Patrick J. Rogers


Crossposted at Oxdown Gazette.

Patrick J. Rogers is the New Mexico attorney who represents and advises the Republican Party of New Mexico on its voter suppression efforts. I have documented from the public record Mr. Rogers’ conduct that violates the New Mexico Rules of Professional Conduct. Unfortunately, the state bar system requires that a formal complaint be filed to begin a formal investigation, but you don’t need to be a resident of the state or even involved in the matter to file a grievance. Anyone can file one, but a grievance can’t be filed online, so I’ve simplified the process as much as possible. If you agree, you can easily file a grievance against Mr. Rogers with the State Bar of New Mexico in three simple steps:

  1. Print, complete and sign the official Form for Complaint against a Lawyer in New Mexico;
  2. Print and attach this page to the Complaint Form as the factual basis for the claim; and
  3. Mail the complaint to the address noted on the Complaint Form.

Personal Information:

  • Name: Patrick J. Rogers, Shareholder, Modrall Sperling
  • PO Box 2168, Albuquerque, NM 87103-2168
  • Telephone: (505) 848-1800
  • Fax: (505) 848-1891

Grievance Information: New Mexico

Introduction

Along with the privilege to practice law, each member of the State Bar of New Mexico, including Patrick J. Rogers, must also comply with the special duties and responsibilities that arise from that privilege. As described in the Preamble to the New Mexico Rules of Professional Conduct:

A lawyer is a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice.

* * *

A lawyer’s conduct should conform to the requirements of the law, both in professional service to clients and in the lawyer’s business and personal affairs. A lawyer should use the law’s procedures only for legitimate purposes and not to harass or intimidate others. A lawyer should demonstrate respect for the legal system and for those who serve it, including judges, other lawyers, and public officials. While it is a lawyer’s duty, when necessary, to challenge the rectitude of official action, it is also a lawyer’s duty to uphold legal process.

* * *

The legal profession’s relative autonomy carries with it special responsibilities of self-government. The profession has a responsibility to assure that its regulations are conceived in the public interest and not in furtherance of parochial or self-interested concerns of the bar. Every lawyer is responsible for observance of the Rules of Professional Conduct. A lawyer should also aid in securing their observance by other lawyers. Neglect of these responsibilities compromises the independence of the profession and the public interest which it serves. (Emphasis supplied.)

On October 17, 2008, Melanie Dabovich of the Associated Press reported that the “Republican Party of New Mexico alleges 28 people voted fraudulently in one Albuquerque state House district in the June Democratic primary.” After releasing the registration cards for “10 of the suspect voters[,]” Mr. Rogers, “an attorney who advises the state GOP, says the party plans to turn the suspect registration cards over to [state Attorney General Gary] King’s and [District Attorney Kari] Brandenburg’s offices.” ACORN investigated these claims and, as a result, “confirmed with the Bernalillo County Clerk that the voters in question were all legitimate” and that the voters identified by Mr. Rogers and his client were not engaged in the criminal conduct of ‘voter fraud’ but were, to the contrary, victims of false allegations of voting fraud.

Although his client, the Republican Party of New Mexico, officially distanced itself from making further allegations of voter fraud, Mr. Rogers continued to press the matter. Under the guise of conducting additional investigation of the baseless voter fraud allegations, Mr. Rogers retained a private investigator to conduct further ‘review’ of the voter fraud charges and supervised this investigator’s review of the voters he and his client had previously identified, even though each voter had been cleared of any wrongdoing.

Considering this conduct and the circumstances surrounding his conduct, as detailed more specifically below, Patrick J. Rogers has violated the following New Mexico Rules of Professional Conduct:

16-102. Scope of representation.
16-116. Declining or terminating representation.
16-401. Truthfulness in statements to others.
16-403. Dealing with unrepresented person.
16-404. Respect for rights of third persons.
16-503. Responsibilities regarding nonlawyer assistants.
16-802. Judicial and legal officials.
16-804. Misconduct.

Allegation: Patrick J. Rogers engaged in conduct designed to intimidate and harass New Mexican voters by retaining and supervising a private investigator to ‘investigate’ baseless allegations of voter fraud in violation of federal laws that prohibit voter intimidation.

On October 17, 2008, Melanie Dabovich of the Associated Press reported the activities of Patrick J. Rogers and his client, the Republican Party of New Mexico:

ALBUQUERQUE — The Republican Party of New Mexico alleges 28 people voted fraudulently in one Albuquerque state House district in the June Democratic primary.

Party representatives said at a news conference Thursday they found the suspect voters in a review of 92 newly registered voters in House District 13.

“We really have a bombshell — evidence of voter fraud in the 2008 primary in Albuquerque,” said State Rep. Justine Fox-Young, an Albuquerque Republican. “We are presenting undeniable proof that there was voter fraud in the June election.”

