Petition for Writ of Certiorari — Guttman v. Widman (No. 06-351)

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No. 06-351SEP 6 - 2006

OFFICE OF THE CLERK

In The

Supreme Court of the Anited States

STUART T. GUTTMAN, M.D.,

Petitioner,

JOEL WIDMAN, individually and in his capacity as a

member of the New Mexico Supreme Court Disciplinary

Board; VIRGINIA L. FERRARA, individually and in

her capacity as a member of the New Mexico Supreme

Court Disciplinary Board; HERBERT M. SILVERBERG;

THE DISCIPLINARY BOARD, an Agent of the

New Mexico Supreme Court; and PATRICIA MADRID,

individually and in her capacity as

Attorney General of the State of New Mexico,

Respondents.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Tenth Circuit

PETITION FOR WRIT OF CERTIORARI

STUART T. GUTTMAN,

Petitioner Pro Se

Post Office Box 3370

Truth or Consequences, NM 87901

(505) 744-4756

QUESTION PRESENTED

Does Rule 17-304 entail an unconstitutional content

based restriction in keeping complaints involving attor-

neys confidential?

TABLE OF CONTENTS

Page

QUBSTION PHEGIIG iB veccvcnccoscsesseresereccesvecevcevaresenes i

pe ty, ESR iii

CF aE PUT vsticiilbiniensiinbiindieveibectalebbinemmadaasotnitn 1

FT IIT i csicssisiinesnicvisthnicinsipiibisigimpiaediaiecnicsidamabads 1

CONSTITUTIONAL AND STATUTORY PROVISIONS

BF Fa sitiacinitsicthanntinniccignilcdiiiasdantilentmimebianaaianian 1

STATEMENT OF THE CASE...............cccccsesccesereessreeees 2

REASONS FOR GRANTING THE WRIT..................... 4

I. THE ISSUE OF A FACIAL FREE SPEECH

CHALLENGE TO RULE 17-304 WASN’T

II. RULE = 7-304 VIOLATES THE UNITED

STATES -‘ONSTITUTION BECAUSE IT IS

CONTE®” BASED AND MERITS STRICT-

EE EEE Aictissennnsiiniinmbeninunnine 11

Ill. OTHER CIRCUITS HAVE OVERTURNED

CONTENT BASED REGULATIONS GOV-

ERNING ATTORNEY COMPLAINTS.............. ~ 412

IV. THE IMPORTANCE OF THE AUTHORITY

OF PETITION OF BROOKS, 140 N.H. 813

(1996), IN RELATION TO N.M.R.A. 17-304..... 14

V. THE RATIONALE FOR CONFIDENTIALITY

INVOLVING REGULATION 20(a) OF MIN-

NESOTA LAWYERS PROFESSIONAL RE-

SPONSIBILITY BOARD WITH SIMILARITY

Fr Fe eels EEE eecexcivivmstieseciseunnintommavitai 17

VI. RULE 17-105 DOES NOT APPLY TO THIS

Cee Se Bi ei ereh vactriscesvceneavinciictismenatineiions 20

FR IG sicssinsnccinmeswisebiodinenetueibrssiboninanaebiinie 20

lil

> TABLE OF AUTHORITIES

Page

CASES

Airport Commissioners v. Jews for Jesus, Inc., 482

i TIED ccidhiisecinsicitiesaidndtnasndsahinitinicssedebeaeenantareniania 8

Boos v. Barry, 485 U.S. 312, 108 S. Ct. 1157, 99

Bs es Be I iidccscsddcdebeidnsdisnimtnlindinbakidceatiibsoinbniaians 11

Broadrick v. Oklahoma, 413 U.S. 601 (1973) .......eceeeee 10

Burson v. Freeman, 504 U.S. 191 (1992) ........ eee eeee eee eee 6

Butterworth v. Smith, 494 U.S. 624 (1990).............0......2 16

Carroll v. President and Commissioners of Princess

SE, Fe ee Ae Cte rtstitnittninseniectceersctiepreminaivens 7

City of Los Angeles v. Preferred Communications,

Inc., 476 U.S. 488, 106 S. Ct. 2034 (1986).............0... 11

Doe v. Doe, 127 S.W. 3d 728 (Tenn. 2004)..............4.. 3, 8, 12

Doe v. Supreme Court of Florida, 734 F. Supp. 981

I I i isceibiaitccicksindacinihy tabtceinindbinsiubaenticniaanians 12, 19

Ex Parte Young, 209 U.S. 203 (1908) .......ccccssoccosessossescoreses 3

Faustin v. City and County of Denver, 423 F.3d 1192

EE: Gad cickicdiisnk gicasunidaets spdeiuiscenmenhitindanlintsabenile 6, 10

Fernandez-Wells v. Beauvais, 127 N.M. 487 (N.M.

I, Ses cecasioiniiis dinsdetasnsitiin-telensteabsielalindipsadesiicbbiecs «<table 3, 5, 10

Hawkins v. City and County of Denver, 17) F.3d

re ee es CN iieciienciecnhienceseetesiecs decenbciintaadconaeesbiies 10

Hoffman Estates v. Flipside, Hoffman Estates, 455

en IIE Gonsiss Adcsaeedannibadialetdacaaeebcecalenincatiincediea tines 9

Jordan v. Michael V. Pugh, 425 F.3d 820 (10th Cir.

“A estaba bia cath hal lt a a a 6,9

TABLE OF AUTHORITIES —- Continued

Page

Landmark Communications, Inc. v. Virginia, 435

Se ey Oe te Gr BI CI vccticccnisncvssercosvessicnvtvesoes 15

Lawrence v. Chater, 516 U.S. 163 (1996) .....0.....c. eee 7

Leech v. American Book Sellers Association. Inc.,

Re i Pe Ft C.F FD iitinstec re dcensdsecovediniestaneasivviives 8

Mills v. Alabama, 384 U.S. 214 (1966) o.oo eee cece eee 16

Nebraska Press Association v. Stuart, 427 U.S. 539

(2 SURGE E TE Mera EOE AR See SONDR CET OR Sore Ce OREN Sybre AS naey 7

Petition of Brooks, 140 N.H. 813, 678 A.2d 140

PII sais scniknss cc i coteddpandnisadeasbensarteobueabunmas 7, 12, 13, 14, 16

R.A.V. v. City of St. Paul, 505 U.S. 377 (1992)...............0008. 6

R.M. v. Supreme Court of New Jersey, et al., No. A-

a. Bi Me iinicsesecccisancdticnadteinilaminnipiaaepawesets 13

Texas v. Johnson, 491 U.S. 397, 109 S. Ct. 2533,

5 OE Gk, Rey een nin enn tens 11

Tory et al. v. Cochran, 544 U.S. 734, 125 S. Ct. 2108

PY vis cil saiies acid Wi vagubbien sdbnratenciocdaccainetetaiiesioniamedas 7, 20

United States et al. v. Playboy Entertainment Group

Inc., 529 U.S. 818, 120 S. Ct. 1889 (2000)}............0.0..0... 11

STATUTES

Oe Oe, Oa B Picssicsanscchdecucinenscsaacianmccuamaen cali 1

BT Pe idioma

Oe is PII nis vic ove cas ebdaccatcnadeammeationnsetieesvandeneeieeaes 20

De ek FI iitkkcitiin neice passim

8 OO” Sy § os [ne me pre Geman sn et ao Aa, 40, 20

PETITION FOR A WRIT OF CERTIORARI

Dr. Stuart T. Guttman respectfully petitions for a writ

of certiorari to review the judgment of the United States

Court of Appeals for the Tenth Circuit in this case.

OPINIONS BELOW

The opinion of the district court is reproduced at (App.

14). The court of appeals opinion is reproduced at (App. 1).

The denial of En Banc Rehearing review is reproduced at

(App. 28).

JURISDICTION

The court of appeals entered it final judgment on June

28, 2006 (App. 1) and denied its rehearing on July 28,

2006 (App. 28), this petition is filed within 90 days of that

date. This court has jurisdiction under 28 U.S.C. § 1254(1).

r —

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

42 U.S.C. § 1983 reads as follows:

“Every person who, under color of any statute,

ordinance, regulation, custom, or usage of any

State ... subjects, or causes to be subjected, any

citizen of the United States or other person

within the jurisdiction thereof to immunities se-

cured by the Constitution and laws, shall he li-

able to the party injured in an action at law, suit

in equity, or other proper proceeding for redress.”

Rule 17-304 N.M.R.A. 1995 provides that all investi-

gation conducted by Disciplinary Counsel shall be entirely

confidential unless the matters become public record by

the filing of formal specification of charges, filing of a

summary suspension proceeding; filing a reinstatement

proceeding or are otherwise released according to Rules

Governing Discipline.

STATEMENT OF THE CASE

Petitioners case asserts challenge to Rule 17-304 of

the New Mexico Disciplinary Bar and 42 U.S.C. § 1983 to

the violation of Free Speech by keeping complaints confi-

dential. The petitioner seeks certiorari to contest the lower

court’s conclusion that a Rule 17-304 which states:

“That any investigation and any investigatory

hearing conducted by or under the direction of

disciplinary counsel, or their authorized agents,

shall be entirely confidential” is not a violation of

petitioners and others free speech based on con-

tent based restriction.

On May 4, 2004 petitioner filed an Amended Civil

Complaint against the members of the New Mexico Disci-

plinary bar, and the Attorney General of New Mexico in

both their individual capacities, and as members of the

New Mexico Disciplinary Bar. (App. 31) In this enclosed

complaint, it was noted that Rule 17-304 (App. 48) that

governs confidentiality of investigations; exception; hear-

ings was a violation of the petitioners right Free Speech

under the First Amendment to the U.S. Constitution. In

the complaint, petitioner noted that the Disciplinary

Board advised plaintiff in writing that “with the exception

of forma! discipline an attorney’s disciplinary history, includ-

ing filed complaints, is confidential “besides monetary

damages, petitioner in his complaint requested Injunctive

Relief according to Ex-Parte Young, 209 U.S. 203 (1908).”

On August 9, 2005 the Federal District Court Judge

granted Summary Judgment stating that “plaintiff fails to

demonstrate conduct by any of the State Defendants

which violates his First Amendment Rights, and that

petitioner has failed to demonstrate how the confidential-

ity provisions within N.M.R.A. 17-304 violates the First

Amendment” yet, in his opinion the Federal District Court

Judge noted that in the case of Fernandez-Wells v. Beau-

vais, 127 N.M. 487 (N.M. App. 1999), a case cited by

defendants it is stated that “Rule 17-304 does not state

who must keep confidential the investigations and hear-

ings conducted by or under the direction of the disciplinary

counsel.” In the very same opinion the district court Judge

noted that “petitioner’s reliance on the Tennessee case Doe

v. Doe, 127 S.W. 3d 728 (2004) is misplaced. He further

noted that case involved a Tennessee disciplinary Rule

that imposed confidentiality on all parties. It was stated

that Rule was too expansive and therefore violative of

First Amendment standards.” In his decision For Sum-

mary Judgment, he then stated that “because the confi-

dentiality afforded complaints, applies to all complaints,”

thus the restriction against disclosure isn’t based on

content as applied to N.M.R.A. 17-304(A). State defen-

dants attorney in her reply brief stated the following;

“Vague laws and perhaps vague or uncertain application of

a law, (court rule) could cause one to question their consti-

tutionality,” which would seem to contradict the district

court Judge’s opinion that N.M.R.A. 17-304 isn’t a content

based restriction.

On June 28, 2006 the United States Court of Appeals

for the Tenth Circuit issued a decision that stated the

petitioner had not made a facial free speech challenge to

Rule 17-304 on appeal, even though ‘the Tenth Circuit

noted that petitioners Amended Complaint did state such

a challenge. The Tenth Circuit noted that petitioner

interpretation of Rule 17-304 was in fact wholly specula-

tive, and that Rule 17-304 is not vague or over-broad.

A petition for en banc rehearing was filed that con-

tained addendum’s that showed petitioner had made a

facial free speech challenge to Rule 17-304. Case law from

the Tenth Circuit was again quoted as was previously done

in petitioner’s Opening Brief, and Reply Brief along with

various U.S. Supreme Court authorities. Yet, on July 28,

2006 an order of denial for rehearing was submitted.

REASONS FOR GRANTING THE WRIT

Rule 17-304, Confidentiality of Investigations; Ex-

ception; Hearings.

A. Confidentiality. Except as otherwise pro-

vided by this rule, any investigation and any

investigatory hearing conducted by or under

the direction of disciplinary counsel, or dis-

ciplinary counsel’s authorized agents, shall

be entirely confidential unless and until

they;

(1) became matters of public record by:

(a) the filing of a formal specification

of charges with the disciplinary

board pursuant to Rule 17-309

N.M.R.A.;

(b) the filing of a summary suspension

proceeding pursuant to Rule 17-

207 N.M.R.A.;

capacity proceedings pursuant to

Rule 17-208 N.M.R.A.;

(d) the filing of a reinstatement pro-

ceeding pursuant to Rule 17-214

N.M.R.A.; or

(e) the filing of a motion for order to

show cause why a_ respondent

should not be held in contempt

pursuant to paragraph G of Rule

- 17-206 N.M.R.A.; or

-(2) are otherwise released according to

these rules.

