Tapia v. City of Albuquerque (10 F. Supp. 3d 1171, 2014)

United States District Court for the District of New Mexico 2014-03-31

Citations

Full opinion text

MEMORANDUM OPINION AND ORDER

JAMES O. BROWNING, District Judge.

THIS MATTER comes before the Court on the Plaintiffs’ Motion to Disqualify Attorney Paula Forney, filed July 17, 2013 (Doc. 46) (“Motion to Disqualify”). The Court held a hearing on November 1, 2013. The primary issue is whether the Court should disqualify Defendant and attorney Paula Forney from representing fellow Defendants City of Albuquerque, Richard Berry, Robert Perry, and Bruce Rizzieri (“the City Defendants”). The Court will deny the Motion to Disqualify, without prejudice to the Plaintiffs’ ability to renew the Motion to Disqualify if circumstances or new evidence present themselves down the road that justify reconsideration.

FACTUAL BACKGROUND

To provide background for the Motion to Disqualify, the Court takes the following facts from the Complaint for Violation of Statutory and Constitutional Rights, Breach of Contract, and Unfair and Prohibited Labor Practices, filed in state court January 15, 2013, filed in federal court March 4, 2013 (Doc. 1-1) (“Complaint”). The Complaint’s organization is unclear. Accordingly, the Court has reorganized the factual material in the Complaint to explain the facts clearly.

1.The Parties.

Plaintiff “Jessica Tapia was a full-time, classified City employee, employed as a City para-transit van driver when she was injured on-the-job while operating a wheelchair lift on a City van.” Complaint ¶ 1, at 1 (emphasis omitted). Plaintiff “Vanessa Aragon was employed as a City bus driver until the City terminated her employment in July, 2011.” Complaint ¶ 2, at 2 (emphasis omitted). Plaintiff “[t]he New Mexico Transportation Union (“NMT[U]”), [sic] is the labor union that has represented City bus and van drivers since 1965; [Plaintiff] Ernest Lucero is the current NMTU Chairman.” Complaint ¶ 3, at 2 (emphasis omitted). “Defendant City of Albuquerque is the largest city in New Mexico; Albuquerqué is in Bernalillo County, New Mexico.” Complaint ¶ 4, at 2 (emphasis omitted). Defendant “Richard Berry is the Mayor of Albuquerque; [Defendant] Robert J. Perry is the Chief Administrative Officer (CAO) of the City.” Complaint ¶ 5, at 2 (emphasis omitted). Defendant “[t]he City Personnel Board is supposed to be a neutral quasi-judicial hearing panel;” according to the Plaintiffs, “the current Personnel Board- operates unlawfully under the control and direction of’ Perry. Complaint ¶ 6, at 2. Non-party “[t]he City Labor-Management Relations Board is supposed to be a neutral quasi-judicial hearing panel;” the current Labor Board operates under the control and direction of the City of Albuquerque,” Berry, and Perry. Complaint ¶ 7, at 2. Defendant Bruce Rizzieri is “Director of the City’s Transit Department.” Complaint ¶ 8, at 2. Defendant “Paula Forney is a former assistant. City attorney.” Complaint ¶ 9, at 2.Defendant “Carmen Wagner-Mogle was Jessica Tapia’s physician.” Complaint ¶ 10, at 2.

2. Facts Related to the NMTU and City Government Actors.

The Plaintiffs assert that NMTU “petitioned with the support of a majority of employees in the bargaining unit for recognition as the union for the bus and ván drivers in March, 2011,” but “the City would not formally recognize its majority status until October 5; 2011, when it was forced to recognized NMTU after NMTU prevailed in the City-run election against AFSCME, Local 624.” Complaint ¶ 10, at 3.'Although the City Labor Board conducted that election, neither the City nor its labor board supported “the NMTU in either its grievance or bargaining representation.” Complaint ¶ 11, at 3. “On October 5, 2011, Mayor Richard Berry de-certified AFSCME as bargaining representative and certified NMTU.” Complaint ¶ 12, at 3. “However, the City Defendants subsequently refused to bargain with NMTU[,] refused to deduct union dues from paychecks, and refused to allow union leaders the same accommodations and privileges concerning union business, negotiations, and grievances that the AFSCME union was afforded.” Complaint ¶ 13, at 3.