* * *

The Republicans released voter registration cards for 10 of the suspect voters, saying they showed missing or inaccurate Social Security numbers or birth dates.

In some cases, more than one voter was registered using the same Social Security number. In others, people who the Republicans said had no Social Security number on public record were registered.

* * *

Pat Rogers, an attorney who advises the state GOP, says the party plans to turn the suspect registration cards over to King’s and Brandenburg’s offices.

In response, Project Vote properly characterized these allegations as spurious:

ACORN and Project Vote launched back in a news conference call on October 10. “This is the third election cycle in a row where we’ve seen partisan interests take the same issue—which is canvassers trying to defraud ACORN by not doing their work and instead fabricating applications—and trying to exaggerate that and turn it into an argument that there is ‘widespread fraudulent voting’ going on,” said Project Vote executive director Michael Slater. “These allegations have been debunked now in several election cycles, and we’ll find by the end of this election cycle they’ll be debunked as well.”

The next day, October 18, 2008, the Associated Press again reported these baseless allegations:

ALBUQUERQUE —The community activist group ACORN fired back Saturday at New Mexico Republicans and their claims of voter fraud in June’s Democratic primary.

ACORN organizers said that since the vote-fraud charges were leveled by GOP leaders on Thursday, they have contacted four or five of the 28 allegedly “suspect” Albuquerque voters.

They said those voters confirmed that the allegations, including problems on voter registration forms like inaccurate Social Security numbers or birth dates, were simply wrong.

But State Republican Party representatives said only two voters out of 16 named in their investigation have come forward to deny the charges, and they stand by their assertion that voter fraud remains a problem in New Mexico. “The bottom line is that two out of 16 is not a good batting average,” said Pat Rogers, an attorney who advises the GOP.

* * *

Rogers said a private investigator hired by the state Republican Party found [Brittany] Rivera and others like her have Social Security numbers on their voter registration forms that are being used by other people. They may be legitimate voters and could be victims of identity theft.

* * *

However, the voters accused of the crime of voter fraud by Mr. Rogers and his client, the Republican Party of New Mexico, were, in fact, innocent of these charges. With the assistance of ACORN, these voters were able to prove their innocence of the charge of voter fraud. After “ACORN confirmed with the Bernalillo County Clerk that the voters in question were all legitimate,” the New Mexico Republican Party backed off their allegations of voter fraud. In spite of the fact that the voters identified by Mr. Rogers and his client were absolutely cleared of any impropriety by the Bernalillo County Clerk, Mr. Rogers and his private investigator continued to press the matter. Under the apparent guise of conducting additional investigation of the voter fraud allegations, and even though the named voters were cleared of any wrongdoing, Mr. Rogers continued to retain and supervise the services of Mr. Alfredo Romero to conduct additional ‘review’ of the voter fraud charges:

Among those who said she was blindsided and angered by the Republicans’ allegations was 18-year-old Brittany Rivera. At a news conference, she said she was at first scared to learn she’d been labeled as a “suspect” voter and her name and personal information had been forwarded to law enforcement. “You guys are trying to scare us new voters,” Rivera said of the GOP. “I think it’s wrong.”

According to Rivera and her mother, she accurately filled in and mailed her registration form on time after her mother picked up the paperwork for her at the nursing home where she works.

She said being targeted as a bogus voter is “crazy,” and she is now “more determined” to vote in the future. She said she planned to vote Saturday, when early voting began in New Mexico.

Group slams GOP ‘hacks’ over voting charges, Associated Press, October 18, 2008.

Several days later, on October 23, 2008, Gwyneth Doland reported in the New Mexico Independent that Mr. Rogers suddenly refused to either confirm or deny that he had hired an investigator in this matter:

ALBUQUERQUE – Republican Party attorney Pat Rogers refused to say Thursday if a private detective who visited the addresses of two of the 10 Albuquerque voters cited at a news conference last week about voter fraud was working for the GOP.

* * *

When asked by the New Mexico Independent if the private investigator worked for Rogers’ law firm, Rogers said, “I have no interest in responding to ACORN’s accusation.”

Reminded that the accusations came from the voters themselves, Rogers said, “You need not to accept what ACORN says.”

When asked the question again, Rogers said, ”I am not responding to any questions. I am not being quoted. This is off the record.”

However, the New Mexico Independent’s Gwyneth Doland confirmed that Mr. Rogers’ investigator had indeed continued to visit voters, including [name redacted] and Emily Garcia:

Guadalupe Bojorquez said a man who identified himself as a private investigator by the name of Al Romero visited the home of her 67-year-old mother on Wednesday.

“She calls me and she’s panicked because there is this man outside and he’s telling her he’s an investigator and he wants to come in to the house,” Bojorquez told NMI. She said her mother then put the man on the phone.

“I asked him, but he wouldn’t tell me who he worked for. He just said he wanted to verify that she was a legitimate voter and he wanted to see her documents. I told him ‘No,’ and we argued for a little bit.