Rule 17-304 is in effect a gag rule that interferes with

the discussion of governmental affairs. It is overly vague

in its application and does not state who specifically must

maintain confidentiality. This was noted in the state

citation of Fernandez-Wells v. Beauvais, 199-NMCA-071,

127 N.M. 487, 983 P. 2d 1006 (1999), which states the

following:

“Under Rule 17-304(A) investigations and hear-

ing conducted by or under the direction of disci-

plinary counsel shall be confidential unless, they

fall under an exception stated in Rule 17-304,

but the Rule does not state who must keep them

confidential.”

- 6

As other jurisdictions have noted in striking down

similar_content-based restriction, the reputation of law-

yers, the need to “balance” the grievant's immunity, the

efficiency of the disciplinary process and all other ration-

ale for secrecy are not compelling state interest that would

justify restraint on criticism of Government Agencies and

officers of the court.

Content based restrictions are presumptively uncon-

stitutional. See, R.A.V. v. City of St. Paul, 505 U.S. 377,

382 (1992). Under the strict scrutiny test, they are permis-

sible only if the state proves (1) that the restriction serves

a compelling state interest and (2) it is narrowly tailored

to achieve that end. See, e.g., Burson v. Freeman, 504 U.S.

191, 198 (1992). Rule 17-304 meets neither standard. The

decision of the Tenth Circuit Court of Appeals seems to

contradict their decision in Jordan v. Michael V. Pugh, 425

F.3d 820 (10th Cir. 2005). There it is stated that “facial

challenges for vagueness and over-breadth involve a

common preliminary inquiry about statute’s effect on

constitutionally protected activity.” A further applicable

quote from the above citation is; “when considering a facial

challenge to the over-breadth and vagueness of a law, a

court’s first task is to determine whether the enactment

reaches a substantial amount of constitutionally protected

conduct.”

Another citation from the Tenth Circuit Court of

Appeals the seems to contradict the present opinion is

Faustin v. City and County of Denver, 423 F.3d 1192 (10th

Cir. 2005) wherein is stated that “in short, there must be a

realistic danger that a statute itself will significantly

compromise recognized First Amendment Protection of

parties not before the court.” This same sentiment involving

parties not before the court having their constitutionally

protected Free Speech possibly abridged is noted in Broad-

rick v. Oklahoma, 413 U.S. 601 (1973).

The court should grant, vacate and remand in light of

Tory et al. v. Cochran, 544 U.S. 734, 125 S. Ct. 2108 (2005).

In this citation it was noted that the injunction as written

amounted to an overly broad restraint on Free Speech. It

was also noted that according to Carroll v. President and

Commissioners of Princess Anne, 393 U.S. 175, 183-184

(1968) (“an order issued in the area of first amendment

rights must be precisely and narrowly tailored to achieve

pinpoint objective of the needs of the case); Nebraska-Press

Association v. Stuart, 427 U.S. 539, 559 (1976) (“prior

restraints on free speech and publication are the most

serious and least tolerable infringement on First Amend-

ment Rights.

A further reason for granting th. writ is that the

decision of the Tenth Circuit Court of Appeals is com-

pletely contradicted by the decision of the New Hampshire

Supreme Court in Petition of Brooks, 140 N.H. 813, 678

A.2d (1996). In their decision the New Hampshire Su-

preme Court noted that a rule similar to the one in New

Mexico (N.M.R.A. 17-304) would have failed first amend-

ment scrutiny had it not been amended. Id. at 823. Thus,

we are now in a situation where a state supreme court has

decided an important federal question that conflicts with

decision of a United States Court of Appeals.

If plenary review is not granted, petitioner requests

that the court grant, vacate, and remand for further

consideration in light of their decision. See, Lawrence uv.

Chater, 516 U.S. 163, 169-170 (1996) (per curiam).

I. The Issue Of a Facial Free Speech Challenge

to Rule 17-304 Wasn’t Waived.

The recent decision of the Tenth Circuit states the

following (footnote on page 10 of opinion on June 28,

2006):

“The district court also considered Mr. Guttman’s

complaint as stating a facial speech challenge to

Rule 17-304’s restriction on the disciplinary

board’s dissemination of information about com-

plaints filed against attorney’s and the Board’s

investigation of those complaints Mr. Guttman

has raised no argument on this point on appeal.

Accordingly, he has waived this issue.”

In fact, petitioner’s absolutely raised this point on

appeal, note Brief in Chief (See App. 40). Starting on page

six (6) of his Opening Brief (See App. 43) is:

“The standard for determining confidentiality is

also discussed, in the supreme court case of Ten-

nessee involving Doe v. Doe, there it’s noted that

the free speech clause of first amendment to the

United States Constitution provides that con-

gress shall make no law... . Abridging the free-

dom of speech. The protection of freedom of

speech rights is noted to be as broad as the first

amendment citing Leech v. American Book Sell-

ers Association Inc., 582 S.W-2d 738, 745 (Tenn.

1979).”

Petitioner’s Opening Brief stated the restriction on

free speech in the case of Doe v. Supreme Court of Florida,

734 F. Supp. at 986, pertaining to that states confidential-

ity provision was found to be overly broad in its applica-

tion. The citation of Airport Commissioners v. Jews for

Jesus Inc., 482 U.S. 569 (1987) utilized the following

quote:

“In these quintessential public forums, the gov-

ernment may not , rohibit all communicative ac-

tivity. For the state to enforce a content based

exclusion it must show a compelling state inter-

est that is narrowly drawn to achieve that end.”

Petitioner’s Reply Brief was labeled “The over-broad

Doctrine And Vagueness In Reference To Violation Of The

First Amendment.” Petitioner then noted the United

States Supreme Court has traditionally viewed vagueness

and over-broad as logically related doctrines, Kolander v.

Lawson, 461 U.S. at 358 n. 8 (1983). Richard H. Fallon, Jr.

in making sense of over-broad 100 Yale LJ. 853, 901

(1991) states the following:

“Over-breadth and vagueness may over lap when

the challenged statute is so unclear in its scope

that officials enforce it in an over-broad manner.

Similarly, a vague statute may so functionally

over-broad it causes affected persons to interpret

it through the broadest possible meaning.”

Petitioner’s briefs utilized the following and applicable

Tenth Circuit citations, Jordan v. Michael V. Pugh, 425

F.3d 820 (10th Cir. 2005):

“When considering a facial challenge to the over

breath and vagueness of a law, a court’s first task

is to determine whether the enactment reaches a

substantial amount of constitutionally protected

conduct Hoffman Estates v. Flipside, Hoffman

Estates, 455 U.S. 489, 494 (1982). Under either

theory, a facial challenge is available only if the

answer is yes.”

A facial challenge seeks to vindicate not only individ-

ual Petitioner’s rights, but also those of all others who

wish to engage in the speech being prohibited, See, Haw-

kins v. City and County of Denver, 170 F.3d 1281, 1285

(10th Cir. 1996). In Faustin v. City and County of Denver,

423 F.3d 1192 (10th Cir. 2005), is stated the following by

the U.S. Supreme Court:

“In short, there must be a realistic danger that

the statute itself will significantly compromise

recognized First Amendment protections of par-

ties not before the court for it to be facially chal-

lenged on over-breadth grounds.”

The citation of Broadrick v. Oklahoma, 413 U.S. 601

(1973) is also instructive:

“Litigants, therefore, are permitted to challenge

a statute not because their own right of free ex-

pression are violated, but because of a judicial

prediction or assumption that the statute’s very

existence may cause others not before the court

to refrain from constitutionally protected speech

or expression.”

State Defendant’s Attorney admitted that the vague-

ness of Rule 17-304, could be a constitutional issue “vague

laws and perhaps vague or uncertain application of Law,

(court rule) could cause one to question their constitution-

ality.”

Petitioner notes the following State Court authority

(utilized by District Court Judge) that supports the

vagueness of N.M.R.A. 17-304. Fernandez-Wells v. Beau-

vais, 199-NMCA-071, 127 N.M. 487, 983 P.2d 1006 (1999),

which states the following:

“Under Rule 17-304(A), investigations and hear-

ing conducted by or under the direction of disci-

plinary counsel shall be confidential unless they

fall under on exception stated in 17-304, but the

rule does not state who must keep them confi-

dential.”

II. Rule 17-304 Violates The United States Consti-

tution Because It Is Content Based and Merits

Strictest Scrutiny.

The court has said in the following cases that restric-

tive expression on the basis of content is presumptively

invalid and violates the principle underlying the First

Amendment for full and free discussion, such state action

is subjected to strict scrutiny. Texas v. Johnson, 491 U.S.

397, 412, 109 S. Ct. 2533, 2544, 105 L. Ed. 2d 342 (1989),

(describing the standard as the “most exacting scrutiny”)

quoting Boos v. Barry, 485 U.S. 312, 321, 108 S. Ct. 1157,

1164, 99 L. Ed. 2d 333 (1988). That a statute or Rule is

rationally related to its purpose is not sufficient justifica-

tion when First Amendment Rights are implicated City of

Los Angeles v. Preferred Communications, Inc., 476 U.S.

488, 496, 106 S.Ct. 2034, 2038 (1986). Thus the US.

Supreme court has concluded “it is rare that a regulation

restricting speech because of it content will ever be per-

missible.” United States et al. v. Playboy Entertainment

Group Inc., 529 U.S. 818, 120 S. Ct. 1889 (2000).

The U.S. Supreme Court has determined that in order

to justify content-based restrictions, the state has the

burden of showing (1) that the regulation is necessary to

serve a compelling state interest and (2) that the regula-

tion is narrowly drawn to achieve that end. Boos v. Barry,

485 U.S. 312, 321-322, 108 S. Ct. 1157, 1164, 99 L. Ed. 2d

333 (1988). The above is also noted in Kolander v. Lawson,

461 U.S. 352 (1983) where it’s stated that a California

statute was unconstitutionally vague on its face because it

encouraged arbitrary enforcement by failing to describe

with sufficient particularity what a suspect must do in

order to satisfy the statute.

In this case Rule 17-304 is unconstitutional both on its

face and as it is applied for three separate reasons: (1) the

governmental interests are not compelling (2) the rule

does not further the government interests (3) the means

used are not narrowly drawn.

Ill. Other Circuits Have Overturned Similar Con-

tent Based Regulations Governing Attorney

Complaints.

As previously stated, courts in Tennessee, New Hamp-

shire, and Florida have struck down as unconstitutional

rules imposing gag orders on grievants in such cases. See,

Doe v. Doe, 127 S.W. 3d 728 (Tenn. 2004); Petition of Troy

E. Brooks, 678 A.2d 140 (N.H. 1996); Doe v. Supreme Court

of Florida, 734 F. Supp. 981 (S.D. Fla. 1990). The Texas

Ethics Commission has concluded that such restrictions

are unconstitutional as well. See, Ethics Advisory Opinion

(No. 8 April 23, 1992). Other states, such as Oregon and

West Virginia, have established affirmative rights of

public access to the records of attorney disciplinary pro-

ceedings including during the investigative state, West

Virginia Rules of Lawyer Disciplinary Procedure 2.6, 2.9

(right of public access to records of the complaint state and

to confirm or deny the proceedings at the investigative

state). See, also Oregon State Bar Rule at Procedure

1.7(b). 7

Oregon Rule 1.7(b) Public Records Status:

Except as exempt or protected by law from disclo-

sure, the records of the bar relating to contested

admissions, disciplinary and reinstatement pro-

ceedings are available for public inspection.

West Virginia Rule 2. 6. Confidentiality:

The details of complaints filed with or investiga-

tions conducted by the Office Disciplinary coun-

sel shall be confidential, except that when a

complaint has been filed or an investigation has

been initiated, the Office of Disciplinary Coun-

selor the lawyer may release information con-

firming or denying the existence of a complaint

or investigation, or defending the right of the

lawyer to a fair hearing. Prior to the release of

information confirming or denying the existence

of a complaint or investigation by the Office of

Disciplinary Counsel reasonable notice shall be

provided to the lawyer. (Amended by order en-

tered May 6, 1999, effective July 1, 1999.) |

The case of Petition of Brooks, 140 N.H. 213, 678 A.2d

140 (1996) is very similar in its content to the instant case.

The Supreme Court of New Hampshire determined that a

rule just like the present one in New Mexico (N.M.R.A. 17-

304) prohibits disclosure of disciplinary complaints by

complainants of which Brooks was one. In Petition of

Brooks, it was concluded that this rule would have vio-

lated First Amendment scrutiny had it not been amended.

Id. at 823.

In R.M. v. Supreme Court of New Jersey, et al. (No.

A-89-04, Oct. 19, 2005), an over-broad Rule requiring

grievant to maintain confidentiality was overturned by the

New Jersey Supreme Court in reference to attorney

Disciplinary matters because of being over-broad and

subject to strict scrutiny. In their opinion the New Jersey

Supreme Court recommended the following in place of the

overturned regulation:

“The District Committee can recommend that the

grievant maintain confidentiality of the process

during the investigatory state and the grievant

can agree to do so when it is in his or her inter-

est.”

IV. The Importance of the Authority of Petition

of Brooks, 140 N.H. 813 (1996), in Relation to

N.M.R.A. 17-304.

