Khan v. Barela et al

Filing 145

MEMORANDUM OPINION AND ORDER by Magistrate Judge Stephan M. Vidmar DENYING 142 Plaintiff's Motion to Disqualify Counsel. (rcf)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
ERIK KHAN,
Plaintiff,
v.

No. 15-cv-1151 MV/SMV

CHRIS BARELA, BOARD OF COUNTY
COMMISSIONERS OF DOÑA ANA COUNTY,
ARAMARK CORPORATION,
BILL STICKLES, and DAVID BEAM,
Defendants.1
MEMORANDUM OPINION AND ORDER
THIS MATTER is before the Court on the Plaintiff’s Motion to Disqualify
James A. Martinez and the law firm of Mounce, Green, Myers, Paxson, Safi, and Galatzon, P.C.
from the Case for Unprofessional Conduct and Conflict of Interest [Doc. 142], filed on March 29,
2021. Defendants2 responded on April 12, 2021. [Doc. 143]. Plaintiff’s reply was docketed on
May 10, 2021. [Doc. 144]. Having considered the parties’ submissions, the record, and the
relevant law, and being otherwise fully advised in the premises, I find that Plaintiff has failed to
establish a compelling reason to disqualify counsel. Therefore, the Motion will be denied.

1

This caption reflects the Defendants listed in the Third Amended Complaint, except that Plaintiff substituted
Defendant David Beam for the John Doe Defendant on June 24, 2020. [Docs. 100, 109]. Moreover, Defendants
Bill Stickles and David Beam were dismissed as parties on November 6, 2020. [Doc. 133]. Finally, in its Motion to
Dismiss, Defendant Aramark states that its proper name is “Aramark Correctional Services, LLC.” [Doc. 123].
2
Plaintiff’s Motion seeks to disqualify counsel for Defendants Chris Barela and Board of County Commissioners of
Doña Ana County. [Doc. 142] at 1. Thus, “Defendants” refers to those two county Defendants.

Background
In this case, Plaintiff brought constitutional claims against multiple Defendants, including
multiple county Defendants and two chaplains. See generally [Doc. 100]. At all relevant times, the
chaplains were represented by Attorney James Martinez of the law firm Mounce, Green, Myers,
Paxson, Safi, and Galatzon. See [Doc. 112] at 16. Plaintiff settled with the chaplains and agreed to
dismiss the claims against them. [Doc. 130]; [Doc. 133]; [Doc. 142] at 2. The settlement
agreement required Plaintiff to sign a Release of All Claims and Confidentiality Agreement, which
he did. [Doc. 142-1] at 2–8. The Release purports to prohibit “the parties” from disclosing the
terms of the settlement, although no one other than Plaintiff signed the Release. Id. at 4–5, 8.
After the claims against the chaplains were dismissed, Plaintiff received a letter from
Attorney Martinez, stating that he would be taking over representation of the county Defendants.
Id. at 3. The letter also made Plaintiff a settlement offer on behalf of the county Defendants, with
the exact same terms and for the exact same amount as the settlement with the chaplains. Id.
Plaintiff claims that Attorney Martinez and his firm should be disqualified from representing the
county Defendants in this matter because: (1) he disclosed confidential information to the county
Defendants, which violated the terms of the settlement and constitutes unprofessional conduct; and
(2) representation of the county Defendants presents a conflict of interest.
Legal Standard
The Supreme Court has recognized that federal courts have certain implied powers that
“are necessary to the exercise of all others.” Chambers v. NASCO, Inc., 501 U.S. 32, 43 (1991)
(quoting United States v. Hudson, 11 U.S. 32, 34 (1812)) (internal quotation marks omitted). For
example, “Courts of justice are universally acknowledged to be vested . . . with power to impose

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silence, respect, and decorum, in their presence, and submission to their lawful mandates.” Id.
(quoting Anderson v. Dunn, 19 U.S. 204, 227 (1821)). “These powers are ‘governed not by rule or
statute but by the control necessarily vested in courts to manage their own affairs so as to achieve
the orderly and expeditious disposition of cases.’” Id. (quoting Link v. Wabash R. Co., 370 U.S.
626, 630–31 (1962)). A court’s inherent powers must be exercised with restraint and discretion
because “of their very potency.” Id. “The authority of federal courts to disqualify attorneys derives
from their inherent power to preserve the integrity of the adversary process.” Hempstead Video,
Inc. v. Inc. Vill. of Valley Stream, 409 F.3d 127, 132 (2d Cir. 2005) (internal quotation and citation
omitted).
Discussion
The local rules for the United States District Court for the District of New Mexico state:
“The Rules of Professional Conduct adopted by the Supreme Court of the State of New Mexico
apply except as otherwise provided by local rule or by Court Order.” D.N.M.LR-Civ. 83.9. The
Court will therefore look to the New Mexico Rules of Professional Conduct. An attorney’s
violation of the Rules of Professional Conduct does not necessarily warrant disqualification from
representing a client in pending litigation. Rather, the penalty for a violation is typically
disciplinary proceedings. See Scope, Rules of Prof. Conduct, NMRA (“Failure to comply with an
obligation or prohibition imposed by a rule is a basis for invoking the disciplinary process. . . .
[V]iolation of a rule does not necessarily warrant any other non-disciplinary remedy, such as
disqualification of a lawyer in pending litigation.”).
A party has a right to be represented by an attorney of his or her own choosing; however,
that right is not absolute. Sanders v. Rosenberg, 1997-NMSC-002, ¶ 9. The Court may reject a