“He said ‘You have to realize we’re just trying to protect the people, we just want to make sure that she’s a legitimate voter and if she votes and she’s not supposed to, then it’s illegal.’

“He was pressuring me so much that I told him that she’s not going to do anything until she speaks to her attorney.”

Bojorquez said she asked the man several times whom he worked for. Eventually, she said, “He told me he worked for Pat Rogers.”

Rogers is the Republican attorney who also made claims of voter fraud in 2004 and 2006. He was cited in the federal Department of Justice report about the firing of U.S. attorneys as one of the New Mexico GOP activists who complained to the Department of Justice about then-U.S. Attorney David Iglesias.

By law, private investigators are licensed by the state Regulation and Licensing Department. According to the department’s Web site, there is an Alfredo Romero who has a current private investigator license. In addition, three men named Albert or Alberto Romero have current security guard licenses.

Jenais Griego told NMI that she too had been visited by a private investigator on Wednesday. Her grandmother, Emily Garcia, was one of the people whom Republicans described last week as an ineligible voter.

“I asked him if he had a badge and he pulled out a white and blue laminate card with his name on it,” Griego. “It wasn’t even a badge, but it said ‘Al Romero, private investigator.’ He came in and he started asking me about my grandmother and I was trying to tell him that she didn’t live here. He’s like ‘OK, so let me just write some stuff down.’”

Griego said that Romero asked her questions about her grandmother’s voter registration card; her grandmother lives in a trailer down the street, but receives her mail at the house, she said.

“It freaked me out when he got upset, when I did tell him that, regardless of what happens, my grandmother is voting and it’s OK for her to vote.”

“He tried to tell me to tell her to be careful when she’s voting. He was trying to tell me stuff to scare her from voting.”

Bojorquez also said her mother felt wary about the visit.

“My mom is confused because she doesn’t understand why she’s being put through this because she voted. She doesn’t trust anybody anymore,” Bojorquez said, requesting that her mother’s name not be published again.

These visits by Mr. Rogers’ investigator were also confirmed by Zachary Roth at TPMMuckraker:

Minority voters in New Mexico report to TPMMuckraker that a private investigator working with Republican party lawyer Pat Rogers has appeared in person at the homes of their family members, intimidating and confusing them about their right to vote in the general election.

* * *

The visits to minority voters by the P.I. appear to be connected to last week’s effort.

* * *

Guadalupe Bojorquez, who works in law enforcement in Albuquerque, told TPMmuckraker today that her mother, [name redacted], was one of the ten voters whose names were released by the GOP. After this happened, said Bojorquez, her mother had been contacted by the voter registration group ACORN. Bojorquez, with ACORN’s help, confirmed with the county clerk that her mother, who does not speak English, is indeed eligible to vote, and had been when she voted in June.

Nonetheless, Bojorquez said that her mother yesterday received a visit from a man who asked for her personal information, including an ID, in reference to her eligibility to vote. Bojorquez told TPMmuckraker that according to her mother, at one point the man asked what she would do if immigration authorities contacted her.

After Bojorquez’s mother, frightened, refused to let him in the door, the man waited outside her house. Eventually, Bojorquez’s brother arrived at the house, emboldening Bojorquez’s mother to go outside, call Bojorquez, and put her on the phone with the man.

Bojorquez said the man told her he wanted to make sure her mother knew that she shouldn’t be voting, and continued to ask for her mother’s personal information. When Bojorquez said that no information would be handed over unless the man revealed who he was employed by, he said he was a private investigator hired by Pat Rogers. He told Bojorquez his name was Al Romero, and left a number at which Bojorquez could contact him.

Bojorquez added that in fact, her mother has already voted in the general election, by absentee ballot — which she is eligible for because she has trouble walking — so Romero’s efforts on that front were in vain.

Another Albuquerque woman had a similar experience.

Jenais Griego told TPMmuckraker that yesterday, as she arrived home with her kids, a man in a beige Chevy Silverado pulled up, removed a notebook from his pocket, and said he was looking for Emily Garcia. Garcia is Griego’s grandmother — Griego said Garcia, who works as a home care-giver, lists Griego’s address for her mail — and, like [name redacted], was one of the voters named by the GOP last week as having voted fraudulently in June.

Griego said she allowed the man in, and when she asked him for identification, he pulled out a card that gave his name as Al Romero. She said the man had a redacted copy of Garcia’s voter registration form, and asked whether Garcia intended to vote. He said if she intended to do so, she needed to make sure she was properly registered.

As with Bojorquez and [name redacted], Griego said that Garcia had already confirmed after the GOP press conference that she was indeed a valid voter. An ACORN worker had come to her house to explain that the GOP had questioned her registration, and, along with Griego, they had contacted the county clerk to ensure that she could legitimately vote, and had done so in June.

