Judicial Candidate Faces Ethics Complaint

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Judicial Candidate Faces EthicsComplaint

Attorney running against Appeals Court judge who

filed chargesCopyright 2010 Albuquerque Journal

By Mike Gallagher

Journal Investigative Reporter

Most appellate court election campaigns in New Mexico are understated and dont generatemuch buzz in the legal community or beyond, and it is rare for a judicial candidate to run whileunder the cloud ofethics charges and a malpractice lawsuit.But that is the case with attorney Dennis W. Montoya, a lawyer with offices in Albuquerque and

Rio Rancho who is seeking to unseat Appeals Court Judge Linda Vanzi in the Democraticprimary election.T he ele c t ion c ontest isnt their f irst confrontation.Vanzi, while still a state District Court judge in Albuquerque, filed a complaint against Montoya

with the board that investigates allegations of attorney misconduct.She accused him of failing to represent the interests of a young boy whose father was killed in a

one-car accident, questioned his fees and costs in the case, and accused him of lying to aguardian ad litem she appointed to protect the childs interests.This is a situation where a minor had no protection from his lawyers and lost virtually all the

money due him as a result of the unfortunate death of his father, Vanzi wrote in a Jan. 31, 2008,letter to the Disciplinary Board of the state Supreme Court.Mr. Montoya has shown a disregard for the legal system, including the courts, other attorneys,

and clients he supposedly represents, Vanzi wrote in her complaint, which is still beinginvestigated.Montoya campaign manager Santiago Juarez said, Because these are pending matters, Mr.

Montoyas position is he does not want to be seen as unduly influencing the court by commenting

in the media. Serious chargesThe charges against Montoya are serious. If the disciplinary board finds they have merit, it could

recommend disciplinary action to the Supreme Court, ranging from a reprimand or fine to beingdisbarred.Montoya is a somewhat con troversial figure who has been sanctioned by federa l judges in

Albuquer - que on several occasions and recently got involved in a shouting match with aMetropolitan Court judge. His practice includes criminal defense, civil rights, employment andpersonal injury.Vanzi practiced with an Albuquerque law firm before she was appointed to the District Court

bench in 2004, and she teaches as an adjunct instructor at the University of New Mexico lawschool. She was appointed to the Court of Appeals in the fall 2008.Vanzi became involved in the legal matters stemming from the death of Cody Utley when she

was asked to approve a settlement of a lawsuit Montoya had filed in state District Court in Las

Vegas, N.M.She didnt like what she saw, and she appointed Kathleen Oakey a guardian ad litem to inquire

further. Based on Oakeys findings, Vanzi wrote a 13-page letter accusing Montoya ofmisconduct.That is still pending, along with a malpractice lawsuit Oakey filed against Montoya on behalf of

Utleys son, Thomas.Vanzis ethics complaint which would normally have been secret became public when one

of Montoyas lawyers in the malpractice case attached it to a court pleading.The document has recently been making the rounds via e-mail.


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The tempo picked up after Montoya announced that he had qualified for public financing for hiscampaign about $85,000 and last weekend had enough support at the state DemocraticParty nominating convention to secure a spot on the ballot.Montoya has issued a statement calling for a clean campaign and another pointing out that he

is the only candidate who is using public financing.I am willing to win or lose this race on sunshine politics, because our courts are sacred and the

people of New Mexico deserve nothing less, he said in a statement.Attorney David Stout, who works on Vanzis campaign, said, As a sitting judge, the code of

judicial conduct prohibits her from commenting on pending cases.Vanzi and Montoya will face off in the Democratic primary June 1. There is no Republican in the

race, so the winner of the primary wins the seat on the Appeals Court.Fees questionedVanzis ethics complaint questions how Montoya and another attorney handled legal work and

fees in insurance settlements that followed the 2002 death of Cody Utley in a car crash outsideTucumcari. A tire blew out, and Utley was killed in a rollover.Utley was survived by Tresa Kosec, with whom he had a son, Thomas, who is now 1 2 . Kosec

also had a daugh - ter from a previous relationship.According to Vanzis complaint, Montoya represented that Tresa Kosec was Utleys surviving

spouse in dealings with life and workers compensation insurance companies and in a lawsuitagainst the tire manufacturer.