As mentioned elsewhere in this brief the citation of

Petition of Brooks, 140 N.H. 813, 678 A.2d 140 (1996) has

great application to N.M.R.A. Rule 17-304. The New

Hampshire Supreme Court, in Brooks, supra, overturned a

court rule that prevented disclosure of information about

disciplinary proceedings, 678 A.2d at 142-143. Even in her

response brief the defense attorney admitted that in

Petition of Brooks, Rule 37(17)(a) governing confidentiality

was found to be not narrowly tailored to meet compelling

State interests and therefore failed First Amendment

scrutiny.

_ The Supreme Court in New Hampshire struck down

New Hampshire’s Rule that prohibited complainant from

disclosing information until the disciplinary body publicly

filed an attorney’s response to allegations. R.S.Ct. N.H.

37(20)(aX2). The New Hampshire Supreme Court held

that the gag rule reached “speech traditionally accorded

the most solicitous protection of the First Amendment;

namely, criticism of the government’s performance of its

duties,” id., relying on the United States Supreme Court’s

ruling in Landmark Communications Inc. v. Virginia, 435

U.S. 829, 98 S. Ct. 15351978).

Rule 37 (17) provided:

(17) Confidentiality;

(a)

(1)

(2)

(3)

(4)

Proceedings Alleging Misconduct. All records and

proceedings involving aliegations of misconduct

by an attorney shall be confidential and shall not

be disclosed except:

When the prosecution of formal charges is

initiated by the filing of a petition with the New

Hampshire Supreme Court, in which case, except

as provided by section 9 regarding resignations,

the pleadings, all information admitted at the

proceedings, the proceedings themselves (other

than deliberation of the supreme court), and the

decision, shall be public; or

When an attorney seeks reinstatement pursuant

to section 12, in which case the proceedings be-

fore the committee shall be conducted the same

as prescribed in subsection (1); or

When the attorney/respondent, prior to filing of

formal charges, requests that matter be public,

in which case the entire file, other than the work

product and internal memoranda of the commit-

tee, shall be public; er

If the investigation is predicated upon conviction

of the respondent for a crime or upon public dis-

cipline imposed upon the respondent in another -

jurisdiction, in which case the entire file pertain-

ing to the crime or the public discipline, other

than the work product and internal memoranda

of the committee, shall be public... .

It should be noted just as in Petition of Brooks, Peti-

tioner’s attorney complaints did not fall into any of the

exceptions listed in N.M.R.A. 17-304. As in Petition of

Brooks, Petitioner also received envelopes from the New

Mexico Disciplinary Bar that were marked confidential.

To further prove the similarity between the N.M.R.A.

17-304, and Petition of Brooks, is the reference to 37(17)(a)

that states: “all proceedings and records involving allega-

tions of misconduct by an attorney shall be confidential

and shall not be disclosed except,” wherein the Supreme

Court of New Hampshire expressly stated in their opinion

that in fact” the scope of prior Rule 37(17)(a) extended to

speech traditionally accorded the most solicitous protec-

tion of the First Amendment, namely criticism of the

governments performance of its duties. See, Butterworth v.

Smith, 494 U.S. 624, 632 (1990); Mills v. Alabama, 384

U.S. 214, 215-219 (1966). Under this Rule (again referring

to Rule 37(17)(a), “a complainant wishing to criticize the

Professional Conduct Committee (P.C.C.) handling of

particular investigation might have been permanently

barred from doing so because of the mere fact that an

investigation took place, as well as the specific actions

taken by the committee would have violated confidential-

ity of the process.”

Even a casual reading of N.M.R.A. Rule 17-304.

Confidentiality of Investigations shows that section (A)

wherein it states “that except as otherwise provided by

this Rule, any investigation, and any investigatory hear-

ing conducted by or under the direction of disciplinary

counsel or their authorized agents shall be entirely confi-

dential except,” is completely similar to the language of

Rule 37(17)(a).

The Rationale For Confidentiality Involving

Regulation 20(a) of Minnesota Lawyers Profes-

sional Responsibility Board With Similarity To

N.M.R.A. 17-304.

RULE 20. CONFIDENTIALITY; EXPUNCTION

(a) General Rule, The Files, records, and proceed-

ings of the District Committees, the Board, and

the Director, as they may relate to or arise out of

any complaint or charge of unprofessional con-

duct against or investigation of a lawyer, shall be

deemed confidential and shall not be disclosed,

except;

(1)

(2)

(3)

(4)

As between the Committees, Board and Di-

rector in furtherance of duties;

After probable cause has been determined

under Rule 9(j)(ii) or proceedings before a

referee or this Court have been commenced

under these Rules;

As between the Director and a lawyer ad-

mission or disciplinary authority of another

jurisdiction in which the lawyer affected is

admitted to practice;

Upon request of the lawyer affected, the file

maintained by the director shall be produced

including any district committee report;

however, the Director’s work product shall

not be required to be produced, nor shall the

Director or Director’s staff be subject to

deposition or compelled testimony, except

upon a showing to the court issuing the sub-

poena of extraordinary circumstance and

compelling need. In any event, the mental

impressions, conclusions, opinions and legal

(5)

(6)

(7)

(8)

(9)

theories of the Director and Director’s staff

shall remain protected.

If the complainant is, or at the time of the

actions complained of was, the lawyer’s cli-

ent, the lawyer shall furnish to the com-

plainant copies of the lawyer’s written

responses to investigation requests by the

Director and District Ethics Committee, ex-

cept that insofar as a response does not re-

late to the client’s complaint or involves

information as to which another client has a

privilege that portions may be deleted;

Where permitted by this Court, or

Where required or permitted by these Rules.

Nothing in this rule shall be construed to

require the disclosure of the mental proc-

esses or communications of the Committee

or Board members made in furtherance of

their duties.

As between the Directors and the Client Se-

curity Board in furtherance of their duties to

investigate and consider claims of client loss

allegedly caused by the intentional dishon-

esty of a lawyer.

(10) As between the Director and the Board on

Judicial Standards or its executive secretary

in furtherance of their duties to investigate

and consider conduct of a judge that oc-

curred prior to the judge assuming judicial

office.

In an article by Charles E. Lundberg (See App. 51)

who has served for almost eighteen year in various capaci-

ties in the legal ethics arena, he has noted that the “prin-

ciple behind Rule 20 is fairly straight forward. Since

publicity about an ethics complaint could ruin an attor-

neys reputation, information about an investigation

should not be made public unless, and until certain due

process hurdles are met.”

Even Mr. Lundberg notes that the policy in Minnesota

can create problems for the Director’s office which occa-

sionally gets calls from clients or potential clients asking

whether an attorney is reliable. He notes the hypothetical

situation in which a potential client is about to entrust a

lawyer with substantial financial assets, and wants to

know if the attorney he’s thinking about hiring was

presently under investigation for misappropriating client

funds. Mr. Lundberg noted other practical problems with

the confidentiality Rule, as when a reporter called the

Director’s office seeking further information about an

investigation (mentioned in the article) the Director

couldn’t even clarify certain elementary matters for the

reporter without the involved attorney’s consent. Another

situation was mentioned that also provided a problem

with the confidentiality Rule. When the Director’s office

learned that a District Ethics Committee investigator

decided to use his legal assistant to-help with a document

heavy investigation, the Director’s office issued an alert

that this could well violate Rule 20 since the legal assis-

tant was not a member of the District Ethics Committee.

The Federal District Court in Doe v. Supreme Court of

Florida, 734 F. Supp. 981 (S.D. Fla. 1990) has addressed

the rationale of protecting attorneys reputation with this

quote:

“The idea that the Suppression of truthful criti-

cism of lawyers would some how enhance or pro-

tect the reputation of the bar is not persuasive.

To the contrary, continuing the prohibitory effect

of the rule after a grievance against an attorney

is found to be meritorious is far more likely to

engender suspicion rather that confidence.”

VI. N.M.R.A. 17-105 Does Not Apply To This Cause

Of Action.

The above rule as formulated strictly applies to

Disciplinary Counsel. Its Title and content has absolutely

no connection or bearing on N.M.R.A. 17-304 that applies

to Confidentiality of Investigations. Whatever duties

N.M.R.A. 17-105 imposes on Disciplinary Counsel, in-

volves the activity of the counsel and no one else. Thus,

N.M.R.A. 17-105 and all its elements is a strictly stand

alone regulation which applies in limited scope to only the

Disciplinary Counsel. By virtue of its strict application,

and totally different subject matter Rule 17-105 should not

be referenced to N.M.R.A. 17-304.

CONCLUSION

The petition for writ of certiorari should be granted,

the judgment below vacated and case remanded for fur-

ther consideration in light of Tory et al. v. Cochran, 544

U.S. 734, 125 S. Ct. 2108 (2005). If the court does not

follow the above course, consideration should be given for

plenary review since three State Courts of last resort have

decided an important federal question in a way that

conflicts with the United States Court of Appeals for the

Tenth Circuit. A further reason is that the United States

Court of Appeals for the Tenth Circuit has entered a

decision that now is in conflict with the decision of the

United States Court of Appeals for Southern District of

Florida.

Respectfully submitted,

STUART T. GUTTMAN,

Petitioner Pro Se

Post Office Box 3370

Truth or Consequences, NM 87901

(505) 744-4756

App. 1

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

Stuart T. GUTTMAN, M.D.,

Plaintiff-Appellant,

JOEL WIDMAN, individually and

in his capacity as a member of the

New Mexico Supreme Court

Disciplinary Board; VIRGINIA L.

FERRARA, individually and in No. 06-2209

her capacity as a member of the (D.C. No. CIV-04-433-

New Mexico Supreme Court WPJ/WPL)

Disciplinary Board; HERBERT M. (D. N.M.)

SILVERBERG; PATRICIA A.

MADRID, individually and in her

capacity as Attorney General of

the State of New Mexico;

DISCIPLINARY BOARD,

an agent of the New Mexico

Supreme Court, -

Defendants-Appellees.

ORDER AND JUDGMENT*

(Filed June 28, 2006)

* After examining the briefs and appellate record, this panel has

determined unanimously that oral argument would not materially

assist the determination of this appeal. See Fed. R. App. P. 34(a)2);

10th Cir. R. 34.1(G). The case is therefore ordered submitted without

oral argument. This order and judgment is not binding precedent,

except under the doctrines of law of the case, res judicat. and collateral

(Continued on following page)

App. 2

Before BRISCOE, McKAY, and BRORBY, Circuit Judges

This is plaintiff Stuart T. Guttman’s second appeal in

this case. He filed the first pro se, seeking review of the

district court’s denial of his motion to recuse. That appeal

was dismissed for lack of appellate jurisdiction. See Gutt-

man v. Widmon sic], No. 04-2316 (10th Cir. Mar. 16, 2005)

(order dismissing appeal). In the present appeal, Mr.

Guttman, again appearing pro se, contests various rulings

of the district court in favor of defendants or against him.

We have jurisdiction pursuant to 28 U.S.C. § 1291 and

affirm.

I. Background

Mr. Guttman lost his license to practice medicine as a

result of proceedings before the New Mexico Board of

Medical Examiners. Defendant Herbert Silverberg, an

attorney, represented Mr. Guttman in those proceedings.

Contending that the representation was substandard, ™‘r.

Guttman filed a complaint against Mr. Silverberg with the

New Mexico Supreme Court Disciplinary Board (Discipli-

nary Board or Board). In this action, Mr. Guttman claimed

that the Board,’ through the New Mexico Attorney Gen-

eral, defendant Patricia Madrid, prevented him from

publicizing his complaints against Mr. Silverberg in

estoppel. The court generally disfavors the citation of orders and

judgments; nevertheless, an order and judgment may be cited under the

terms and conditions of 10th Cir. R. 36.3.

* Although Mr. Guttman referred to the New Mexico Supreme

Court in his first claim, we construe his pleading to mean the Discipli-

nary Board, as he did not name the Court as a defendant.

App. 3

violation of his First Amendment right of freedom of

speech. As the source of this constraint, Mr. Guttman

relied primarily on Rule 17-304 of the Rules Governing

Discipline promulgated by the New Mexico Supreme

Court, which reads, in relevant part:

17-304. Confidentiality of investigations;

exceptions; hearings.

A. Confidentiality. Except as otherwise pro-

vided by this rule, any investigation and any in-

vestigatory hearing conducted by or under the

direction of disciplinary counsel, or disciplinary

counsel’s authorized agents, shall be entirely con-

fidential unless and until they:

(1) become matters of public record by:

(a) the filing of a formal specification of

charges with the Disciplinary Board

pursuant to Rule 17-309 NMRA;

(b) the filing of a summary suspension pro-

ceeding pursuant to Rule 17-207 NMRA;

pacity proceeding pursuant to Rule 17-

208 NMRA; P

(d) the filing of a reinstatement proceeding

pursuant to Rule 17-214 NMRA; or

(e) the filing of a motion for order to show

cause why a respondent should not be

held in contempt pursuant to Para-

graph G of Rule 17-206 NMRA; or

(2) are otherwise released according to these

rules.

N.M.R.A. 17-304.

App. 4

In his second claim for relief, entitled “Damages,” Mr.

Guttman claimed that the Disciplinary Board, through

Attorney General Madrid, wrongly denied him access to

complaints filed against Mr. Silverberg. He contended

that, had he known about those complaints, he never

would have hired Mr. Silverberg and sustained damages

as a result of Mr. Silverberg’s allegedly deficient represen-

tation of Mr. Guttman before the Board of Medical Exam-

iners.

