Lipe v. Albuquerque Public Schools et al

Filing 89

ORDER denying 77 Motion to Raise Potential Conflict of Interest by Magistrate Judge Jennifer M. Rozzoni (kms)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
TATIA LIPE,
Plaintiff,
v.

1:23-cv-00899-GBW-JMR

ALBUQUERQUE PUBLIC SCHOOLS and
NEW MEXICO DEPARTMENT OF PUBLIC
EDUCATION,
Defendants.
ORDER DENYING MOTION TO RAISE POTENTIAL CONFLICT OF INTEREST
THIS MATTER comes before the Court on plaintiff’s Motion to Raise Potential Conflict
of Interest. Doc. 77. Defendant Albuquerque Public Schools (APS) filed a response. Doc. 86.
Plaintiff did not reply. Having reviewed the briefing and the relevant law, the Court hereby
DENIES plaintiff’s motion without prejudice.
In the motion, plaintiff states that she has “a significant concern regarding Defendant
APS’s legal representation by the firm Cuddy & McCarthy, which previously represented the
New Mexico Department of Public Education (PED) in this same matter.” Doc. 77 at 1. Plaintiff
argues that the representation “raises a potential conflict of interest that warrants the Court’s
review and appropriate action.” Id.
As background, APS first appeared in this action through then-counsel Renni Zifferblat
of Robles, Rael and Anaya, P.C. on November 29, 2023. Doc. 4. On March 1, 2024, PED first
appeared through Scott P. Hatcher and Emma D.B. Weber of Cuddy and McCarthy, LLP. Doc.
13. On September 5, 2024, the Court involuntarily dismissed PED from this action. Doc. 48.
Then, on December 9, 2024, Ms. Zifferblat filed an Unopposed Motion for Withdrawal and
Substitution of Counsel for Defendant Albuquerque Public Schools. Doc. 62. The Court granted

the motion allowing Karen Kilgore and Laura M. Castille of Cuddy and McCarthy, LLP to
substitute in as counsel for APS. Doc. 63.
The United States District Court for the District of New Mexico has adopted the New
Mexico Rules of Professional Conduct. D.N.M.LR-Civ. 83.9. There are two New Mexico Rules
of Professional Conduct that are relevant here. First, Rule 16-110 instructs:
While lawyers are associated in a firm, none of them shall knowingly represent a
client when any one of them practicing alone would be prohibited from doing so by
Rules 16-107 or 16-109 NMRA of the Rules of Professional Conduct . . . .
N.M. R. Pro. Conduct 16-110. Second, Rule 16-109(A) requires:
A lawyer who has formerly represented a client in a matter shall not thereafter
represent another person in the same or a substantially related matter in which that
person’s interests are materially adverse to the interests of the former client unless
the former client gives informed consent, confirmed in writing.
N.M. R. Pro. Conduct 16-109(A). Accordingly, a lawyer at a law firm may not represent a client
if another lawyer in the same firm has represented a different client in the same case and the two
clients’ interests are “materially adverse,” to one another—unless the former client consents in
writing.
In this case, the briefing is insufficient for the Court to determine whether a conflict of
interest exists.
As a threshold matter, it is unclear whether plaintiff has standing to assert a conflict of
interest on PED’s behalf. “As a general rule, courts do not disqualify an attorney on the grounds
of conflict of interest unless the former client moves for disqualification.” In re Yarn Processing
Patent Validity Litigation, 530 F.2d 83, 89 (5th Cir. 1976) (string citation omitted). Neither party
addresses whether plaintiff has standing to bring this motion.
Assuming that plaintiff does have standing, neither party briefed the dispositive issue. See
Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005) (“[T]he court
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cannot take on the responsibility of serving as the litigant’s attorney in constructing arguments. .
. .”). Undeniably, Cuddy and McCarthy, LLP represented both APS and PED in this case. The
dispositive question, then, is whether APS’s and PED’s interests are “materially adverse.” See
N.M. R. Pro. Conduct 16-109(A). Or, alternatively, whether PED provided written, “informed
consent,” for Cuddy and McCarthy, LLP to represent APS in this case. Id. Neither party makes
any argument or presents any evidence as to these points.
Instead, plaintiff declares: “The interests of PED and APS are not entirely aligned.”
Doc. 77 at 2; see also Tapia v. City of Albuquerque, 10 F. Supp. 3d 1171, 1205 (D.N.M. Mar. 31,
2014) (“[T]he mere assertion that differing interests may arise is not sufficient to require
disqualification of counsel.”) (citation omitted). But she does not explain in what way. Plaintiff
writes that PED, “remains implicated in the underlying factual matrix, which raises concerns that
privileged information from PED’s defense may be used to benefit APS.” Id. However, PED’s
involvement in the “underlying factual matrix” of this case does not in and of itself mean that
PED and APS’s interest are materially adverse.
APS, in turn, does not argue the merits of the motion at all. It does not clarify whether a
conflict of interest exists. Rather, APS argues—without supporting citation—that plaintiff
waived the opportunity to object to Cuddy and McCarthy, LLP representation by not opposing
the Motion for Withdrawal and Substitution of Counsel for Defendant Albuquerque Public
Schools (Doc. 62). However, if a conflict of interest does exist, defense counsel is not absolved
of their ethical duties because opposing counsel failed to oppose the motion for substitution of
counsel. Next, APS argues that plaintiff has not shown that the “firm was privy to confidential
and privileged information.” But that argument is irrelevant because neither party disputes that
an attorney-client relationship existed between PED and Cuddy and McCarthy, LLP. See Cole v.
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Ruidoso Mun. Schools, 43 F.3d 1373, 1384 (10th Cir. 1994) (using whether a party “submitted
confidential information to a lawyer” as a factor in determining whether an attorney-client
relationship exists). APS’s briefing fails to provide the Court with sufficient information to
determine whether there actually is a conflict of interest.
Because neither party briefed the dispositive issues, the Court hereby DENIES plaintiff’s
motion (Doc. 77) without prejudice. See FED. R. CIV. P. 7(b)(1)(B) (A motion must “state with
particularity the grounds for seeking the order.”); see also Garrett, 425 F.3d at 840.
The Court cautions plaintiff against refiling without a sufficient legal and factual basis for
alleging that a conflict exists. Funplex Partnership v. F.D.I.C., 19 F. Supp. 2d 1201, 1206 (D.
Colo. Aug. 20, 1998) (“The party seeking disqualification under Rule 1.9 must provide the court
with specific facts to show that disqualification is necessary[,] and he cannot rely on speculation
or conjecture.”) (citation omitted).

__________________________________
JENNIFER M. ROZZONI
United States Magistrate Judge

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