“A Slam-Dunk, Can’t-Lose, Bang-Up Lawsuit”

The New Mexico Supreme Court has publicly censured an attorney

This matter arose from Respondent’s conduct and participation in the secret recording of a meeting with his clients, Cade and Gary Shaffer, and with Matt Shaffer, an unrepresented person. Cade had retained Respondent to represent him in connection with an employment dispute, claiming that he had been wrongfully terminated from his employment at a family-run business (Business). Gary is Cade’s father and, at the time of the meeting, was an officer of the Business along with Gary’s two brothers. Matt is Cade’s cousin and was an employee and shareholder of the Business.

The meeting occurred at the Business on June 30, 2022. Respondent knew before the meeting that Cade and Gary wore concealed audio recording devices and would secretly record the encounter. Respondent did not introduce himself when he, Cade, and Gary entered the Business. Matt came out of his office, and Cade and Matt argued about whether Cade was still employed at the Business. Cade presented a document to Matt that Gary had executed that morning in his capacity as secretary of the Business. Cade claimed the document was a legally-binding employment contract. Matt responded that Cade had been terminated for drugs, alcohol, and personal problems. Cade asked whether he had been terminated for bipolar disorder, which Matt denied. Matt then added that Cade was terminated for linking his personal accounts to the accounts of the Business.

Cade later introduced Respondent as his attorney. Matt asked Respondent what his role was, and Respondent answered, “I’m here to resolve the conflicts to make sure Cade can do his job today because he’s been employed.” Matt responded, “[Cade] can’t do his job, he’s not mentally stable enough to do his job.” Respondent asked, “Tell me more about that.” Matt replied, “Well, we were told by Gary that [Cade] has bipolar; we didn’t know, but we knew that there was something not right.” After the encounter with Matt, Respondent went outside with Gary and Cade and said, “You have a slam-dunk, can’t-lose, bang-up lawsuit.”

Respondent later filed a Verified Complaint on behalf of Cade and Gary against Matt, the Business, and Gary’s brothers. See Shaffer v. Shaffer Tire, Inc., D-1113-CV2023-00075 (11th Jud. Dist. Feb. 16, 2023). The Verified Complaint alleges in part that Matt unlawfully discriminated against Cade on the grounds of a perceived disability, bipolar disorder, in violation of the New Mexico Human Rights Act. During the disciplinary investigation that followed, Respondent explained that the recording was justified as “evidentially significant to proving wrongdoing that could not have been effectively proven without [the] secret recording”; that “[w]ithout a recording, the jury would have nothing to rely on but testimony”; and that “a jury would be very unlikely to believe this conversation took place because it is so extreme.”

Violations

We focus initially on Respondent’s statement to Matt that “I’m here to resolve the conflicts to make sure Cade can do his job today because he’s been employed” and on Respondent’s subsequent attempts to elicit statements and admissions from Matt for the purpose of filing a lawsuit against him. The statement was made in response to Matt’s question about Respondent’s role and implied that Respondent was a third-party neutral rather than Cade’s attorney.

And

Respondent asserted at oral argument that he should not be “punished” for what his clients “lawfully” did and that as a matter of client confidentiality, he could not disclose that his clients were recording the meeting or that his “strategy” was to gather evidence.

Respondent misses the point. That New Mexico is a so-called one-party consent state—meaning that the consent of the person making a secret recording makes such a recording legal, see NMSA 1978, § 30-12-1(C) (1979)—does not make it ethical for a lawyer to engage or participate in a surreptitious recording when it would be deceptive to do so. Respondent’s knowing participation in the secret recording with the express purpose of gathering evidence for a lawsuit went well beyond mere advice to a client or advocacy. That participation was deceptive, in violation of Rule 16-804(C).

Sanction

We conclude that Respondent violated Rule 16-403, by communicating on behalf of a client with an unrepresented person and failing to make clear his role; and Rule 16804(C), by misrepresenting his objective while participating in the secret recording of an unrepresented person for the purpose of collecting evidence for his client.

As set forth in our order of July 11, 2024, Respondent shall (1) pay the costs of this disciplinary proceeding; and (2) complete four (4) hours of ethics continuing legal education on the topics of advocacy and professionalism and the advocate-witness rule, in addition to the annual MCLE requirement under Rule 24-102 NMRA, no later than February 1, 2025.

The recommendation is ADOPTED and Respondent Andrew Indahl is hereby publicly censured.

(Mike Frisch)