In his prayer for relief, Mr. Guttman requested a

finding that the Disciplinary Board, two of its disciplinary

counsel, defendants Joel Widman and Virgina Ferrarra,

and Attorney General Madrid (together, State Defendants)

conspired to deprive him of his free speech rights. He also

sought damages arising from Mr. Silverberg’s representa-

tion and injunctive relief (the object of his third claim for

relief) in the form of an order that the State Defendants

open the Board’s records to public inspection. In unneces-

sarily protracted pretrial litigation, the district court

granted Mr. Silverberg’s motion to dismiss and the State

Defendants’ motion for summary judgment. The district

court also denied Mr. Guttman’s motions for recusal and

summary judgment, and imposed filing restrictions on

him. This appeal followed.

II. Discussion

A. Mr. Silverberg’s Motion to Dismiss.

_ The district court granted Mr. Silverberg’s motion to

dismiss the amended complaint as against him pursuant

to Fed. R. Civ. P. 12(b)(6) on the grounds that he had no

role in the promulgation or enforcement of Rule 17-304

and that any reference to his allegedly substandard

App. 5

performance was merely context for Mr. Guttman’s claims

against the other defendants. On appeal, Mr. Guttman

argues only that the district court should not have granted

the motion to dismiss because it previously had denied Mr.

Silverberg’s motion to abstain, which was based on Mr.

Guttman’s pending state-court suit against him. We

review de novo the district court’s dismissal pursuant to

Rule 12(b\(6). Sutton v. Utah State Sch. for Deaf & Blind,

173 F.3d 1226, 1236 (10th Cir.1999). In doing so, “all well-

pleaded factual allegations in the amended complaint are

accepted as true and viewed in the light most favorable to

the nonmoving party.” Jd. Because Mr. Guttman appears

pro se, we review his pleadings and other papers liberally

and hold them to a less stringent standard than those

drafted by attorneys. See Hall v. Bellmon, 935 F.2d 1106,

1110 & n. 3 (10th Cir.1991).

In Mr. Silverberg’s earlier motion to dismiss on

abstention grounds, he opined that none of the claims

pertained to him. Although the district court questioned

whether he was a proper defendant, the court noted that

he had not moved for dismissal on any grounds other than

abstention, and the court did not consider any basis other

than abstention in denying the motion. Accordingly, the

order denying Mr. Silverberg’s motion to abstain did not

bar the district court from granting his later motion to

dismiss pursuant to Rule 12(b)(6), which raised different

grounds for dismissal of the claims asserted against him,

i.e., that he had no role in the promulgation or enforce-

ment of Rule 17-304.”

* Mr. Guttman also argues that the district court should not have

granted the motion to dismiss because it was filed several months after

the deadline for pretrial motions set in the Initial Pretrial Report (IPR).

(Continued on following page)

App. 6

tate Defendants’ Motion for Summary Judgment.

The district court granted the State Defendants’

motion for summary judgment for a variety of reasons.

“We review the district court’s grant of summary judgment

de novo ... [and] view the evidence and draw reasonable

inferences therefrom in the light most favorable to the

nonmoving party.” Simms v. Okla. ex rel. Dep’t of Mental

Health & Substance Abuse Servs., 165 F.3d 1321, 1326

(10th Cir.1999). Summary judgment is appropriate “if the

pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any,

show that there is no genuine issue as to any material fact

and that the moving party is entitled to a judgment as a

matter of law.” Fed. R. Civ. P. 56(c). The nonmovant may

not rest upon his pleadings. Simms, 165 F.3d at 1326.

The district court ruled that Eleventh Amendment

immunity barred any claims for damages against the

Disciplinary Board and the individual State Defendants in

their official capacity. Mr. Guttman’s appellate arguments

on this issue that pertain to qualified immunity are not

relevant to the Eleventh Amendment immunity analysis.

His argument that the district court’s ruling on Eleventh

Amendment immunity bars his request for prospective

injunctive relief under Ex Parte Young, 209 U.S. 123

(1908), is misguided as the Eleventh Amendment immu-

nity holding by its terms is limited to immunity from suit

(Although we are unable to locate a copy of the IPR in the record, we

note that Mr. Guttman provided a copy to which we will refer. See

Aplt.App., Vol. I at 45-55.) The IPR, however, provides that motions

filed after the deadline would be considered late in the discretion of the

court. Id. at 53. The district court apparently did not consider Mr.

Silverberg’s motion as untimely, perhaps because it was meritorious.

App. 7

for damages. Having reviewed the record, we affirm the

district court’s ruling on Eleventh Amendment immunity

for substantially the same reasons as set forth in the

district court’s opinion. See R., Vol. III, Doc. 132 at 3-4.

The district court next construed Mr. Guttman’s First

Amendment claims against Attorney General Madrid as

arising under 42 U.S.C. § 1983 and concluded that they

fail because he had not shown the Attorney General had

personally participated in any acts that violated his free

speech rights. To establish supervisor liability under

§ 1983, a plaintiff must show that “an affirmative link

exists between the [constitutional] deprivation and either

the supervisor’s personal participation, his exercise of

control or direction, or his failure to supervise.” Meade uv.

Grubbs, 841 F.2d 1512, 1527 (10th Cir.1988) (quotation

omitted) (alteration in original).

Mr. Guttman alleged that the Disciplinary Board

acted through the Attorney General. His position on

appeal appears to be that he named Attorney General

Madrid in order for her to consider the constitutionality of

Rule 17-304, see Aplt. Opening Br. at 6-7. He bases this

arguir°nt primarily on Doe v. Doe, in which the Tennessee

Supre: 2 Court asked the Tennessee Attorney General to

file an amicus brief and participate in oral argument in a

pending case that concerned the constitutionality of a

disciplinary rule concerning duties of confidentiality in

attorney disciplinary proceedings, 127 S.W.3d 728, 729

(Tenn. 2004). The Attorney General in Doe did not become

a party to the case. Mr. Guttman’s objective in naming

Attorney General Madrid in this case is insufficient to

satisfy the personal participation requirement of actions

brought pursuant to § 1983 or to show that she is otherwise

a proper defendant in this action, and he has provided no

App. 8

other argument or evidence to show her direct or supervi-

sory participation.

The district court further construed the amended

complaint as possibly setting forth a claim under the New

Mexico Tort Claims Act, N.M. Stat. Ann. §§ 41-4-1 to 41-4-

27 (Act), and granted summary judgment because New

Mexico had not waived immunity under the Act for Mr.

Guttman’s claims, Mr. Guttman had not complied with the

Act’s notice requirements, and his claims were time-

barred. For substantially the same reasons as set forth in

the district court’s opinion, see R., Vol. III, Doc. 132 at 5-7,

we affirm the dismissal of any claim Mr. Guttman brought

that could be construed as arising under the Act.

The district court proceeded to the merits of Mr.

Guttman’s First Amendment claim and concluded that

Rule 17-304 applies only to the Disciplinary Board and its

counsel and does not prevent Mr. Guttman from publiciz-

ing his complaints against Mr. Silverberg. Mr. Guttman

argues that the rule is vague and overbroad. We disagree.

“A plaintiff may challenge a statute as overly vague

where the statute’s deterrent effect on legitimate expres-

sion is ‘both real and substantial’ and the statute is not

‘readily subject to a narrowing construction by the state

courts....’” Faustin v. City & County of Denver, 423 F.3d

1192, 1202 (10th Cir. 2005) (quoting Young v. Am. Mini

Theatres, Inc., 427 U.S. 50, 60-61 (1976)). However,

“(s]peculation and ‘hypertechnical theories as to what the

statute covers’ cannot create vagueness, especially when

- the statute is ‘surely valid in the vast majority of its

intended applications.’” Id. (quoting Hill v. Colorado, 530

U.S. 703, 733 (2000)). Similar concerns drive the over-

breadth analysis. See id. at 1199-1200.

App. 9

Rule 17-304 is distinct from rules in other states that

were struck down on First Amendment grounds to the

extent they expressly imposed a duty of confidentiality on

complainants in a disciplinary proceeding. See, e.g., Doe v.

Sup. Ct., 734 F. Supp. 981, 988 (S.D. Fla.1990); R.M. v.

Sup. Ct., 883 A.2d 369, 374, 381 (N.J. 2005); Doe, 127

S.W.3d at 731, 736; Petition of Brooks, 678 A.2d 140, 141

(N.H. 1996). Although Rule 17-304 does not explicitly state

that complainants are not bound by its confidentiality

provisions, Rule 17-105(C)(5) provides, “Disciplinary

counsel shall have the duty ... to keep all complaints and

other disciplinary matters confidential except as otherwise

provided by these rules.” N.M.R.A. 17-105(C)(5) (emphasis

added). 2

Based on Rule 17-105(C)(5), we conclude that Rule 17-

304 does not require Mr. Guttman to keep his own com-

plaints about Mr. Silverberg confidential.* The absence of a

specific exclusion for complainants, coupled with the fact

that all correspondence from the Board to Mr. Guttman

was marked “Confidential,” may have fostered Mr. Gutt-

man’s misunderstanding, but it does not lead to the

conclusion that Rule 17-304 is unconstitutionally vague or -

overbroad. As narrowed by reference to Rule 17-105(C)(5),

Rule 17-304 does not pose a real and substantial threat to

* In an affidavit supporting the motion for summary judgment, Mr.

Widman suggested this same conclusion. See R., Vol. II, Doc. 114, Ex.

A, { 7. However, his opinion is not necessary to our disposition of this

purely legal issue. Therefore, we decline to consider whether alleged

improprieties in the execution, filing, and service of the affidavit render

the State Defendants’ motion for summary judgment untimely. The

motion itself was timely because it was filed electronically prior to 8:00

a.m. of the business day following the date it was due. See D.C.N.M.LR-

Civ. 5.5(a). ies

App. 10

a complainant’s ability to publicize his own complaints.

Rather, Mr. Guttman’s interpretation of Rule 17-304 is

wholly speculative. Rule 17-304, therefore, is not vague or

overbroad. Accordingly, Mr. Guttman’s First Amendment

claim fails, and he is not entitled to damages or any

prospective injunctive relief.’

C. Mr. Guttman’s Motion for Summary Judgment.

Despite finding Mr. Guttman’s motion for summary

judgment untimely, the district court denied it on the

merits. Based on the foregoing discussion affirming the

grant of the State Defendants’ motion for summary judg-

ment, we agree that Mr. Guttman’s motion fails on the

merits. Accordingly, we need not address his contention

that it was unfair to find his motion untimely but not the

State Defendants’ motion for summary judgment, which

we concluded above was timely, see supra, footnote three.

D. Judicial Bias.

Mr. Guttman points to a variety of comments in the

district court’s orders in support of his contention that the

district judge was biased against him. Some of the com-

ments concerned Mr. Guttman’s ignorance of procedural

rules due to his pro se status and its effect on the number

and quality of his filings, for which the judge threatened

* The district court also considered Mr. Guttman’s complaint as

stating a facial free speech challenge to Rule 17-304’s restriction on the

Disciplinary Board’s dissemination of information about complaints

filed against attorneys and the Board’s investigations of those com-

plaints. Mr. Guttman has raised no argument on this point on appeal.

Accordingly, he has waived this issue. See State Farm Fire & Cas. Co. v.

Mhoon, 31 F.3d 979, 984 n. 7 (10th Cir. 1994).

App. 11

sanctions. Other comments concerned the judge’s view

that two of Mr. Guttman’s other suits were no longer

pending and that he likely had removed a third improp-

erly. Mr. Guttman also takes issue with the statement in

an order denying a motion for post-judgment relief from

filing restrictions that any further motions would be

considered frivolous because Mr. Guttman already had

filed his notice of appeal, thereby depriving the district

court of jurisdiction. |

“[O]pinions formed by the judge on the basis of facts

introduced or events occurring in the course of the current

proceedings, or of prior proceedings, do not constitute a

basis for a bias or partiality motion unless they display a

deep-seated favoritism or antagonism that would make

fair judgment impossible.” Liteky v. United States, 510

U.S. 540, 555 (1994). Having reviewed the record in this

case, we conclude that the comments with which Mr.

Guttman takes issue evidence opinions that the district

judge formed in the course of the proceedings and are not

of the type that make fair judgment impossible. Therefore,

we perceive no bias on the part of the district judge.

E. Filing Restrictions.

The final issue before us is the district court’s entry of

a permanent injunction against Mr. Guttman that pre-

vents him from filing any lawsuits in the United States

District Court for the District of New Mexico unless he is

represented by counsel or, if he proceeds pro se, unless he

complies with a number of conditions when tendering a

proposed complaint. Those conditions require him to

provide an affidavit that the action is commenced in good

faith, is not malicious, and has arguable merit. He must

App. 12

certify the proposed complaint pursuant to Fed. R. Civ. P.

11. The proposed complaint must list all actions he has

previously filed and describe their status. He must provide

a copy of any other filing restrictions placed on him.