So when Romero asked Griego whether Garcia intended to vote, Griego replied that she did. At that point, said Griego, Romero became “angry” and “upset,” and left abruptly.

Rogers did not return several calls from TPMmuckraker seeking comment. But last week he said that the state party had hired a private investigator in connection with vote fraud*. And asked yesterday by the New Mexico Independent about the confrontations with voters, he replied: “I have no interest in responding to ACORN’s accusation.”

Reached by TPMmuckraker at the phone number he provided to Bojorquez, Romero said he didn’t have time to talk about the matter. He did not respond to repeated follow-up calls.

*This sentence has been corrected from an earlier version.

In response, Project Vote has requested that New Mexico U.S. Attorney Gregory Fouratt begin investigating these allegations of voter intimidation and vote suppression, including the intimidation of Ms. Rivera, Ms. [name redacted], Ms. Garcia and Mr. “Francisco Martinez, 19, who registered to vote for the first time when volunteers came to his high school in May. Mr. Martinez said Monday that he felt like he was being bullied and intimidated out of his rights as an American. ‘This is my first time voting, and it’s important to me to be part of history,’ Mr. Martinez said.” In his October 23, 2008, letter to U.S. Attorney Fouratt requesting the investigation, Project Vote Election Counsel Donald Wine II wrote:

We here at Project Vote, on behalf of several voters of the State of New Mexico write to request an investigation into increased efforts to intimidate voters and suppress minority voters by representatives of the New Mexico Republican Party.

Members of the New Mexico Republican Party called a press conference last week where they named 10 Albuquerque residents as frauds who they allege voted illegally in the New Mexico primaries. ACORN made contact with 8 of the 10 voters on that list distributed by the New Mexico Republican Party. All of the voters identify as Democratic, all are minorities (9 of the 10 are Latino), and most of them are 18 or 19 years old. One of the voters is a new citizen who was naturalized in 2007 and was voting for the first time. ACORN found that all of the voters they contacted are legitimate voters that were eligible to vote and had no problems with their registrations.

Now that the Republicans have found that the people they alleged were frauds were in fact legitimate voters, they have begun to intimidate these voters. Already, 2 of the 10 voters have been visited by a private investigator in an effort to keep these voters silent. Also, the fact that all 10 of the voters that were named on this list were minority voters, 9 of which are Latino, as well as mostly younger voters, indicates a concerted effort to suppress the vote of a particular class of voters.

This form of intimidation and suppression is in direct violation of Section 12 of the Voting Rights Act of 1965, as well as Section 2. We feel that the right of all Americans to vote is of the utmost importance, and if there is credible evidence of voter intimidation and suppression of a particular class of voters, it should be addressed and promptly prosecuted. We request that you conduct an immediate investigation into the attempts by the Republican Party of New Mexico to intimidate minority, first-time voters into not exercising their right to vote. To the extent that your investigation uncovers that any federal laws have also been violated, we ask that your office refer the matter to the proper federal authorities.

In addition to Mr. Wine’s allegations that Mr. Rogers’ and his investigator’s conduct violated federal law, Zachary Roth at TPMMuckraker also reports that Mr. Rogers’ and Mr. Romero’s conduct likely violates federal law:

Four separate experts on voting rights have confirmed to TPMmuckraker that the behavior of a private investigator apparently hired by a New Mexico Republican party lawyer, that we reported this morning, potentially violates federal voting laws.

Gerry Hebert, a former acting head of the voting rights section of the Department of Justice, told TPMmuckraker that the P.I.’s actions appear to violate the criminal section of the federal Voting Rights Act, which makes it a crime to willfully injure, intimidate, or interfere with a person attempting to vote. Hebert added that a separate statute makes it a crime to conspire to intimidate someone in exercising their right to vote — a provision that could apply to GOP lawyer Pat Rogers or others in the state party who may have been involved in the scheme.

“A matter like that ought to be reported to the DOJ immediately,” said Hebert, adding that he planned to do so.

Jon Greenbaum of the Lawyers Committee for Civil Rights agreed, and added that the activities detailed in TPMmuckraker’s report could violate both criminal and civil voting rights statutes. Greenbaum pointed to a civil provision of the Voting Rights Act which says that it violates the law to intimidate, threaten or coerce someone from voting or not voting.

Greenbaum too said he planned to pass on to the Department of Justice the claims made in our report.

Rick Hasen, a professor at Loyola Law School in Los Angeles and a noted expert on election law, also said that the behavior potentially violated the Voting Rights Act or other federal civil-rights statutes.

And Wendy Weiser, a voting-rights expert at the Brennan Center for Justice, further confirmed that take.

An Albuquerque woman told TPMmuckraker yesterday that a man identifying himself as a private investigator hired by Rogers came to her mother’s house Wednesday asking her mother for personal information and warning her not to vote if she wasn’t properly registered. A second woman in the same city provided a similar report to TPMmuckraker. The voters’ names had been publicly released last week by Rogers and others affiliated with the state party, who claimed that 28 mostly Hispanic people had voted fraudulently in June. It was later determined that many of the people whose names had been released were valid voters.

