520 F.3d 1183 (10th Cir. 2008), 06-2188, Stein v. Disciplinary Bd. of Supreme Court of New Mexico

Docket Nº:06-2188.
Citation:520 F.3d 1183
Party Name:Stuart L. STEIN; The Stein Law Firm, a professional law corporation d/b/a The Stein Law Firm, Plaintiffs-Appellants, v. THE DISCIPLINARY BOARD, OF the SUPREME COURT OF NEW MEXICO; Richard J. Parmley, Jr., Chair; James F. Beckley; Patrick A. Casey; Frankie D. Clemons; Roger L. Copple; Bruce Herr; Michael H. Hoses; Robert S. Murray; Mike G. Paulowsky
Case Date:April 01, 2008
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

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520 F.3d 1183 (10th Cir. 2008)

Stuart L. STEIN; The Stein Law Firm, a professional law corporation d/b/a The Stein Law Firm, Plaintiffs-Appellants,


THE DISCIPLINARY BOARD, OF the SUPREME COURT OF NEW MEXICO; Richard J. Parmley, Jr., Chair; James F. Beckley; Patrick A. Casey; Frankie D. Clemons; Roger L. Copple; Bruce Herr; Michael H. Hoses; Robert S. Murray; Mike G. Paulowsky; William G.W. Shoobridge; Sasha Siemel; Elizabeth E. Whitefield, all members of the disciplinary board; Honorable Petra Maes, Honorable Pamela B. Minzner, Honorable Patricio M. Serna, Honorable Richard C. Bosson, Honorable Edward L. Chavez, The Chief Justice and Justices of the Supreme Court of New Mexico; Virginia L. Ferrara; Sally Scott-Mullins; Sarah Karni, Disciplinary Counsel & Assistant Disciplinary Counsel, Defendants-Appellees.

No. 06-2188.

United States Court of Appeals, Tenth Circuit.

April 1, 2008


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Stuart L. Stein, The Stein Law Firm, Albuquerque, NM, for Plaintiffs -Appellants.

Jerry A. Walz, Walz & Associates, Cedar Crest, NM, for Defendants -Appellees.

Before LUCERO, HARTZ, and GORSUCH, Circuit Judges.

HARTZ, Circuit Judge.

This is the latest episode in the battle between attorney Stuart Stein and the Disciplinary Board of the Supreme Court of New Mexico (the Board). Mr. Stein and the Stein Law Firm (Plaintiffs) have apparently won a long struggle over the application of state disciplinary rules to their advertising, but Mr. Stein has lost a separate disciplinary matter regarding his representation of a client. Now before us is the appeal from dismissal of a civil suit filed by Plaintiffs in the United States District Court for the District of New Mexico, a suit that arose from both sets of proceedings. Plaintiffs' claims in the suit expanded considerably over time. This appeal concerns only certain claims against the Board's Chief Disciplinary Counsel, Virginia Ferrara; two Deputy Assistant Disciplinary Counsel, Sally Scott-Mullins and Sarah Karni; and the New Mexico Supreme Court itself. These claims allege that Plaintiffs' constitutional rights were violated (1) by Ms. Ferrara, when she (a) did not serve them with a copy of the opinion by a Board hearing committee in the advertising matter that it could not issue a declaratory judgment, (b) provided the Supreme Court with a copy of the hearing committee's opinion, and (c) requested the Supreme Court to appoint a special review committee to review the opinion; (2) by Ms. Ferrara, Ms. Scott-Mullins, and Ms. Karni in pursuing disciplinary charges regarding Mr. Stein's representation of a former client when they had inadequately investigated the allegations; and (3) by the Supreme Court when it issued a show-cause order and later rejected the hearing committee's opinion on declaratory judgments. The district court dismissed all the claims on the grounds of absolute immunity. We affirm the dismissal. We hold that Ms. Ferrara's actions in the advertising matter did not infringe any constitutionally protected interest

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of Plaintiffs and that all other actions of the defendants were absolutely privileged.


The events leading to Plaintiffs' current litigation began in June 2002 when the Board threatened Mr. Stein with disciplinary action if he did not modify his legal advertisements to comport with the New Mexico Rules of Professional Conduct. Mr. Stein protested that the advertising restrictions were unconstitutional. Plaintiffs claim that Mr. Stein informed the Board's disciplinary counsel that the Legal Advertising Committee was applying the rules in an unconstitutional fashion and that despite being aware of United States Supreme Court precedent on the matter, disciplinary counsel ignored his protests.