Finally, he must submit a notarized affidavit that de-

scribes with particularity the legal issues, discloses

whether they were raised in any other actions, and certi-

fies again that the legal arguments are not frivolous or

made in bad faith but are warranted by existing law or a

good-faith argument for extension, modification, or rever-

sal of existing law. Upon compliance with these require-

ments, the district court then would review the complaint

and make a determination whether it should be accepted

for filing.

Federal courts may “regulate the activities of abusive

litigants by imposing carefully tailored restrictions under

the appropriate circumstances.” Tripati v. Beaman, 878

F.2d 351, 352 (10th Cir. 1989) (per curiam) (quotation

omitted). “Litigiousness alone will not support an injunc-

tion restricting filing activities.” Jd. at 353. Filing restric-

tions, however, are appropriate where the litigant’s

lengthy and abusive history is set forth, the court provides

guidelines as to what the litigant must do to obtain its

permission to file an action, and the litigant receives

notice and an opportunity to oppose the court’s order

before it is implemented. See id. at 353-54. “The conditions

cannot be so burdensome, however, as to deny a litigant

meaningful access to the courts.” Cotner v. Hopkins, 795

F.2d 900, 902 (10th Cir. 1986).

We have reviewed the record in this case and conclude

that the requirements of Tripati are met. The district court

described a variety of Mr. Guttman’s procedurally im-

proper or meritless filings. The restrictions provide specific

App. 13

guidelines, and he was given the chance to respond. The

restrictions do not deny Mr. Guttman meaningful access to

the courts. He may hire an attorney or file pro se any

action deemed to be nonfrivolous. Mr. Guttman’s proce-

dural transgressions, misunderstanding of legal theories,

misapplication of case law, and sophistic arguments in this

case have tested the limits of the leeway afforded to pro se

litigants. We observed similar problems in our review of

the case file in Guttman v. Silverberg, 167 F. App’x 1 (10th

Cir. 2005) (unpublished), petition for reh’g and reh’g en

banc denied, No. 05-2180 (10th Cir. Jan. 26, 2006) (order

denying petitions), cert. denied, 126 S. Ct. 1913 (2006), of

which we take judicial notice. Despite the fact that Mr.

Silverberg also was a defendant in that case, we conclude

that our opinion in Judd v. University of New Mexico, 204

F.3d 1041, 1043-45 (10th Cir. 2000), does not require that

the injunction be more narrowly tailored because Mr.

Guttman’s litigation conduct cannot reasonably be ex-

pected to be confined to future pro se litigation related

only to the parties and subject matter of the present case.

III. Conclusion

The judgments of the district court are AFFIRMED.

Entered for the Court

Mary Beck Briscoe

Circuit Judge

App. 14

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

STUART T. GUTTMAN,

Plaintiff(s),

vs. CIVIL NO. 04-433 WPJ/WDS

JOEL WIDMAN, individually

and in his capacity as a

member of the State Bar of

New Mexico Disciplinary Board;

VIRGINIA L. FERRARA,

individually and in her capacity

as a member of the State Bar of

New Mexico Disciplinary Board;

HERBERT SILVERBERG; THE

NEW MEXICO STATE BAR; and

PATRICIA MADRID, individually

and in her capacity as

ATTORNEY GENERAL of the

State of New Mexico

Defendant(s).

MEMORANDUM OPINION AND ORDER

GRANTING SUMMARY JUDGMENT

THIS MATTER comes before the Court upon a Motion

for Summary Judgment filed by “‘sciplinary Board,

Patricia Madrid, Virginia L. Ferrara, and Joel Widmon

[sic] on July 10, 2005 (“State Defendants” or “Defendants”

for purposes of this motion) (Doe. 105), and Plaintiff’s

Motion for Summary Judgment, filed July 29, 2005 (Doc.

111). Having considered the parties’ briefs and the appli-

cable law, I find that Defendants’ motion is well-taken and

will be granted.

App. 15

Background

Plaintiff is proceeding pro se in this action. Sometime

in late 2000 or early 2001, Stuart Guttman lost his license

to practice medicine as a result of proceedings before the

New Mexico Board of Medical Examiners. Defendant

Silverberg represented Plaintiff in those proceedings.

Plaintiff contends that the State Defendants violated his

First Amendment rights because they permitted Mr.

Silverberg to continue to practice law in New Mexico

despite a temporary suspension of his license and several

complaints that had been filed against him prior to his

representation of Mr. Guttman before the Board of Medi-

cal Examiners.’ Plaintiff asserts that the confidentiality

policy espoused by the Disciplinary Board of the State Bar

of New Mexico (“Disciplinary Board”) protects attorneys

who have complaints filed against them from public

scrutiny. He contends that the Disciplinary Board’s confi-

dentiality policy, as well as its failure to take action

against Silverberg or disclose the complaints filed against

him, has caused him irreparable harm and damages.

Plaintiff seeks monetary and injunctive relief.

Discussion

Plaintiff’s claims take aim at Rule 17-304 of the New

Mexico Rules, which covers the confidentiality of investi-

gations and hearings conducted by the Disciplinary Board.

’ Plaintiff has also filed suit against Silverberg as a sole Defendant

in state court, alleging negligence, misrepresentation, fraud and unfair

trade practices, all based on Silverberg’s legal representation of

Plaintiff before the medical board. That case was removed to federal

court and ultimately remanded back to state court. See, Civil No. 04-

1188, Docs. 1 & 21).

App. 16

For purposes of this motion, the Court refers to the copy of

the rule which Defendants have attached to their Exhibit

A. Defendants advance four theories as a basis for dis-

missal, all of which have merit. Since some of the theories

would result in only partial dismissal, the Court addresses

all of Defendants’ arguments.

Le dard

Summary judgment is appropriate when there is no

material factual dispute that a factfinder could reasonably

resolve in favor of either party. See Anderson v. Liberty

Lobby. Inc., 477 U.S. 242, 247-48 (1986), cited in Exum vs.

United States Olympic Committee, 389 F.3d 1130, 1135

(10th Cir. 2004)

I agree with Defendants that in his response to

Defendants’ summary judgment motion, Plaintiff has

failed to properly and specifically rebut Defendants’

statement of undisputed facts, according to the require-

ments of Fed:R-Civ.P. 56(e). While Plaintiff is afforded

some leeway virtue of his pro se status, this less stringent

standard does not apply to the Plaintiff’s obligation to

follow this Court’s procedural rules, which are readily

available to Plaintiff. See, U.S. v. Distefano, 279 F.3d 1241,

1245 (10th Cir. 2002) (“In general, litigants proceeding pro

se are held to the same procedural standards as those with

counsel”). Plaintiff has presented no reason to lift that

obligation. He is a medical doctor whose litigation history

should provide some familiarity with the procedural

requirements of litigating a case in federal court. Thus,

Plaintiff can fairly be deemed to have admitted Defen-

dants’ statement of facts, thereby confirming that no

genuine issue of material fact exist and that Defendants

App. 17

are entitled to summary judgment. The Court turns to the

issues in order to determine whether the Court should

“accept as true all material facts asserted and properly

supported in the summary judgment motion.” Reed uv.

Bennett, 312 F.3d 1190, 1194-95 (10th Cir. 2002) (in con-

text of plaintiff’s failure to file timely response to sum-

mary judgment motion).

- I, Eleventh Amendment

Defendants first argue that the entire case is barred

by the Eleventh Amendment to the United States Consti-

tution. The Eleventh Amendment to the United States

Constitution bars suits in federal courts for damages

- against states, state agencies, and state officials in their

official capacities unless the state unequivocally waives its

immunity or Congress expressly abrogates the immunity

by creating a statutory cause of action. See Kimel v.

Florida Board of Regents, 528 U.S. 62, 73 (2000). However,

Plaintiff is suing Defendants Widman, Ferrara and Ma-

drid in their official as well as individual capacities. Thus,

the Eleventh Amendment bar applies only to dismissal of

the State Defendants in their official capacities. Kentucky

v. Graham, 473 U.S. 159, 165 (1985) (action filed against a

state official in official capacity is simply “another way of

_ pleading an action against an entity of which an officer is

an agent” (quoting Monell v. New York City Dept of Soc.

Serv., 436 U.S. 658, 690 n.55 (1978)). Further, Plaintiff

requests injunctive relief, although the exact nature of the

requested relief is unclear.’ Defendants would not be

* Count III of the Amended Complaint, “Application for Injunctive

Relied” does not specify the nature of the injunctive relief requested.

However, because Plaintiff is proceeding pro se, the Court construes his

(Continued on following page)

App. 18

immune from claims for prospective injunctive relief. See,

e.g., Kentucky, 473 U.S. at 167 n. 14) (defendant sued in

official capacity as Attorney General was not entitled to

Eleventh Amendment immunity from claims for prospec-

tive injunctive relief ).°

Thus, this argument proposed by Defendant effec-

tively dismisses claims against the State Defendants with |

regard to their official capacity, and with regard to Plain-

tiffs claims for monetary damages.

II. Naming of Improper Party

Defendants contend that Plaintiff has mistakenly

included Defendant Madrid, the Attorney General of the

State of New Mexico, as a named Defendant in this case.

To succeed on a complaint brought pursuant to 42 U.S.C.

§ 1983 under which Plaintiff brings his First Amendment

claim, Plaintiff must allege some personal involvement by

each Defendant in the constitutional violation. Meade v.

Grubbs, 841 F.2d 1512, 1527-28 (10th Cir. 1988).

Plaintiff’s allegations are specifically directed to the

creation and implementation of the policy utilized by the

Disciplinary Board not to disclose or publicize complaints

against an attorney to the general public. It is undisputed

that Defendant Madrid is not a member of the Discipli-

nary Board, and does not enforce the Disciplinary Rules of

somewhat inartful pleading liberally. See Shabazz v. Askins, 14 F.3d

533, 535 (10th Cir. 1994).

* It is undisputed that the Disciplinary Board is a creation of the

Supreme Court of the State of New Mexico, serves as an agent of the

Court and as such is a New Mexico entity. Defts’ Undisp. Mat’ Fact No.

App. 19

the Supreme Court of the State of New Mexico. Plaintiff

has failed to show any connection between Defendant

Madrid’s conduct and the alleged First Amendment

violation. Thus, Plaintiff’s claims against Defendant

Madrid in both her individual and official capacities will

be dismissed.

Ill. New Mexico Tort Claims Act

Defendants move for dismissal of Plaintiff’s claims

under the Act even though Plaintiff does not specifically

allege a claim under the New Mexico Tort Claims Act,

N.M.S.A. 1978 § 41-4-1 to § 41-4-27 (the “Act,” or “Tort

Claims Act”). Because of Plaintiff’s pro se status, the Court

will construe his claims under this theory as well. Defen-

dants argue that immunity has not been waived under the

Act for the alleged conduct, and also that even if Defen-

dants were not immune, Plaintiff has not complied with

the necessary notice required to permit such claims.

A. Waiver of Immunity

The Tort Claims Act provides governmental entities

and public employees with immunity from tort suits

unless there is a specific waiver of that immunity set forth

under the Act. Weinstein v. City of Santa Fe, 121 N. M.

646, 649 (1996). These waivers apply to torts of employees

who are acting within the “scope of duties” which is

defined as those duties which “a public employee is re-

quested, required or authorized to perform by the govern-

mental entity, regardless of the time and place of

performance.” N.M.S.A. § 41-4-3(G); Quezada v. County of

Bernalillo, 944 F.2d 710, 720 (10th Cir. 1991) (citation

omitted). The court must strictly construe any provision

App. 20

purporting to waive governmental immunity. Armijo v.

Department of Health & Environment, 108 N. M. 616, 618

(Ct. App. 1989).

Plaintiff does not allege or suggest in any of his

pleadings, or in his discovery responses which are at-

tached as exhibits to the State Defendants’ motion, that

Defendants were not acting within the scope of their

duties. Rather, he concedes that Defendants were acting in

accordance with Rule 17-304’s directive, and takes issue

with the validity or constitutionality of the rule itself.

Therefore, a suit against any of the State Defendants

requires that the alleged conduct fall under a waiver of

immunity under the Tort Claims Act. However, Plaintiff

does not refer to any specific provision in the Act that

would allow suit to be brought against Defendants. Nor

does he allege claims or set forth any facts that would

arguably fall within a waiver of immunity.

B. Notice under the Tort Claims Act

Alternatively, Defendants contend that even if Plain-

tiff properly alleged a viable claim for which immunity

was waived under the Tort Claims Act, he has failed to

satisfy the pre-requisites for filing a tort claim against

state actors. The Act requires timely written notice to the

public entity being sued within 90 days of the occurrence

giving rise to the claim for which immunity has been

waived under the Tort Claims Act. § 41-4-16(A). It is

undisputed that Plaintiff did not provide notice of his

intention to file a tort claim to the proper public entity

(which would be in this case, as Defendants note, the risk

management division of the state of New Mexico). See,

City of Las Cruces v. Garcia, 102 N.M. 25 (1984) (failure to

App. 21

comply with the notice provisions of the Act was fatal to

the complaint against Defendant).

C. Statute of Limitations

As a final basis for dismissal of any claims brought by

Plaintiffs against Defendants under the Tort Claims Act,

Defendants contend that Plaintiff is further barred by the

two-year applicable statute of limitations under the Act.

See, N.M.S.A. § 41-4-15(A). The underlying events oc-

curred “[o]Jn or about March, 2000 through December,

2000, which is more than three years prior to the filing of

the lawsuit on April 20, 2004. Amended Complaint, { 7.