In spite of the evidence to the contrary, Mr. Rogers may claim that he has fulfilled his special responsibility for the quality of justice and may deny that he engaged in improper conduct or harbored improper motives. However, any such claims or denials are not determinative of whether or not he violated the law and the New Mexico Rules of Professional Conduct by using the law’s procedures to harass or intimidate others. Instead, whether he “actually supposed the fact in question to be true” or not, i.e., whether Mr. Rogers actually believes any denial of improper conduct, “may be inferred from circumstances” in which the alleged misconduct occurred. See Terminology, New Mexico Rules of Professional Conduct. Even if Mr. Rogers actually believed his actions were proper, that belief would only be reasonable if “the circumstances are such that the belief is reasonable.” However, because “a lawyer of reasonable prudence and competence would [have] ascertain[ed]” that Mr. Rogers’ conduct was improper, Mr. Rogers should have known he was acting unethically.

Specifically, the circumstances existing nationally quash any inference that Mr. Rogers may believe that his conduct was appropriate:

It’s worth noting, in response to the news that the FBI has launched an investigation into whether ACORN was involved in a nationwide voter-registration fraud scheme, that the launch of the probe comes at a time national Republicans at several different levels have sought to make an issue out of ACORN — in some cases calling for just such an investigation.

Last week, John McCain told a Florida crowd:

“There are serious allegations of voter fraud in the battleground states across America. They must be investigated.” The GOP standard-bearer has continued to sound the alarm over ACORN since then, and brought it up at last night’s debate.

GOP House leader John Boehner last week called in a statement for ACORN to be de-funded — it is currently eligible for federal housing funds — and charged that over the years, ACORN “has committed fraud on our system of elections, making American voters question the fairness and accuracy of the exercise of their most fundamental right under the Constitution.”

Last week the RNC held at least five separate conference calls with reporters to stoke fears of voter fraud connected to ACORN.

And numerous state- and local-level Republicans have also in the last few weeks called publicly for authorities to look into ACORN.

What’s Behind the Feds’ ACORN Probe?, Zachary Roth, TPMMuckraker, October 16, 2008.

Furthermore, the circumstances surrounding Mr. Rogers’ effort to suppress the vote in New Mexico in 2008 are nothing new. To the contrary, they are part of a multi-year, ongoing effort to challenge the voting rights of New Mexicans, as confirmed by Rep. John Conyers in his letter to United States Attorney General Michael Mukasey:

Mr. Rogers, however, appears repeatedly in the report on the U.S. Attorney firings, prepared by the Department’s Office of the Inspector General and Professional Responsibility, which documented his actions making flawed claims of voter fraud and bringing unwarranted pressure to bear on law enforcement officials, including Mr. Iglesias, in 2006.

On October 24, 2008, Zachary Roth at TPMMuckraker reported further on the circumstances surrounding Mr. Rogers’ conduct:

… Rogers’ role in pressing [fired U.S. Attorney David] Iglesias to pursue voter fraud prosecutions was extensive. According to the OIG report on the firings, Rogers set up a lunch meeting with Iglesias, and met with an FBI agent — among many other activities — to push the issue.

Perhaps most damagingly, the report contains a September 2004 email sent to Iglesias and several staffers for New Mexico’s GOP congressional delegation, in which Rogers admitted that he was interested in the issue in large part for its potential to help the GOP:

I believe the [voter] ID issue should be used (now) at all levels – federal, state legislative races and Heather [Wilson]’s race … You are not going to find a better wedge issue … I’ve got to believe the [voter] ID issue would do Heather more good than another ad talking about how much federal taxpayer money she has put into the (state) education system and social security … This is the single best wedge issue, ever in NM. We will not have this opportunity again … Today, we expect to file a new Public Records lawsuit, by 3 Republican legislators, demanding the Bernalillo county clerk locate and produce (before Oct 15) ALL of the registrations signed by the ACORN employee.

But Rogers is no mere local player on the Republican voter fraud team. He was on the board of the American Center for Voting Rights (ACVR), a fake think-tank which was little more than an effort by GOP operatives to offer an intellectual gloss to politically motivated claims of voter fraud — and which abruptly closed down operations in 2007.

ACVR was run by Mark “Thor” Hearne, who served as national election counsel to President Bush’s 2004 reelection campaign. Jim Dyke — who was the communications director of the Republican National Committee during the 2004 election, and went on to work for both the White House and for Vice President Cheney — was also involved.

Writing in Slate last year, election-law expert Rick Hasen described ACVR’s modus operandi:

Consisting of little more than a post-office box and some staffers who wrote reports and gave helpful quotes about the pervasive problems of voter fraud to the press, the group identified Democratic cities as hot spots for voter fraud, then pushed the line that “election integrity” required making it harder for people to vote. The group issued reports (PDF) on areas in the country of special concern, areas that coincidentally tended to be presidential battleground states. In many of these places, it now appears the White House was pressuring U.S. attorneys to bring more voter-fraud prosecutions.

