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NMLR Current Issue

Summer 2017, Vol. 47, No. 2

Front Matter

Alternative Sanctions in Litigation
Douglas Richmond

Courts may impose non-monetary sanctions on lawyers in litigation. These include what this article characterizes as alternative sanctions because they differ from traditional non-monetary sanctions that affect a lawyer’s ability to litigate a case, such as revoking the lawyer’s pro hac vice admission. Alternative sanctions may further be categorized as reflective sanctions where they are intended to cause the offending lawyers to reflect on their conduct with a goal of reform, or as shaming sanctions where they are intended to shame errant lawyers into improving their behavior and, in addition, to deter similar misconduct by other lawyers. Ordering a lawyer to attend a CLE course is the most common reflective sanction. This sanction requires no public acknowledgement of error by the lawyer. At the same time, judges who order lawyers to attend CLE programs do not believe that the lawyers will change their behaviors or improve their practices solely as a result of the content delivered during those seminars. Rather, self-analysis by the lawyer of the need to change her behavior or enhance her professional knowledge or skills is a principal goal of mandatory CLE attendance.

Shaming sanctions include a demonstration of penitence by the errant lawyers. The sanction famously imposed by an Iowa federal court in 2014 in Security National Bank of Sioux City v. Abbott Laboratories is now the leading example of a shaming sanction. In that case, the district court ordered a partner from a global law firm who allegedly engaged in serious deposition misconduct to make a video presentation on appropriate deposition objections and conduct, and distribute the video to other lawyers in her firm for viewing. Although the Eighth Circuit reversed the district court on due process grounds, it did not reject the use of shaming sanctions. In fact, is important for trial courts to have sanctioning options apart from monetary sanctions and non-monetary sanctions that go to the merits or substance of the case, or to the offending lawyer’s ability to practice.

The availability of alternative sanctions may be especially important where an errant lawyer’s practice is so thin that she cannot afford reasonable monetary sanctions or, at the other extreme, where the misbehaving lawyer’s wealth makes a monetary sanction proportionate to the misconduct at issue the equivalent of pocket change. This article uses the district court and Eighth Circuit decisions in the Security National Bank of Sioux City case as a framework for discussing and analyzing alternative sanctions in litigation.

Minor Protections: Best Practices for Representing Child Migrants
Laila L. Hlass

In recent years, the number of Central American children fleeing violence and seeking protection in the United States has surged, and these children’s cases have flooded the immigration courts. Children are treated virtually the same as adults in immigration court, and, because they are not provided government-appointed counsel, many must defend themselves from deportation pro se. In 2014, 80% of children—roughly 34,130—were unrepresented, and this lack of representation often has profound consequences: many of these children are eligible for protection from deportation, but, without access to attorneys, most will be deported anyway. 

Governments, nonprofits, and child advocates have taken action to address this justice gap, but these efforts have fallen short of a solution. In a recent case, J.E.F.M. v. Lynch, regarding the government’s failure to provide counsel to defend children matched against federal prosecutors in immigration court, the Ninth Circuit implored the Executive and Congress to address the crisis: “[t]o give meaning to ‘Equal Justice Under Law,’ . . . to ensure the fair and effective administration of our immigration system, and to protect the interests of children who must struggle through that system, the problem demands action now.” The Justice Department and some state and local governments and nonprofits have begun funding a limited number of temporary fellowship positions, usually for recent law graduates, to defend children from deportation. As these initiatives develop and expand, policy makers and philanthropic organizations will need to determine the most effective and efficient ways to provide counsel to so many migrant children.

This article contemplates the best practices for high volume delivery of legal services for children in immigration court. Drawing on original, empirical data regarding recent Special Immigrant Juvenile Status (SIJS) applications and extensive interviews with organizations and individuals nationwide filing the most SIJS applications, this article considers emerging trends in the representation of child migrants, identifies common characteristics of effective high volume practices representing children, and offers recommendations to expand access to qualified counsel and to create a child-centered approach to youth in removal proceedings.

Qualified Immunity and Excessive Force: A Greater or Lesser Role for Juries?
Nicholas T. Davis & Philip B. Davis

The two-pronged qualified immunity analysis, which is often the deciding point in any Fourth Amendment use of force case, continues to be a difficult issue dictated by abstract rules. First, courts need to further the law by analyzing the facts to determine whether a constitutional right existed and was violated. Second, in determining whether the right was been clearly established, the courts must find just the right middle ground between too broad an analysis – such as merely citing Graham or its several factors – and an analysis that is too narrow – such as requiring the exact fact pattern in a previous case –something the 10th Circuit has recently battled with in several of its recent cases, including two reversed and remanded by the Supreme Court for further consideration.

A middle ground, if adequately defined by the appellate courts to enable its consistent application by the lower courts – can exist. It allows for a pragmatic approach that leads courts to rely on established principles derived in previous cases – e.g., using force against unarmed, unresisting citizens violates their rights – without requiring the claimant to search for and discover prior cases with exact facts on point (such as the difference between using a gun or taser in the aforementioned example).

The 10th Circuit’s “sliding scale” approach mirrored the intent of the Graham factors, which appears now to have been rejected, at least in deadly force cases, by the Supreme Court. Putting a premium on furthering the law through judicial determinations of constitutional violations benefit law enforcement and citizens alike – and will serve to guide the lower courts by the continued development of clearly established law in the Fourth Amendment jurisprudence.

Indemnifying Public Employees Against Judgments for Punitive Damages: The New Mexico Tort Claims Act is Unconstitutional
Matthew Holt

The New Mexico Tort Claims Act (TCA) was adopted both to limit the liability of the government, in order to protect the public treasury, and to provide for reasonable compensation to people who have been injured by wrongful acts of the government and its employees. One facet of the TCA neither decreases the government’s liability nor provides for the payment of compensation to those injured by the government’s wrongful acts. In fact, in this area, the TCA increases the government’s liability. The TCA provides that the government is obligated both to defend and indemnify employees who are subject to claims for compensatory and punitive damages, provided only that the claims arise out of the employees’ conduct in the “scope of the duties” tasked to the employees.

Years ago, the New Mexico Court of Appeals held that conduct that is purely personal, indeed conduct that may be heinously felonious, conduct that does not in any way advance the interests of the government, can be within a public employee’s “scope of duties” if the authorized duties assigned to the employee put him or her in the position so that they could commit the crime. In such a case, the governmental entity has the statutory duty both to defend and to indemnify the employee.

While punitive damages are not available against a government employee for a common law tort, they are available for a constitutional tort – and the TCA requires that the governmental entity indemnify the employee for both compensatory and punitive damages. Because requiring the government to pay for punitive damages assessed against a public employee for purely personal conduct that falls with the “scope of duties” serves no public purpose, this Article argues that using taxpayer money to pay such an award violates the anti-donation clause of the New Mexico Constitution.

Student Notes & Comments

Between a Rock and an Ethical Duty: Attorney Obligations Under the Reporting Requirement of New Mexico’s Abuse and Neglect Act
Kirsten Dick, Class of 2018, University of New Mexico School of Law

To Discipline or Not to Discipline: A Framework for New Mexico to Analyze the Ethics of Medical Marijuana Representation
Jesse Montoya, Class of 2018, University of New Mexico School of Law

Lost in Translation: New Mexico’s Non-English Speaking Jurors and the Right to Translated Jury Instructions
Kyle Duffy, Class of 2018, University of New Mexico School of Law