In sum, Plaintiff’s allegations construed as claims

under the Tort Claims Act fail because (1) the Court lacks

jurisdiction in the absence of a waiver of immunity by the

Act; (2) Plaintiff has failed to comply with necessary notice

required to permit these claims to go forward; and (3)

Plaintiff is barred by the statute of limitations under the

Act.

IV. Constitutionality of Rule 17-304

This last of Defendants’ arguments goes to the heart

of Plaintiff’s claims. Sometime in the mid to latter part of

2000, Plaintiff asked for information on all complaints

which had been filed regarding Defendant Silverberg. The

Disciplinary Board responded to the request by informing

Plaintiff that with the exception of formal disciplinary

measures, all filed complaints were kept confidential

pursuant to Rule 17-304. Plaintiff essentially challenges

the constitutionality of NMRA, Rule 17-304, contending

that the rule itself, as well as the individual Defendants’

compliance with the rule, restricts his right to free speech

App. 22

guaranteed under the First Amendment. However, Plain-

tiff offers no dispute of fact or viable arguments to rebut

Defendants’ arguments which I find are supported by the

appropriate authority.

Rule 17-304 is one of a set of Rules Governing Disci-

pline which were promulgated by the New Mexico Su-

preme Court applicable to the admission, conduct,

discipline and procedures governing the practice of law in

New Mexico. The New Mexico Supreme Court has inher-

ent constitutional power to define and regulate the prac-

tice of law, and thereby to promulgate these rules. State

Bar v. Guardian Abstract & Title Co., Inc., 91 N.M. 434,

439 (N.M. 1978) (citations omitted).

Plaintiff’s contentions, as liberally construed from the

allegations in the Amended Complaint, can be addressed

on two levels: (1) that Rule 17-304’s confidentiality re-

quirement violates his right to free speech; and (2) that

the Disciplinary Board’s failure to publicize complaints

filed against Mr. Silverberg has “irreparably harmed” him

and caused him to suffer damages. Amended Complaint,

q 24.

As Defendants note, the confidentiality provisions of

Rule 17-304 apply to disciplinary counsel and the Discipli-

nary Board, not to Plaintiff. See Rule 17-105(C) (imposing

duty of confidentiality on disciplinary counsel). In Fernan-

dez-Wells v. Beauvais, 127 N.M. 487 (N.M.App. 1999),

which is cited by Defendants, the court noted that Rule 17-

304 does not state who must keep confidential those

investigations and hearings conducted by or under the

direction of disciplinary counsel. In that case, the com-

plainant learned that an informal admonition had been

given to the attorney-respondent on the basis of his

App. 23

complaint, and reported the admonition to the office of the

Secretary of State along with another complaint he had

filed. The respondent sued for invasion of privacy among

other tort-theories. The court concluded that short of the

existence of a confidential relationship between complain-

ant and the investigated attorney (or any other relation-

ship which might give rise to an independent duty not to

disclose), Rule 17-304 does not prevent disclosure by third

parties. Such disclosure would not be actionable as a

public disclosure of private facts and was otherwise

insufficient to support a claim in tort. Id., 127 N.M. at 491.

Plaintiff’s reliance on a Tennessee state court case,

Doe v. Doe, 127 S.W.3d 728 (2004), is misplaced. That case

involved a Tennessee disciplinary rule which, as Defen-

dants note, is unlike ours in that it imposed confidentiality

on all parties. The rule was found to be too expansive and

therefore violative of First Amendment standards, and a

new rule was adopted. Plaintiff is not, and never was,

similarly restricted, even though he apparently believes he

was. Thus, Defendants did not violate Plaintiff’s right to

free speech with regard to complaints Plaintiff made

against Mr. Silverberg. Any restriction on Plaintiff’s

speech regarding these complaints was self-imposed.

Because Plaintiff’s non-disclosure of complaints did not

occur as a result of Defendants’ conduct, Plaintiff’s First

Amendment claim based on this theory fails.

The other level at which Plaintiff’s allegation can be

read is a challenge to the constitutionality of Rule 17-304.

The rule’s confidentiality requirements applies only to

complaints and investigations, subject to certain excep-

tions which allow disclosure. NMRA, Rule 17-105(C) (duty

to keep “all complaints and other disciplinary matters

confidential) (emphasis added). Disbarments, definite and

App. 24

indefinite suspensions and public censures are published

in the New Mexico Reports and the state Bar Bulletin.

Formal reprimands by the Disciplinary Board are pub-

lished in the Bar Bulletin. NMRA, Rule 17-206.

Because the confidentiality afforded complaints

applies to “all” complaints, the restriction against disclo-

sure is not based on content. See, PeTA et al v. Rasmussen

et al, 298 F.3d 1198 (10th Cir. 2002)‘ Content-neutral

restrictions are permissible “if they are narrowly drawn to

achieve a significant governmental interest and if they

allow communication through other channels.” Mesa v.

White, 197 F.3d 1041, 1045 (10th Cir.1999) (citing Perry

Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37,

45 (1983)).

Plaintiff concedes that he was provided information

about public disciplinary measures that were taken. Ex. B,

Pitff’s Ans. to Interrog. No. 15. As previously mentioned,

the publication restriction applies only to complaints and

investigations — formal reprimands, disbarments, definite

and indefinite suspensions and public censures are pub-

lished. Further, the restriction is subject to numerous

exceptions within Rule 17-304(A\1), (2), and (B). As such,

the rule is not overly restrictive, and is narrowly drawn to

* Content-neutral restrictions are subject to a lesser degree of

scrutiny than content-based restrictions. Mesa v. White, 197 F.3d 1041,

1045 (10th Cir.1999) (citing Perry Educ. Ass'n v. Perry Local Educators’

Ass’n, 460 U.S. 37, 45 (1983)). Plaintiff refers to the restriction imposed

by the confidentiality and publication policy in the rule as “content-

based.” See, Ex. B, Pitff’s Answers to Interrog. No. 10. However, this is

legally incorrect. Plaintiff misapprehends the way courts determine

whether speech is content-based or content-neutral. Since the policy of

non-publication and confidentiality applies to all complaints filed, and

not certain types of complaints, the restriction is neutral as to content.

App. 25

meet the significant government interest in protecting the

due process rights of individuals against whom complaints

have been lodged before a determination is made. At the

same time, the restrictions allow the release of pertinent

information to the public.*

V. Plaintiff’s Motion for Summary Judgment

Plaintiff has filed his own motion for summary judg-

ment, and seeks relief in the amount of five million dol-

‘lars. In addition to this motion being untimely filed,’ the

Court finds that it has no merit. Thus, Plaintiff’s summary

judgment motion will be denied.

Conclusion

In sum:

(1) Defendants’ motion based on Eleventh Amend-

ment immunity succeeds only with regard to those claims

for monetary damages against the State Defendants in

* Plaintiff cites to First Amendment cases involving restriction of

speech. For example, R.A.V. v. City of St. Paul, Minn., 505 U.S. 377

(1992) involved a constitutional challenge to a city ordinance. In Boos v.

Barry, 485 U.S. 312 (D.C. 1988), the plaintiff challenged the constitu-

tionality of a District of Calumbia provision prohibiting display of signs

bringing foreign government into disrepute within a certain area. These

cases have nothing to do with disciplinary rules, and are of little

relevance to Plaintiff’s claims, nor do they aid in the Court’s analysis of

the issues.

* The Amended Scheduling Order extended only the deadline for

the State Defendants to file a summary judgment motion. See, Doc. 104.

The deadline for all other dispositive motions, including Plaintiff's

summary judgment motion, was February 10, 2005. See, Doc. 39 (Initial

Pretrial Report).

App. 26

their official capacity, and only with regard to Plaintiff’s

claims for monetary damages; ;

(2) Defendant Madrid will be dismissed from this

action because there are no allegations which suggest a

connection between Defendant Madrid’s conduct and

Plaintiff’s alleged injuries;

(3) Any of Plaintiff’s claims which could be construed

as brought under the New Mexico Tort Claims Act will be

dismissed because (a) the-Court lacks jurisdiction in the

absence of a waiver of immunity by the Act; (b) Plaintiff

has failed to comply with necessary notice required to

permit these claims to go forward; and (c) Plaintiff is

barred by the statute of lintitations under the Act;

(4) Defendants’ last argument provides a basis for

dismissal of all of Plaintiff’s claims against all State

Defendants. Plaintiff fails to demonstrate conduct by any

of the State Defendants which violates his First Amend-

ment rights. In addition, Plaintiff has failed to demon-

strate how the confidentiality provisions within NMRA 17-

304 violate the First Amendment.

(5) Plaintiff’s motion for summary judgment is

denied.

THEREFORE,

IT IS ORDERED that Plaintiff’s Motion for Sum-

mary Judgment (Doc. 111) is hereby DENIED;

_ [IT IS FURTHER ORDERED that the State Defen-

dants’ Motion for Summary Judgment (Doc. 105) is

hereby GRANTED for reasons described above, thereby

DISMISSING all of Plaintiff’s claims against all Defen-

dants in their entirety.

App. 27

A Judgment in accordance with this Memorandum

Opinion and Order shall issue.

/s/ (Illegible]

UNITED STATES

DISTRICT JUDGE

App. 28

- UNITED STATES CGURT OF APPEALS

FOR THE TENTH CIRCUIT

STUART T. GUTTMAN, M_D.,

Plaintiff-Appellant,

JOEL WIDMAN, individually and

in his capacity as a member of the

New Mexico Supreme Court

Disciplinary Board; VIRGINIA L.

FERRARA, individually and in

her capacity as a member of the No. 05-2269

New Mexico Supreme Court

Disciplinary Board; HERBERT M.

SILVERBERG; PATRICIA A.

MADRID, individually and in her

capacity as Attorney General of

the State of New Mexico;

DISCIPLINARY BOARD,

an agent of the New Mexico

Supreme Court,

Defendants-Appellees.

ORDER

(Filed July 28, 2006)

Before BRISCOE, McKAY, and BRORBY, Circuit Judges

Appellant’s petition for rehearing is denied.

The petition for rehearing en banc was transmitted to

all of the judges of the court who are in regular active

service. As no member of the panel and no judge in regular

App. 29

active service on the court requested that the court be

polled, that petition is also denied.

Entered for the Court

ELISABETH A. SHUMAKER,

Clerk

by: /s/ Audrey F. Weigh

Deputy Clerk

App. 30

CONSTITUTIONAL AND

STATUTORY PROVISIONS INVOLVED

42 U.S.C. § 1983 reads as follows:

“Every person who, under color of any statute, ordinance,

regulation, custom, or usage, of any State ... subjects, or

causes to be subjected, any citizen of the United States or

other person within the jurisdiction thereof to the depriva-

tion of any rights, privileges, or immunities secured by the

Constitution and laws, shall be liable to the party injured

in an action at law, suit in equity, or other proper proceed-

ing for redress.” - -

———_—

App. 31

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

STUART T. GUTTMAN, M.D., )

Plaintiff,

vs.

JOEL WIDMAN, individually

and in his capacity as a

member of the New Mexico

Supreme Court) Disciplinary

Board; VIRGINIA L. FERRARA,

individually and in her capacity

as a member of the New Mexico

Supreme Court Disciplinary

Board; HERBERT SILVER-

BERG; THE DISCIPLINARY

BOARD, an Agent of the New

Mexico Supreme Court; and

PATRICIA MADRID,

individually and in her

capacity as Attorney General

of the State of New Mexico;

Defendants.

No.

CIV 04-433 WPJ/WDS

Ne eee eae ee ae ee ee ee”

AMENDED COMPLAINT

(Filed May 4, 2004)

COMES NOW Plaintiff Pro Se Stuart T. Guttman and

for his amended complaint against Defendants Joel Wid-

man (hereinafter “Widman”), Virginia L. Ferrara (hereinaf-

ter “Ferrara”), Herbert Silverberg (hereinafter “Silverberg”),

the Disciplinary Board, an agent of the New Mexico

Supreme Court (hereinafter “Disciplinary Board”), and

Patricia Madrid (hereinafter “Madrid”) states:

App. 32

Parties and Jurisdiction

1. Plaintiff is a resident of Truth or Consequences,

New Mexico.

2. Defendants Widman, Ferrara, Silverberg, ard

Madrid are residents of the State of New Mexico.

3. The Disciplinary Board is an agency of the New

Mexico Supreme Court.

4. The cause of action arose in Bernalillo County,

New Mexico and Sierra County, New Mexico.

5. Venue is proper in the District of New Mexico.

6. The Court has jurisdiction over the dispute and

the parties involved.

Issues

7. Onor about March, 2000 through December, 2000,

Plaintiff paid to Defendant Silverberg the sum of

$38,000.00 to defend plaintiff at a medical licensure

hearing on January 10, 2000 before the Impaired Commit-

tee of the New Mexico Board of Medical Examiners, which

hearing resulted in Plaintiff’s being deprived of his license

to practice medicine in the State of New Mexico.

8. Prior to the hearing, per Alternative Writ of

Mandamus, Defendant Silverberg admitted to lack of

preparation.

9. Defendant Silverberg, at the time of hearing,

admitted to lack of preparation.

