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The state Supreme Court ordered the indefinite suspension of the law license of Albuquerque attorney Victor Marshall on Wednesday for accusations he made in challenging the impartiality of a former Court of Appeals judge in a major water rights case in 2009.
The justices delivered their ruling after hearing arguments from Marshall, his attorney and from a lawyer for the state disciplinary counsel, Jane Gagne, who said Marshall’s allegation about Judge James Wechsler “strikes at the heart of the integrity of the judiciary.”
“There’s absolutely no evidence in the record to support any of Mr. Marshall’s allegations against Judge Wechsler,” she added.
Gagne told the court that Marshall’s indefinite suspension would be for at least one year, after which he could reapply for reinstatement of the New Mexico law license he has had since 1975. He also is required to complete four hours of ethics training.
Marshall told the justices he had been on a “search for the truth” after hearing rumors at the state Legislature in 2018 that Wechsler had once worked for the Navajo Nation, which Marshall claimed had reaped the benefits of a Wechsler-approved settlement of water rights adjudication in the San Juan River Basin of northwest New Mexico. It turned out that Wechsler worked for a legal services agency on the Navajo reservation in the early 1970s, not the Navajo Nation. Wechsler later contended he had no conflict requiring recusal because he never worked on the water case, but Marshall said the judge as an attorney represented about 1,000 Navajo members during his three years at DNA Legal Services.
The justices, in questioning the attorneys Wednesday, took special umbrage at Marshall’s statement in an emergency motion filed once he learned of Wechsler’s prior employment. Marshall had been representing non-Indian water users at the time.
Given that the judge never disclosed his prior employment after being appointed as a pro tem judge on the water case, Marshall’s motion that sought discovery about the rumor stated that “the public might reasonably wonder whether the judge fixed this case for his former client.”
“One of the concerns I have is not so much that Mr. Marshall made a claim that Judge Wechsler had a conflict, but the way that he made it,” said Justice Julie Vargas during the oral argument session. She said Marshall was accusing the judge of things “that there’s no evidence of.”
Justice Briana Zamora echoed those concerns, adding, “I’m not suggesting your client shouldn’t have inquired into the issue; it’s how he handled it when he found out about these rumors.”
Marshall told the court his knowledge of the facts was incomplete at the time, and he wanted more information, hoping the case would be sent back to district court for discovery. But that didn’t happen.
“The situation came about because the required disclosure were not made years before, they should have been made and (under the law) it’s a judge’s duty to make the disclosure and if those disclosures were made years ago none of us would be here,” Marshall said.
Under the New Mexico Code of Judicial Conduct, a judge shall disqualify himself or herself in any proceeding in which the judge’s impartiality might reasonably be questioned.
Marshall also told the court that he never stated that Wechsler “fixed the case,” but only wrote that the public might reasonably wonder if the case was fixed.
His attorney Jeff Baker told the court, “I will acknowledge the way Mr. Marshall phrased that hypothetical question was inartful. I think he could have phrased it differently and more gently if you will.”
Gagne said “no reasonable attorney” would have made the same “reckless” allegations against a judge under the circumstances.
She changed her initial recommendation for a public censure to an indefinite suspension because she said Marshall has continued to repeat the allegations “and there’s no indication Mr. Marshall has learned from the experience.”
Baker told the court before its ruling that suspension was “too punitive,” and in his experience, is typically reserved for lawyers who steal money from their clients, the government, third parties or in cases of domestic violence.
“I’m not aware of anybody being suspended because they were disrespectful to a judge,” Baker said.
At one point, Chief Justice Michael Vigil asked Marshall “do you see any way in your heart to say you are sorry for having created that situation?”
Marshall said he had “great respect” for Wechsler, and he “sincerely regrets this situation,” which he called an embarrassment and traumatic for all parties.
But Marshall added, “I had to do what every lawyer should do … and to raise the question. I could have expressed it differently. The substance would have been the same.”