges make sound rulings from a position of neutrality.

The N.M. Judicial Ethics Handbook states, “A biased judge deprives the parties of the fundamental right to an impartial tribunal. Even if the judge is not actually biased, the appearance of impropriety undermines the credibility of the judicial process.”

Marshall contends Wechsler didn’t disclose a previous relationship with the Navajo Nation before ruling in its favor. Marshall, who represented non-Indian water users, alleged Wechsler had an undisclosed conflict of interest because he once worked for the Navajo Nation.

Wechsler and the disciplinary board panel advising the Supreme Court say there was no conflict because Wechsler worked not for the Navajo Nation, but on behalf of individual Navajos when he worked as an attorney for DNA Legal Services in the early 1970s, and that he did not participate in water rights issues.

Marshall also claimed in a court record “the public might reasonably wonder whether the judge fixed this case for his former client.”

Wechsler’s ruling in 2013 recognized the Navajo Nation’s right to divert 635,729 acre-feet of water per year from the San Juan River. Wechsler also approved the settlement between the state and the Navajo Nation.

Using “fixed” is beyond the pale; but was Marshall wrong to point out Wechsler should have disclosed his prior work?

Marshall’s lawyer will surely argue if Wechsler had simply disclosed a previous relationship with Navajo clients at the outset of the 2009 case, Marshall could have at least attempted to seek the judge’s recusal.

And Marshall contends he should be allowed to use evidence he uncovered since his initial accusations that he says bolsters his claims. The Supreme Court has rejected looking at that new evidence.

Now a state disciplinary board panel is asking the Supreme Court to suspend Marshall’s license to practice law indefinitely. An attorney for the board recommended a lesser sanction — a public censure. Marshall’s attorney noted the Navajo Nation asked Wechsler to sanction Marshall but Wechsler decided not to.

Yes, words matter, and Marshall likely should face repercussions for his. But taking away his livelihood for an undetermined time is draconian.

This editorial first appeared in the Albuquerque Journal. It was written by members of the editorial board and is unsigned as it represents the opinion of the newspaper rather than the writers.

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