Here’s Rogers, on behalf of ACVR, telling CNN back in 2004 about the need for “safeguards to make sure that citizens only are voting.”

And now this is the guy who’s involved in pushing voter fraud claims in connection with an investigation in which the FBI is already involved.

Clearly, the background and circumstances in this matter, however, do not permit the inference that Mr. Rogers believed his conduct was appropriate. Accordingly, Mr. Rogers has engaged in conduct that violates the following New Mexico Rules of Professional Conduct:

16-102. Scope of representation.

* * *

D. Course of conduct. A lawyer shall not engage, or counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent or which misleads the court, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.

* * *

16-116. Declining or terminating representation.

A. Mandatory disqualification. Except as stated in Paragraph C, a lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if:

(1) the representation will result in violation of the Rules of Professional Conduct or other law;

* * *

16-401. Truthfulness in statements to others.

In the course of representing a client a lawyer shall not knowingly:

A. make a false statement of material fact or law to a third person; or

B. fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 16-106.

16-403. Dealing with unrepresented person.

In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer’s role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding.

16-404. Respect for rights of third persons.

In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person.

16-503. Responsibilities regarding nonlawyer assistants.

With respect to a nonlawyer employed or retained by or associated with a lawyer:

A. a partner in a law firm shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that the person’s conduct is compatible with the professional obligations of the lawyer;

B. a lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person’s conduct is compatible with the professional obligations of the lawyer; and

C. a lawyer shall be responsible for conduct of such a person that would be a violation of the Rules of Professional Conduct if engaged in by a lawyer if:

(1) the lawyer orders or, with the knowledge of the specific conduct, ratifies the conduct involved ; or

* * *

16-804. Misconduct.

It is professional misconduct for a lawyer to:

A. violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another;

B. commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects;

C. engage in conduct involving dishonesty, fraud, deceit or misrepresentation;

D. engage in conduct that is prejudicial to the administration of justice;

* * *

H. engage in any conduct that adversely reflects on his fitness to practice law.

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Preamble — A Lawyer’s Responsibilities

A lawyer is a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice.

As a representative of clients, a lawyer performs various functions. As advisor, a lawyer provides a client with an informed understanding of the client’s legal rights and obligations and explains their practical implications. As advocate, a lawyer zealously asserts the client’s position under the rules of the adversary system. As negotiator, a lawyer seeks a result advantageous to the client but consistent with requirements of honest dealing with others. As intermediary between clients, a lawyer seeks to reconcile their divergent interests as an advisor and, to a limited extent, as a spokesperson for each client. A lawyer acts as evaluator by examining a client’s legal affairs and reporting about them to the client or to others.

In all professional functions a lawyer should be competent, prompt and diligent. A lawyer should maintain communication with a client concerning the representation. A lawyer should keep in confidence information relating to representation of a client except so far as disclosure is required or permitted by the Rules of Professional Conduct or other law.

A lawyer’s conduct should conform to the requirements of the law, both in professional service to clients and in the lawyer’s business and personal affairs. A lawyer should use the law’s procedures only for legitimate purposes and not to harass or intimidate others. A lawyer should demonstrate respect for the legal system and for those who serve it, including judges, other lawyers, and public officials. While it is a lawyer’s duty, when necessary, to challenge the rectitude of official action, it is also a lawyer’s duty to uphold legal process.

As a public citizen, a lawyer should seek improvement of the law, the administration of justice and the quality of service rendered by the legal profession. As a member of a learned profession, a lawyer should cultivate knowledge of the law beyond its use for clients, employ that knowledge in reform of the law and work to strengthen legal education. A lawyer should be mindful of deficiencies in the administration of justice and of the fact that the poor, and sometimes persons who are not poor, cannot afford adequate legal assistance, and should therefore devote professional time and civic influence in their behalf. A lawyer should aid the legal profession in pursuing these objectives and should help the bar regulate itself in the public interest.

Many of a lawyer’s professional responsibilities are prescribed in the Rules of Professional Conduct, as well as substantative and procedural law. However, a lawyer is also guided by personal conscience and the approbation of professional peers. A lawyer should strive to attain the highest level of skill, to improve the law and the legal profession and to exemplify the legal profession’s ideals of public service.

A lawyer’s responsibility as a representative of clients, an officer of the legal system and a public citizen are usually harmonious. Thus, when an opposing party is well represented, a lawyer can be a zealous advocate on behalf of a client and at the same time assume that justice is being done. So also, a lawyer can be sure that preserving client confidences ordinarily serves the public interest because people are more likely to seek legal advice, and thereby heed their legal obligations, when they know their communications will be private.