But Vanzi said Kosec and Utley were never married, and their relationship didnt meet thestandards for a common-law marriage.That is disputed by Montoyas attorneys, but, in a sworn statement, Kosec said she and Utley

were never married.Vanzi said in her disciplinary complaint that during the entire course of this litigation, as well as

in various other legal matters involving Mr. Utleys death ... Montoya ... did virtually nothing toprotect the interest of the minor child Thomas Utley, the only legal beneficiary to Mr. Utleysestate.Montoya argued that the money from the settlements benefited the child and went to put a roof

over the boys head.The life insurance company asked for additional information to show that Kosec was entitled to

the insurance money. In an affidavit prepared by a paralegal in Montoyas office, Kosec claimedto be Utleys common-law wife based on their living together in Utah before moving to

Farmington.Vanzi disagreed.At no time was Tresa Kosec married to Cody Utley and her declaration that she was Cody

Utleys wife and therefore an heir was patently false, Vanzi wrote in her complaint. Shespecifically said the couple had not met the test for common-law marriage in Utah.The state of the Utley-Kosec marriage is key to the malpractice claims, but not to all of the issues

raised by Vanzi in her complaint.Vanzi found that none of the money was set aside for Utleys son, Thomas, and that Kosec had

spent all the money she had received by the time it came to the courts attention.The complaint and court records show that Montoya, in some cases, received more than 50

percent of the settlements in fees and costs.Delays commonAccording to disciplinary board rules, investigations of such complaints shouldnt be delayed by

malpractice lawsuits. But, as a practical matter, investigations can be put on hold for a variety ofreasons.Virginia Ferrara, chief disciplinary counsel to the board, said she couldnt comment on the status

of the complaint or whether the pending malpractice lawsuit has delayed the investigation.The case also highlights an unusual aspect of New Mexicos merit selection system of judges.Before her appointment to the district or appellate court positions, Vanzi submitted her name to a

judicial nominating commission, which screens applicants, reviews credentials and recommendsseveral nominees to the governor to consider for appointment. Questions include disciplinarycomplaints.


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But legislators insisted that any appointed judge stand for election in one partisan contest afterthat appointment. Judges face only retention votes in subsequent elections.As a candidate in the partisan race, Montoya has not gone through the same vetting process as

Vanzi.The casesThe first claim involved Ut leys l i fe i nsu ra nce, which paid Kosec more than $73,000, from

which Montoya was paid $25,000 for costs. He did not charge any fees in that claim, but gotKosec appointed personal representative for Utleys estate, based on the representation that theyhad been husband and wife.Then came the claim for workers compensation benefits Montoya filed on behalf of Utleys

estate, in which the claim was made that both Thomas Utley and Kosecs daughter were fatheredby Utley.A workers compensation judge found that Kosec and the two children were the proper recipients

of the money from the settlement.A lump sum of $55,000 was paid, with Montoya receiving nearly $29,000 for fees and costs.

Kosec received $26,200.Vanzi found that none of the money was set aside for Utleys only legal heir, his son, Thomas.She said both the life insur ance and workers compensation claims involved a series of false

statements and misrepresentations by Mr. Montoya and his client.Several months after those settlements, Montoya filed a lawsuit against two companies,

including tire manufacturer Bridgestone/ Firestone Inc.There were two settlements: The salvage yard where the tire that blew out was purchased paid

$97,500, and the tire manufacturer agreed to pay $550,000. Vanzi questioned how much went toMontoyas firm and said there was not a proper accounting of costs charged.Again, in the salvage yard settlement, she found that no money was set aside for Utleys son.Montoya proposed splitt i n g t he Br id ge stone/ Firestone settlement, with $303,910 going to

his firm for fees and costs. Kosec would receive $146,000 and the son, $100,000.Vanzi was having none of it.She ruled that Kosec was not entitled to any of the settlement, because she received and spent

more than she should have received from the prior settlements. Vanzi ordered that $246,000 beput into a trust account for Thomas Utley and directed that the remaining $303,000 in fees andcosts be held in the court registry until a determination could be made on how the money shouldbe disbursed.

The boys guardian is seeking that money for the boy in a separate court case.Vanzi took issue with two particularly troublesome items on Mr. Montoyas cost log.The first was a billing for $14,977 from BBC Legal Services Inc., which the complaint said turned

out to be Montoyas paralegal. Montoya, in a letter, claimed to be unable to reach the formerparalegal who Oakley said was attending law school at the University of New Mexico.A second billing for more than $40,000 was for a private investigator, but there was no itemized

bill.

Documents

Judicial Candidate Faces Ethics Complaint