10. Defendant Silverberg falsely alleged that his lack

of preparation was due to the death of his paralegal.

App. 33

11. While admitting his lack of preparation, Defen-

dant Silverberg retained all monies paid to him by Plain-

tiff.

12. Defendant Silverberg submitted a false itemized

billing to Plaintiff, claiming to have performed work which

was in fact never performed.

13. In 1989 Defendant Silverberg was disciplined by

‘the New Mexico Supreme Court by means of temporary

suspension of his license to practice law.

14. Defendant Silverberg has admitted at hearings

in the United States District Court, District of New

Mexico, that at least six previous complaints had been

filed against him with the Disciplinary Board of the New

Mexico Supreme Court. Defendant Silverberg further

admitted in open court that many of said complaints

involved monetary matters.

15. Even with his previous discipline in 1989 and

numerous complaints since that time, Defendant Discipli-

nary Board has permitted Defendant Silverberg to con-

tinue to practice law in the State of New Mexico.

16. Plaintiff has sent numerous complaints to

Defendant Disciplinary Board regarding the conduct of

Defendant Silverberg.

17. All responses from Defendant Disciplinary Board

to Plaintiff have been marked “Confidential.”

18. Defendant Disciplinary Board has advised

Plaintiff in writing that “With the exception of formal

discipline, an attorney’s disciplinary history, including

filed complaints, is confidential.”

App. 34

19. Per the policy of Defendant Disciplinary Board

as stated a paragraph 18 above, Plaintiff is not allowed to

publicize his complaints against any attorney to the

general public, nor is he allowed to discuss his complaints

of Disciplinary Board responses with other citizens.

20. This policy of confidentiality is in violation of

plaintiff’s rights under the First Amendment to the

Constitution of the United States.

21. The policy of confidentiality is designed to shield

attorneys from adverse publicity.

22. The policy of confidentiality has the effect of

insulating Defendant Disciplinary Board from exposure,

thus keeping their activities secret except for instances of

_ formal discipline of an attorney.

23. The policy of confidentiality further has the

effect of preventing complainants from going to the news

media to disclose their complaints, thus protecting attor-

neys who have been complained against from public

scrutiny.

24. As a result of Defendant Disciplinary Board's

failure or refusal to take action against Defendant Silver-

berg since its 1989 temporary suspension, in the face of

numerous subsequent complaints; and its failure or

refusal to disclose these complaints, Plaintiff has been

- irreparably harmed and has suffered damages.

Count I — Violation of Right of Free Speech

Under the First Amendment to the U. S. Constitution

25. Plaintiff incorporates by reference paragraphs 1

through 24 above.

App. 35

26. By mandating that Plaintiff cannot publicize his

own complaints filed with Defendant Disciplinary Board,

the New Mexico Supreme Court, through the New Mexico

Attorney General, Defendant Madrid, has deprived Plain-

tiff of his First Amendment rights of free speech.

_ 27. Defendant Disciplinary Board relies on Rule 17-

304 of the New Mexico Supreme Court Rules of Procedure

for its position; to-wit (in pertinent part):

RULE 17-304. CONFIDENTIALITY OF IN-

VESTIGATIONS; EXCEPTIONS; HEARINGS

A. Confidentiality. Except as otherwise pro-

vided by this rule, any investigation and any in-

vestigatory hearing conducted by or under the

direction of disciplinary counsel, or their author-

ized agents, shall be entirely confidential unless

and until they:

(1) become matters of public record by:

(a) the filing of a formal specification of

charges with the Disciplinary Board pursuant to

Rule 17-309;

(b) the filing of a summary suspension

proceeding pursuant to Rule 17-207;

capacity proceeding pursuant to Rule 17-208;

(d) the filing of a reinstatement pro-

ceeding pursuant to Rule 17-214; or

(e) the filing of a motion for order to

show cause why a respondent should not be held

in contempt pursuant to Paragraph G of Rule 17-

206; or

App. 36

(2) are otherwise released according to

these rules.

Count II - Damages

28. Plaintiff incorporates by reference paragraphs 1

through 27 above.

29. Defendant Disciplinary Board, under the direc-

tion of Defendant Madrid, as Attorney General of the State

of New Mexico, should have made known to Plaintiff any

and all complaints against Defendant Silverberg.

30. Had Plaintiff known of Defendant Silverberg’s

prior history of having been complained against on at least

six occasions to Defendant Disciplinary Board aa [sic] the

time Plaintiff was searching for legal representation in the

year 2000, he would never have hired Defendant Silver-

berg.

31. As a direct and proximal result of Defendant

Silverberg’s lack of preparation and substandard represen-

tation, Plaintiff has lost his license to practice medicine in

the State of New Mexico and has suffered substantial

monetary damages in an amount to be proven at trial.

32. As a direct and proximal result of Defendant’s

acts and/or omissions, Plaintiff has been wrongfully

stigmatized and has suffered emotional distress.

33. Plaintiff has had to engage other legal counsel to

assist him in attempting to rectify the damage done to him

as a result of Defendant Silverberg’s acts and/or omissions.

App. 37

Count III — Application for Injunctive Relief

34. Plaintiff incorporates by reference paragraphs 1

through 33 above.

35. Plaintiff invokes the doctrine of Ex Parte Young,

209 U.S. 103 (1908). On page 14 of this landmark decision,

the following is stated:

It is simply, an illegal act upon the part of a state

official in attempting, by use of the name of the

State, to enforce a legislative enactment which is

void because unconstitutional. If the act which

the state attorney general seeks to enforce be a

violation of the federal constitution, the officer, in

proceeding under such an enactment, comes into

conflict with the superior authority of the Consti-

tution and he or she in that case is stripped of

his official or represented character and is sub-

jected to the consequences of his individual con-

duct; thus the state cannot impart immunity to

him or her.

JURY DEMAND

Plaintiff demands trial by a jury of 12 persons of all

issues raised in this action.

WHEREFORE, Plaintiff Pro Se Stuart T. Guttman

prays the Court for its order:

1. Finding that Defendants Joel Widman, Virginia L.

Ferrara, the Disciplinary Board of the New Mexico Su-

preme Court, and Patricia Madrid have acted in concert to

deprive Plaintiff of his First Amendment rights of free

speech;

App. 38

2. Finding that through the negligent acts and/or

omissions of Defendant Herbert Silverberg, Plaintiff has

been damaged in an amount to be determined at trial;

3. Ordering Defendants Widman, Ferrara, the

Disciplinary Board of the New Mexico Supreme Court, and

Patricia Madrid to open the records of the Disciplinary

Board to public scrutiny;

4. Ordering injunctive relief;

5. Awarding Plaintiff monetary damages and costs

incurred in bringing this action; and

6. Ordering such other and further relief as the

Court deems just in the premises.

Respectfully submitted,

/s/ Stuart T. Guttman

STUART T. GUTTMAN

P. O. Box 3370

Truth or Consequences,

NM 87901

505-744-4756

Plaintiff Pro Se

Certificate of Service

I hereby certify that I mailed true and correct copies

of the foregoing Complaint and Jury Demand to Joel L.

Widman, Esquire, P. O. Box 1809, Albuquerque, New

Mexico 87103-1804; Virginia L. Ferrara, Esquire, P. O. Box

1809, Albuquerque, New Mexico 87103-1804; Herbert M.

Silverberg, Esquire, 318 Solan Drive, SE, Albuquerque,

New Mexico 87108; Patricia A. Madrid, Esquire, P. O.

Drawer 1508, Bataan Memorial Building, Santa Fe, New

Mexico 87504; and Joe Conte, Esquire, P. O. Box 92860,

App. 39

Albuquerque, New Mexico 87199; on this 4th day of May,

2004.

/s/ Stuart T. Guttman

STUART T. GUTTMAN

App. 40

. UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

STUART T. GUTTMAN, M.D.

Plaintiff/Appellant,

VS. No. 05-2269

JOEL WIDMAN, individually

and in his capacity as a member

of the New Mexico Supreme

Court Disciplinary Board;

VIRGINIA L. FERRARA,

individually and in her capacity

as a member of the New Mexico

Supreme Court Disciplinary

Board; HERBERT M.

SILVERBERG; THE :

DISCIPLINARY BOARD, an

Agent of the New Mexico

Supreme Court; and PATRICIA

MADRID, individually and in

her capacity as Attorney General

of the State of New Mexico;

Defendants/Appellees,

PLAINTIFF/APPELLANT’S

BRIEF IN CHIEF

On Appeal from the United States District Court

for the District of New Mexico

Hon. William P. Johnson, District Judge

District Court Cause No. CIV- 04-433

Oral argument is requested by this Appellant

App. 41

Stuart T. Guttman,

Post Office Box 3370

Truth or Consequences, NM 87901

(505) 744-4756

Plaintiff/Appellant

In terms of this judges bias and promulgation of

sanctions, is the following: The principle of law stated by

the U.S. Supreme Court as “court” are constituted by

authority and they cannot go beyond that power delegated

to them.” If they all [sic] beyond that authority, and

certainly in contravention of it, their judgments and

orders are regarded as nullities. They are void, and this

even prior to reversal, Vallely v. Northern Fire and Marine

Ins. Co., 254 U.S. 348, 41 S. Ct. 116 (1920); See Old Wayne

Mut. I. Assoc. v. McDonough, 204 U.S. 8, 27 S. Ct. 236

(1907).

CONCLUSION

Plaintiff feels that it’s well established that there is a

Constitutional violation by the Disciplinary Bar in New

Mexico of Free Speech per their Rule of Confidentiality.

This Rule as proved herein is totally similar to ones that

have been over-turned in other states. In terms of the

Defendants knowledge of the unconstitutionality thereof,

this is more than proved by the numerous state, federal,

and U.S. Supreme Court citation utilized per the present

brief.

The issue of false affidavits is equally important, since

by doing such state Defendant’s attorney Ms. Turner

volitionally missed the deadline for doing such. Further-

more, her summary judgment should never have been

App. 42

accepted by the court because of the above. In fact Plain-

tiffs summary judgment, was timely as

* * *

App. 43

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

STUART T. GUTTMAN, M.D.

Plaintiff/Appellant,

vs. No. 05-2269

JOEL WIDMAN, individually

and in his capacity as a member

of the New Mexico Supreme

Court Disciplinary Board;

VIRGINIA L. FERRARA,

individually and in her capacity

as a member of the New Mexico

Supreme Court Disciplinary

Board; HERBERT M.

SILVERBERG; THE

DISCIPLINARY BOARD, an

Agent of the New Mexico

Supreme Court; and PATRICIA

MADRID, individually and in

her capacity as Attorney General

of the State of New Mexico;

Defendants/Appellees,

PLAINTIFF/APPELLANT’S

BRIEF IN CHIEF

On Appeal from the United States District Court

for the District of New Mexico

Hon. William P. Johnson, District Judge

District Court Cause No. CIV-04-433

Oral argument is requested by this Appellant

App. 44

Stuart T. Guttman,

Post Office Box 3370

Truth or Consequences, NM 87901

(505) 744-4756

Plaintiff/Appellant

* * *

Confidential. (2) all participants in the proceeding shall

conduct themselves so as to maintain confidentiality of the

proceeding the confidentiality requirement extends to all

aspects of the disciplinary process; complaint investiga-

tion, hearing, and judgment. This is completely analogous

to the situation in New Mexico.

The standard for determining confidentiality is also

discussed, in the Supreme Court case of Tennessee involv-

ing Doe v. Doe. There it’s noted that the Free Speech

clause of the First Amendment to the United States

Constitution provides that congress shall make no law...

abridging the Freedom of Speech. The protection of Free

Speech Rights is-noted-to-be as broad as the First Amend-

ment citing Leech v. American Book Sellers Association

Inc., 582 S.W. 2d 738, 745 (Tenn. 1979). An excellent

analysis of the sanctity of Free Speech and the Fist [sic]

Amendment is stated by the United States Supreme Court

in Tory et al. v. Cochr 1, No. 03-1488 (May 31, 2005).

Wherein is the followin,.

The injunction, as written, now amounts to an

overly broad prior restraint upon speech, lacking

plausible justification. Nebraska Press Ass. v.

Stuart, 427 U.S. 539, 559 (1976) (“[Plrior re-

straints on speech and publication are the most

serious and the least tolerable infringement on

First Amendment Rights.”); Pittsburgh Comm’n

on Human Relations, 413 U.S. 376, 390 (1973) (a

App. 45

prior restraint should not “sweel[p]” any” more

broadly than necessary”). As such, the Constitu-

tion forbids it. Carroll v. President and Comm'rs,

of Princess Anne, 393 U.S. 175, 183-184 (1968).

With the above in mind the Attorney General of the

State [sic] Tennessee was called in to consider as a thresh-

old matter the constitutional issue, (like-wise in the

instant matter, the Attorney General of New Mexico has

been named for the very same reason). In the Tennessee

decision a determination of what speech is subject to the

confidentiality requirement could not be made without

reference to the content of the speech. In fact other courts

(beside the Tennessee Supreme Court) have found the

confidentiality provision to be a content based restriction,

Doe v. Supreme Court of Florida, 734 F. Supp. 981, 985

(S.D. Fla. 1981); petition of Brooks, 678 A. 2d 140, 143

(N.H. 1996.). Further court cases showing that content

based restrictions being invalid are R. A. V. v. City of St.