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party’s chosen counsel if a compelling reason exists that supports the disqualification of counsel.
Id. “[T]he burden of establishing that counsel should be disqualified lies with the party seeking
disqualification.” Roy D. Mercer, LLC v. Reynolds, 2013-NMSC-002, ¶ 23 (quoting Mitchell-Carr
v. McLendon, 1999-NMSC-025, ¶ 39).
Plaintiff argues that Defendants’ counsel violated Rule 16-307(A), which states that “[a]
lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness.”
(emphasis added). The Court has discretion to disqualify a party’s chosen counsel when the
counsel is a necessary witness under Rule 16-307. Sanders, 1997-NMSC-002, ¶ 9. However,
disqualification of an attorney for violation of Rule 16-307 is not warranted unless the party
seeking disqualification can establish that (1) “the attorney’s testimony is material to an issue in
the case,” (2) “the evidence to be elicited from the attorney’s testimony is not available from
another source,” and (3) “the attorney’s testimony is potentially prejudicial to his client’s case.”
Chappell v. Cosgrove, 1996-NMSC-020, ¶ 13 (emphasis added). Here, Plaintiff has made no effort
to show that any of these conditions exist.
First, Plaintiff argues for disqualification under Rule 16-307 because Attorney Martinez
might be called as a witness in a different lawsuit. [Doc. 142] at 4–5 (referencing Khan v. Good
News Jail & Prison Ministry, No. 21-cv-0289 MV/LF). Plaintiff offers no authority, and the Court
is aware of none, suggesting that an attorney may be disqualified in one case because he might be
a material witness in another case. Second, Plaintiff seems to be arguing that the Rule operates to
disqualify counsel because (as Plaintiff speculates) representatives of Good News Jail and Prison
Ministry—his former clients’ employer—may be called to testify in this case. [Doc. 144] at 3 n.5.
However, that is not how the Rule works; the Rule applies when the attorney, not the client, is

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expected to be a witness.3 See Chappell, 1996-NMSC-020, ¶ 13. Plaintiff provides no argument
that Attorney Martinez would be a necessary witness in this case, which makes disqualification
based on Rule 16-307 unwarranted. See id.; Sanders, 1997-NMSC-002, ¶ 9.
Plaintiff also argues that Defendants’ counsel violated Rule 16-804(C) and (D)4 when he
agreed to represent the county Defendants and presumably disclosed the terms of the settlement
agreement, thus violating the confidentiality provision in the Release. [Doc. 142] at 4. In response,
Defendants argue that there is no evidence of any such disclosure. Thus, there is no evidence of
any actual misconduct, much less a significant violation or pattern of misconduct that would
constitute a compelling reason for disqualification. See Sanders, 1997-NMSC-002, ¶ 9. The Court
agrees in part. There is no evidence that counsel disclosed the terms of the prior settlement to
Defendants. But even if he did, and assuming that was a breach of the settlement agreement,
disqualification would not be the appropriate remedy. Disqualification of an attorney is a “drastic
measure and a court should hesitate to impose it except where necessary.” Bolden v. United States,
353 F.3d 870, 875 (10th Cir. 2003) (citation omitted). Thus, the Court will deny Plaintiff’s Motion
because he has not provided a compelling reason to disqualify counsel.5 See Sanders,
1997-NMSC-002, ¶ 9.

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Again, the Supreme Court of New Mexico has stated that the party seeking disqualification under Rule 16-307 has
the burden of establishing the necessity of an attorney’s testimony as a witness at trial, holding:
[A]n attorney may not be disqualified under Rule 16-307 absent a showing by the party seeking
disqualification that the attorney’s testimony is material to an issue in the case, that the evidence to
be elicited from the attorney’s testimony is not available from another source, and that the attorney’s
testimony is potentially prejudicial to his client’s case.
Chappell, 1996-NMSC-020, ¶ 13. Here, Plaintiff has made no effort to show that any of these conditions exist.
4
Rule 16-804(C)–(D) states that “[i]t is professional misconduct for a lawyer to . . . engage in conduct involving
dishonesty, fraud, deceit[,] or misrepresentation; [or to] engage in conduct that is prejudicial to the administration of
justice.”
5
Disqualification simply is not the remedy here. Plaintiff is free to seek a remedy based on the alleged violations of
Rules 16-307 and 16-804 by filing a complaint with the Disciplinary Board of the Supreme Court of New Mexico.

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Conclusion
IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED that Plaintiff’s
Motion to Disqualify James A. Martinez and Mounce, Green, Myers, Paxson, Safi, and
Galatzon, P.C. from the Case for Unprofessional Conduct and Conflict of Interest [Doc. 142] be
DENIED.
IT IS SO ORDERED.
_______________________________
STEPHAN M. VIDMAR
United States Magistrate Judge

See https://nmdisboard.org/. Plaintiff is also free to seek a remedy through a separate action for violation of the terms
of the settlement, which he has already initiated. See Khan v. Good News Jail & Prison Ministry, No. 21-cv-0289
MV/LF.

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