In the nature of law practice, however, conflicting responsibilities are encountered. Virtually all difficult ethical problems arise from conflict between a lawyer’s responsibilities to clients, to the legal system and to the lawyer’s own interest in remaining an upright person while earning a satisfactory living. The Rules of Professional Conduct prescribe terms for resolving such conflicts. Within the framework of these rules many difficult issues of professional discretion can arise. Such issues must be resolved through the exercise of sensitive professional and moral judgment guided by the basic principles underlying the rules.

The legal profession is largely self-governing. Although other professions also have been granted powers of self-government, the legal profession is unique in this respect because of the close relationship between the profession and the processes of government and law enforcement. This connection is manifested in the fact that ultimate authority over the legal profession is vested largely in the courts.

To the extent that lawyers meet the obligations of their professional calling, the occasion for government regulation is obviated. Self-regulation also helps maintain the legal profession’s independence from government domination. An independent legal profession is an important force in preserving government under law, for abuse of legal authority is more readily challenged by a profession whose members are not dependent on government for the right to practice.

The legal profession’s relative autonomy carries with it special responsibilities of self-government. The profession has a responsibility to assure that its regulations are conceived in the public interest and not in furtherance of parochial or self-interested concerns of the bar. Every lawyer is responsible for observance of the Rules of Professional Conduct. A lawyer should also aid in securing their observance by other lawyers. Neglect of these responsibilities compromises the independence of the profession and the public interest which it serves.

Lawyers play a vital role in the preservation of society. The fulfillment of this role requires an understanding by lawyers of their relationship to our legal system. The rules of Professional Conduct, when properly applied, serve to define that relationship.

Terminology

“Belief” or “Believes” denotes that the person involved actually supposed the fact in question to be true. A person’s belief may be inferred from circumstances.

“Consult” or “Consultation” denotes communication of information reasonably sufficient to permit the client to appreciate the significance of the matter in question.

“Firm” or “Law firm” denotes a lawyer or lawyers in a private firm, lawyers employed in the legal department of a corporation or other organization and lawyers employed in a legal services organization. See Comment, Rule 16-110.

“Fraud” or “Fraudulent” denotes conduct having a purpose to deceive and not merely negligent misrepresentation or failure to apprise another of relevant information.

“Knowingly”, “Known” or “Knows” denotes actual knowledge of the fact in question. A person’s knowledge may be inferred from circumstances.

“Partner” denotes a member of a partnership and a shareholder in a law firm organized as a professional corporation.

“Reasonable” or “Reasonably” when used in relation to conduct by a lawyer denotes the conduct of a reasonably prudent and competent lawyer.

“Reasonable belief” or “Reasonably believes” when used in reference to a lawyer denotes that the lawyer believes the matter in question and that the circumstances are such that the belief is reasonable.

“Reasonably should know” when used in reference to a lawyer denotes that a lawyer of reasonable prudence and competence would ascertain the matter in question.

“Substantial” when used in reference to degree or extent denotes a material matter of clear and weighty importance.

16-102. Scope of representation.

A. Client’s decisions. A lawyer shall abide by a client’s decisions concerning the objectives of representation, subject to Paragraphs C, D and E, and shall consult with the client as to the means by which they are to be pursued. A lawyer shall abide by a client’s decision whether to accept an offer of settlement of a matter. In a criminal case, the lawyer shall abide by the client’s decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify.

B. Representation not endorsement of client’s views. A lawyer’s representation of a client, including representation by appointment, does not constitute an endorsement of the client’s political, economic, social or moral views or activities.

C. Limitation of representation. A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent.

D. Course of conduct. A lawyer shall not engage, or counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent or which misleads the court, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.

E. Consultation on limitations of assistance. When a lawyer knows that a client expects assistance not permitted by the Rules of Professional Conduct or other law, the lawyer shall consult with the client regarding the relevant limitations on the lawyer’s conduct.

16-116. Declining or terminating representation.

A. Mandatory disqualification. Except as stated in Paragraph C, a lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if:

(1) the representation will result in violation of the Rules of Professional Conduct or other law;

(2) the lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client; or

(3) the lawyer is discharged.

B. Permissive withdrawal. Except as stated in Paragraph C, a lawyer may withdraw from representing a client if withdrawal can be accomplished without material adverse effect on the interests of the client, or if:

(1) the client persists in a course of action involving the lawyer’s services that the lawyer reasonably believes is criminal or fraudulent;

(2) the client has used the lawyer’s services to perpetrate a crime or fraud;

(3) a client insists upon pursuing an objective that the lawyer considers repugnant or imprudent;

(4) the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer’s services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled;

(5) the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client; or

(6) other good cause for withdrawal exists.

C. Representation required. When ordered to do so by a tribunal, a lawyer shall continue representation notwithstanding good cause for terminating the representation.