In July 2002 Plaintiffs filed their first suit in federal court, requesting, among other relief, an injunction to prevent the Board from acting against Mr. Stein with respect to the advertising. The district court held that Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), required it to abstain from hearing the case because the state disciplinary proceeding was ongoing. It dismissed the case without prejudice, noting that Mr. Stein would have an opportunity to raise his constitutional claims in the state proceeding. See Stein v. Legal Adver. Comm. of the Disciplinary Bd., 272 F.Supp.2d 1260, 1274-75 (D.N.M. 2003) (Stein I). Two later federal cases brought by Plaintiffs within the next year on the same grounds reached the same result. See Stein v. Legal Adver. Comm. of the Disciplinary Bd., 304 F.Supp.2d 1274, 1276 (D.N.M. 2003) (Stein II); Stein v. Legal Adver. Comm. of the Disciplinary Bd., 304 F.Supp.2d 1274 (D.N.M.2003) (unpublished) (Stein III).

In October 2002, while Stein I was pending, the Board filed formal charges against Mr. Stein relating to his advertising. In May 2003 he brought his constitutional challenges in a petition to the Board for a declaratory judgment. That November the Board appointed a hearing committee chaired by Norman Thayer (the Thayer Committee) to consider the declaratory-judgment petition. While the Thayer Committee was considering the petition, the disciplinary charges were stayed. When the Thayer Committee had not reached a decision by December 30, 2003, Mr. Stein moved the committee for judgment, contending that the Legal Advertising Committee had defaulted. Plaintiffs claim that the Thayer Committee never responded.

Meanwhile, in July 2003 the Board had filed a second set of 21 allegations against Mr. Stein, apparently arising out of his representation of a client. A year later a Board hearing committee found four violations of ethical requirements. The New Mexico Supreme Court imposed sanctions on Mr. Stein in September 2005.

On July 26, 2004, Plaintiffs filed the current lawsuit (Stein IV) in federal district court. The original complaint contended that Plaintiffs' free-speech rights were violated by a state rule protecting the confidentiality of disciplinary proceedings. This state rule is not at issue on appeal.

On August 27, 2004, Mr. Stein renewed his motion before the Thayer Committee for a default judgment on his declaratory-judgment petition. In a letter dated September 3, 2004, Ms. Ferrara disclosed to Mr. Stein and the attorney for the Legal Advertising Committee that the Thayer Committee had already filed its opinion (which said that the Committee had no authority to issue declaratory judgments). She also informed them that the New Mexico Supreme Court had been requested to appoint a special panel to review the opinion. Ms. Ferrara's letter apologized

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for the oversight in not providing the attorneys with copies of the opinion. But in a letter dated September 8, she explained to Mr. Stein that the parties had not been provided with copies because findings are generally distributed to the parties when the Board Chair announces which Board members will serve as a panel to review the committee's opinion, and no panel had yet been designated. In that letter she also wrote that the reason for requesting a special review panel composed of persons not members of the Board was that Plaintiffs were suing the Board.

At the time that Mr. Stein learned of the Thayer Committee's opinion, Plaintiffs' appeal in their third federal case, Stein III, was pending before this court. The district court had dismissed the case after finding that the conditions requiring Younger abstention continued to be met. See Stein III, 304 F.Supp.2d 1274. On October 20, 2004, one month before the scheduled oral argument, the New Mexico Supreme Court sua sponte ordered the Plaintiffs and the Legal Advertising Committee to show cause why the court should not (1) reject the Thayer Committee's opinion that it did not have jurisdiction to consider a declaratory action and (2) remand the matter to the Board. On October 26, 2004, the Supreme Court ruled that the Board did have the authority to consider a declaratory action and sent the case back to the Board.

In this court's December 22, 2004, decision in the Stein III appeal, we took judicial notice of the October 26 order of the New Mexico Supreme Court and upheld the district court's dismissal of the case. See Stein v. Legal Advertising Comm. of Disciplinary Bd., 122 Fed.Appx. 954 (10th Cir. 2004) (unpublished). We explained: "The State of New Mexico is attempting to provide Mr. Stein with a forum to present his federal challenges to New Mexico's attorney advertising rules.... [T]he proceedings continue to meet the conditions that require a Younger abstention." Id. at 957.

On January 18, 2005, the Plaintiffs filed an amended complaint in this action, including, in addition to its previous challenge to the state confidentiality rule, new claims under 42 U.S.C. § 1983 arising from (1) disciplinary counsel's handling of the Thayer Committee opinion and the October 2002 and July 2003 charges and (2) the Supreme Court's issuance of the show-cause order and rejection of the Thayer Committee opinion. Count III of the complaint alleges that Ms. Ferrara acted in violation of Plaintiffs' rights in not timely serving Mr. Stein with the Thayer Committee's opinion and by contacting the Supreme Court ex parte to request a special committee to review that opinion. It also alleges that she wrongfully supplied the Supreme Court with a copy of the Thayer Committee opinion. Count IV alleges various improprieties in the handling of the July 2003 charges, including that the ethical charges were baseless and filed against Mr. Stein in retaliation for Plaintiffs' federal lawsuit, that Ms. Scott-Mullins and Ms. Karni failed to investigate adequately the accusations of Mr. Stein's ethical violations, that they failed...

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