Paul, Minnesota, 505 U.S. 312, 321 (1988) and noting that

this provision must be subjected to the most exacting

scrutiny is Boos v. Barry, 485 U.S. 312, 321 (1988). Its [sic]

further noted that under the strict scrutiny standard the

state has the burden of proving (1) that the restriction in

[sic] necessary to serve a compelling interest and (2) that

’ it is narrowly drawn to achieve that end Burson v. Free-

man, 504 U.S. 191, 198 (1992).

In analyzing the Constitutionality of the Confidential-

ity Provision, one turns to In Landmark Communication

Inc v. Virginia, 435 U.S. 829 (1978). The United States

Supreme Court struck down a Virginia confidentiality

provision relative to judicial disciplinary proceeding the

court rejected the argument that the confidentiality

App. 46

provision was justified by the purpose of protecting the

reputation of judges and the judiciary:

Our prior cases have firmly established, however,

that injury to official reputation is an insufficient

reason “for repressing speech that would other-

wise be free.” The remaining interest sought to

be protected, the institutional reputation of the

courts, is entitled to no greater weight in the con-

stitutional scales.

In fact relying on Landmark Communications, the

New Hampshire Supreme Court held that the state’s

interest in protecting the reputation of the State Bar and

individual attorneys from frivolous complaints was insuffi-

cient to constitute a compelling state interest, Petition of

Brooks, 678 A. 2d at 144-145 the United States District

Court for the Southern District of Florida conclude that “if

maintaining the reputation of the judiciary as an abstract

end is insufficient to justify encroaching upon the robust

exercise of Free Speech, then maintaining the reputation

of lawyers of the Bar is, in our view equally insufficient”

Doe v. Supreme Court of Florida, 734 F. Supp. at 986 as far

as the issue of relating judges attorney that is answered

with the following although the court in Petition of Brooks,

recognized that attorneys are not public officials in the

sense that judges are, it concluded that the fundamental

importance of the First Amendment combined with the

role of attorney's as officers of the court, compels the

application of similar principles of the free expression to

the reputational interest of attorney, at least with respect

to issue in this case. Thus they noted that the reasoning in

Petition of Brook, was sound, the following observation by

the Federal District Court in Doe v. Supreme Court of

Florida, is extremely relevant:

App. 47

“The idea that the suppression of truthful criti-

cism of lawyers would somehow enhance or pro-

tect. The reputation of the Bar is not persuasive.

To the contrary, continuing the prohibitory effect

of the rule after a grievance against an attorney

is founds [sic] to be meritorious is far more likely

to engender suspicion then to foster confidence.”

The Supreme Court of Tennessee concluded that the

three interests advanced by the Attorney General protec-

tion of reputation of an attorney and the Bar from merit-

less complaints, protection of anonymity of complainants

and other person supplying information to the Board, and

maintenance of the integrity of pending investigation

while legitimate, are not sufficiently compelling to justify

the restriction on Free Speech, particularly considering

the broad slope of its confidentiality requirement.

The above has also been explored in Airport Commis-

sioners v. Jews for Jesus, Inc., 482 U.S. 569 (1987). Here is

stated the following:

“In these quintessential public forums, the gov-

ernment may not prohibit all communicative ac-

tivity. For the state to enforce a content based

exclusion it must show that its regulation is nec-

essary to serve a compelling state interest an

that is narrowly drawn to achieve that end .

I. STATUTE OF LIMITATIONS

* * *

App. 48

RULE 17-304. CONFIDENTIALITY

OF INVESTIGATIONS;

EXCEPTIONS; HEARINGS

A. Confidentiality. Except as otherwise provided

by this rule, any investigation and any investigatory

hearing conducted by or under the direction of disciplinary

counsel; or their authorized agents, shall be entirely

confidential unless and until they:

(1) become matters of public record by:

(a) the filing of a formal specification of charges

with the Disciplinary Board pursuant to Rule 17-309;

(b) the filing of a summary suspension proceed-

ing pursuant to Rule 17-207;

proceeding pursuant to rule 17-208;

(d) the filing of a reinstatement proceeding pur-

suant to Rule 17-214; or

(e) the filing of a motion for order to show cause

why a respondent should not be held in contempt pur-

suant to Paragraph G of Rule 17-206; or

(2) are otherwise released according to these rules.

B. Exceptions. Information relating to discipli-

nary proceedings may be released by disciplinary counsel

prior to filing formal charges as follows:

(1) where investigation reasonably causes discipli-

nary counsel to believe in good faith that a crime may

have been committed by an attorney, the name of the

subject, general nature of the possible crime, relevant facts

and documents and names of known witnesses to relevant

App. 49

facts shall be made available to an appropriate prosecut-

ing authority;

(2) if the respondent-attorney has filed with the

office of disciplinary counsel a written waiver of confiden-

tiality; or

(3) upon written request from the Client Security

Fund Committee, such information as may assist the

committee in determining the validity or worthiness of a

specific claim filed with that committee may be submitted

to that committee with the understanding and condition

that committee members receiving and reviewing such

information are subject to the provisions of Subparagraph

(5) of Paragraph C of Rule 17-105 as well as the rules of

confidentiality governing the Client Security Fund Com-

mittee.

C. Exceptions to Public Record. The Supreme

Court, the Disciplinary Board or a hearing committee may,

in the exercise of discretion, place the following matters

under seal, upon request of disciplinary counsel, the

respondent or sua sponte:

(1) documents, pleadings and testimony relating to

the physical or mental condition or treatment of the

respondent;

(2) matters regarding allegations of substance abuse

by the respondent; or

(3) matters resulting in private discipline or dis-

missal pursuant to a consent to discipline agreement, the

recommendation of a hearing committee, the decision of

the Disciplinary Board or the Supreme Court.

App. 50

D. Hearings. Formal proceedings conducted before

a hearing committee or the Disciplinary Board shall be

open to the public. Any person may publicly comment

thereon. Attorneys remain subject to the restrictions of

Rule 16-306.

E. Disposition. Complainants shall be advised

every six (6) months as to the status of the investigation

and shall be immediately advised of the final disposition

of their complaints.

[Amended effective February 14, 1995.]

App. 51

THE CONFIDENTIALITY OF

LAWYER ETHICS INVESTIGATIONS

Charles E. Lundberg

Chair, Minnesota Lawyers

Professional Responsibility Board

Reprinted from Minnesota Lawyer (January 22, 2001)

With very few exceptions, whenever the Lawyers Board,

the Office of Lawyers Professional Responsibility or one of

the District Ethics Committees conducts an ethics investi-

gation of a Minnesota lawyer, all of the information

concerning the investigation is absolutely confidential by

Supreme Court rule. Anyone who has ever been involved

in the Minnesota legal ethics system learns this from the

very beginning: The confidentiality of ethics proceedings

under Rule 20 is one of the pre-eminent values of the

entire attorney discipline system in Minnesota. (For the

full text of Rule 20, see accompanying side bar.)

Having served for almost 18 years in various capacities in

the legal ethics arena, I am well aware of this emphasis on

confidentiality. I was therefore startled when I saw the

banner headline and the first few sentences of the follow-

ing article in the Dec. 22, 2000, issue of the Star Tribune:

EX-COURT CANDIDATE WERSAL FACES

LAWYERS OFFICE PROBE

Former Minnesota Supreme Court candidate

Greg Wersal is being investigated by the state

Office of Lawyers Professional Responsibility for

allegedly making misleading statements about

justices on the high court.

The probe could result in sanctions as severe as

the loss of his license.

App. 52

I was- stunned. How in the world did this confidential.

information about a pending ethics investigation get to the

Star Tribune? Could there have been a leak from within

the Lawyers Board office? It hardly seemed possible. Few

things are considered more sacred at the Lawyers Board

than confidentiality.

I then remembered that the attorney in question was

himself no stranger to the tactical use of headlines and

press releases. (Indeed, Mr. Wersal had generated a

tremendous amount of publicity during the campaign

when he filed for office using a new middle name of Scan-

dinavian heritage.) It occurred to me that perhaps he had

orchestrated the press coverage of the ethics investigation

himself.

After checking with the Star Tribune reporter, I learned

that Mr. Wersal had in fact been the source of the informa-

tion — a critical fact that regrettably was not made clear in

the article. (1 have heard from several people who assumed

that the information may have been leaked to the press by

someone inside the system, an assumption that might

have seemed plausible to some, in light of Mr. Wersal’s

recent spate of well-publicized federal lawsuits against the

Board as part of his campaign strategy.)

A Look at Rule 20

The principle behind Rule 20 is fairly straightforward:

Since publicity about an ethics complaint could ruin an

attorney's reputation, information about an investigation

should not be made public unless and until certain due

process hurdles are met, including independent review to

confirm the ethics charges are well-grounded. As a result,

App. 53

until about seven years ago, the Board was not allowed to

comment at all about non-public matters.

In the mid-1990s, the rules were amended to allow certain

very limited disclosures, but the general rule remains the

same — proceedings relating to an ethics investigation of a

lawyer are confidential and shall not be disclosed.

There are a couple of obvious exceptions. First and fore-

most, once the investigation is completed and a determina-

tion is made that public discipline should be sought, the

veil of confidentiality is lifted. Rule 20(a)(2) expressly

allows disclosure of information after a probable cause

determination has been made.

Of course, a lawyer who is the subject of an ethics investi-

gation can always choose to make the information public.

(It could hardly be otherwise, in light of First Amendment

constraints.) Where the complainant is or was the attor-

ney’s client, information about the attorney’s response to

the complaint is shared with the complainant. Finally, the

rule also allows the Director to confirm certain very

limited “special matters,” including the fact that a matter

is under investigation.

Confidentiality is the Rule

It might surprise some to learn that not all states require

such strict confidentiality in ethics investigations. In

Oregon, for example, confidentiality doesn’t exist — all

disciplinary records and proceedings are open and avail-

able for public inspection from the very moment a com-

plaint is filed.

In Minnesota, however, confidentiality is the rule. The

reason for this is simple: The mere fact that an ethics

App. 54

complaint has been filed against a lawyer, or that a lawyer

is being investigated for any reason, could have severe

adverse effects on the lawyer’s reputation if it became

publicly known. In fact, the disclosure of an ethics investi-

gation could irreparably damage the attorney's reputation

for integrity, especially if the complaint is ultimately

determined not to be meritorious (as most ethics com-

plaints are).

Thus, unless and until an independent review of the

charges has been conducted by a Lawyers Board panel and

a determination made that there is probable cause to

believe that public discipline is merited, all information

concerning ethics proceedings is kept confidential.

This policy can sometimes create problems for the Direc-

tor’s Office, which occasionally gets calls from clients or

potential clients asking whether a particular attorney is

reliable and ethical. For example, imagine a situation in

which a potential client who is about to entrust a lawyer

with substantial financial assets wants to be sure the

attorney is trustworthy. What if that attorney was pres-

ently under investigation for misappropriating client

funds? Even though this hypothetical situation seems to

have a strong intuitive force in favor of disclosure, the

rules would not allow it.

The confidentiality rule can cause practical problems in

other situations as well. Consider the recent Star Tribune

article. When the reporter called the Director’s Office

seeking further information about the investigation, the

Director was unable to clarify even certain elementary

matters for the reporter without Mr. Wersal’s consent. For

example, the Director could not let the reporter know how

ridiculous it was to suggest that “sanctions as severe as

App. 55

the loss of his license to practice law” could ever result

from the type of conduct referred to in the article (i.e.

alleged misstatements in a judicial election campaign).

A situation that occurred several years ago provides

another problem generated by the confidentiality rule. A

district ethics committee investigator decided to use his

legal assistant to help with a particularly document-heavy

investigation. When the Director’s Office learned of that

fact, it immediately alerted the investigator that such

conduct could well violate Rule 20 because the legal

assistant was not a member of the district ethics commit-

tee and therefore could not properly be allowed to view the

materials relating to the investigation.

There are a number of important benefits of the rule

requiring confidentiality of ethics investigations. In

addition to protecting the respondent lawyer’s reputation,

confidentiality also protects certain complainants who may

have a legitimate complaint but who might be hesitant to

bring the complaint at all if they knew it would be made

public. Moreover, the fact that confidentiality will be

maintained until an independent confirmation of unethical

conduct has been made may well prompt more lawyers to

report suspected unethical conduct by other lawyers.

The restraints imposed by confidentiality can sometimes

be very subtle and problematic. I have more than once

caught myself saying something in another context, such

as a CLE presentation on ethics which I suddenly realized

could have inadvertently involved confidential informa-

tiow,

While publicizing the details of past private discipline can

be positively helpful as a method of educating lawyers

about potential ethics pitfalls (see any of the Director’s

App. 56

“Summary of Admonitions” columns, published every

March in Bench & Bar, which can be accessed from the

Board’s Web' page, www.courts.state.mn.us/Iprb), we

constantly guard against any breach of confidential

identifying information. :

Finally, and perhaps most important, the general rule of

confidentiality also allows for the very existence of private

discipline for matters that clearly warrant some discipline,

but that are not serious enough to be made public. The

possibility of ¢ private resolution (an admonition or

probation) for relatively low-level misconduct can provide

@ valuable incentive for a lawyer to “clean up his act” and

avoid problems in the future.

SIDEBAR

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.