D. Orderly termination. Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee that has not been earned. The lawyer may retain papers relating to the client to the extent permitted by law, or the Rules of Professional Conduct.

16-401. Truthfulness in statements to others.

In the course of representing a client a lawyer shall not knowingly:

A. make a false statement of material fact or law to a third person; or

B. fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 16-106.

16-403. Dealing with unrepresented person.

In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer’s role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding.

16-404. Respect for rights of third persons.

In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person.

16-503. Responsibilities regarding nonlawyer assistants.

With respect to a nonlawyer employed or retained by or associated with a lawyer:

A. a partner in a law firm shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that the person’s conduct is compatible with the professional obligations of the lawyer;

B. a lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person’s conduct is compatible with the professional obligations of the lawyer; and

C. a lawyer shall be responsible for conduct of such a person that would be a violation of the Rules of Professional Conduct if engaged in by a lawyer if:

(1) the lawyer orders or, with the knowledge of the specific conduct, ratifies the conduct involved ; or

(2) the lawyer is a partner in the law firm in which the person is employed, or has direct supervisory authority over the person, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.

16-804. Misconduct.

It is professional misconduct for a lawyer to:

A. violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another;

B. commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects;

C. engage in conduct involving dishonesty, fraud, deceit or misrepresentation;

D. engage in conduct that is prejudicial to the administration of justice;

E. willfully violate the Supreme Court Rules on Minimum Continuing Legal Education or the New Mexico Plan of Specialization, or the board regulations promulgated under the authority of the rules or the plan;

F. state or imply an ability to influence improperly a government agency or official;

G. knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law; or

H. engage in any conduct that adversely reflects on his fitness to practice law.

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7 Responses

  1. e.m.,
    thank you for this. this is so disgusting to me. targeting innocent people and scaring them into not voting is so reprehensible. can these people sue the republican party? i would love to see the rethugs having to pay out big bucks to the people they are harassing. i think it’s the only thing that will make them stop. i don’t think they fear going to jail, because the rethugs in power will make sure they won’t serve a day behind bars.

  2. You’re absolutely right: it is disgusting. It’s also un-American.

    I suppose there may be a civil remedy under USC §1983 for violation of these voters’ civil rights. To my mind, though, the effect – to the attorney, at least – of loss of a license to practice law is the same, or worse, than if a jury orders the attorney to pay a judgment. Maybe even worse than going to jail.

    One big difference is that a criminal prosecutor, assuming she’s actually doing her sworn duty, can actively search for crimes and criminals even if nobody makes a formal complaint. The grievance procedures, however, require a formal complaint to be filed before they’ll act.

  3. e.m.,
    i don’t want the attorneys getting sued, i want the rethug party to get sued. i would love for the attorneys to be disbarred, but i want the main target to be the party.

  4. Non,

    I missed your point about suing the party itself. I was still focused on the attorney’s conduct and professional liability. The ACLU and others have filed at least 2 lawsuits in New Mexico. Maybe these will lead to some civil recovery for the voters. In the meantime, and from an activist standpoint, attorney grievances can be done without any capital costs or the need to hire an attorney to handle any litigation.

  5. […] Patrick J. Rogers […]

  6. […] Patrick J. Rogers […]

  7. I’ve been following the matter of the U.S. Attorney firings since it was first reported by TalkingPointsMemo. I have been impressed with the professional way Capt. David C. Iglesias has handled himself throughout this ordeal. His conduct has been a tribute to both himself as well as to the legal profession. I wrote about Capt. Iglesias’ interview with Prof. Horton here.

    I found it interesting that Scott Jennings wanted Patrick Rogers to replace Capt. Iglesias as U.S. Attorney. Frankly, Mr. Rogers is not qualified to be an attorney, let alone be a United States Attorney. Because of the latest document dump, my posts on Mr. Rogers have again been getting some attention, including this visit from Reuters:

    Domain Name (Unknown)
    IP Address 65.200.144.# (Reuters/Radianz)
    ISP Verizon Business
    Location
    Continent : North America
    Country : United States (Facts)
    State : New York
    City : New York
    Lat/Long : 40.7619, -73.9763 (Map)
    Language unknown
    Operating System Macintosh WinXP
    Browser Safari 1.3
    Mozilla/5.0 (Windows; U; Windows NT 5.1; en-US) AppleWebKit/530.5 (KHTML, like Gecko) Chrome/2.0.172.39 Safari/530.5
    Javascript disabled
    Time of Visit Aug 12 2009 2:47:07 pm
    Last Page View Aug 12 2009 2:47:07 pm
    Visit Length 0 seconds
    Page Views 1
    Referring URL
    unknown
    Visit Entry Page http://grievanceproj…28/patrick-j-rogers/
    Visit Exit Page http://grievanceproj…28/patrick-j-rogers/
    Out Click
    Time Zone unknown
    Visitor’s Time Unknown
    Visit Number 13,935

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