As a direct result of the City’s failure to acknowledge and support NMTU as the collective bargaining and.grievance representative, NMTU and its officials were untrained, inexperienced, and without any office, staff, or operating funds. At the same time the union officers were attempting to represent drivers, the Transit Department unreasonably required them to fully perform their driving schedules.

Complaint ¶ 14, at 3-4. Tapia’s and Aragon’s grievances “were the first two grievances ever handled by NMTU’s new Chairman.” Complaint ¶ 15, at 4.

According to the Plaintiffs, the City-Charter requires the mayor to administer and protect “the merit system,” and to appoint “an officer to administer the merit system.” Complaint ¶ 16, at 4. According to the Plaintiffs, “[t]he City has not appointed or hired” such an officer. Complaint ¶ 17, at 4. “[Moreover, the Merit System Ordinance states that the Mayor” shall designate the CAO — -“the City’s highest appointed official and the person authorized to ‘reprimand, suspend, demote or discharge employees’ ” — to administer that system. Complaint ¶ 18, at 4 (quoting MSO § 3 — 1—2(c)(3)). “The City Personnel Board is neither fair nor neutral,” but instead, “whenever possible[, it] upholds and advances management policies and interests over the rights of City employees. In this case the City dictated the actions of the Personnel Board.” Complaint ¶ 19, at 4.

[U]nder the administration of Mayor Richard Berry the Current Personnel Board and its Personnel Hearing Officers and the Labor Board all act under the direction of Mayor Berry and Robert Perry, without oversight from the City Council, collusively, and in violation of the City Charter and the rights of Plaintiffs and other City employees.

Complaint ¶ 20, at 5.

3. Conflict Between Tapia and the City of Albuquerque.

Tapia’s wrist was injured on the job. See Complaint ¶ 21, at 5. The Complaint does not relay the circumstances of that injury. “Since Ms. Tapia had been injured at work the City claimed it had the right to assign her to any position, without regard for whether the position had any relation to her work as a van driver.” Complaint ¶22, at 5. “Following her on-the-job wrist injury the Transit Department assigned Ms. Tapia to ‘monitor’ the public restrooms at the City’s Alvarado Transit Center. While ‘monitoring’ at the ATC, in November, 2010, Ms. Tapia was attacked by a homeless man who injured her shoulder.” Complaint ¶ 21, at 5. “By early December, 2010, Transit officials had placed Ms. Tapia in the poorly heated Guard Shack at the entrance to the Daytona Transit facility and left her to stay there all day with nothing to do.” Complaint ¶ 23, at 5.

On December 27, 2010, counsel wrote to Transit Director Bruce Rizzieri and the Human Resources manager, to inquire about the City’s justification for putting Ms. Tapia in the cold Guard Shack with nothing to do. They did not respond. On January 21, 2011, counsel wrote again to further question and object to the City’s mistreatment of Ms. Tapia and to give notice of her tort claims.

Complaint ¶ 24, at 5.

On February 15, 2011, the Transit Department scheduled a Pre-Determination Hearing (PDH) for February 24, 2011, charging that Ms. Tapia ‘submitted a P-30 Request for Leave form with 68.270 hours of Absent Without Leave.’ Mr. Bird cancelled that ‘hearing’ after Ms. Tapia and her attorney appeared because, he said, he had forgotten to refer the case to the mediation office.

Complaint ¶25, at 4. The hearing was rescheduled for March 10, 2010. See Complaint ¶26, at 6. When Tapia’s attorney asked for documents to support the charges, no documents were provided. See Complaint ¶ 26, at 6. The Transit Department asserted that Tapia “submitted a P30 Request for Leave form with 68.270 hours of Absent Without Leave. This type of leave is unauthorized leave and considered absent from work without authorization. Your AW absences totaling 68.270 hours have placed you in violation of City Rules and Regulations.” Complaint ¶26, at 6 (source of quotation unidentified). “Ms. Tapia had submitted the form on the instructions of Transit’s Personnel Manager. Nonetheless, on March 18, 2011, [t]he Transit Department gave Tapia a 3-day suspension.” Complaint ¶ 27, at 6.

On April 18, 2011, the Transit Department gave [Tapia] another Notice, scheduling a pre-determination hearing for May 9, 2011. Included in the allegations was the contention that on “April 11, 2011 Clarence Decker ‘witnessed you in the Security Building at approx. 12:30 p.m. At 3:00 p,m., ‘(y)ou were not at your assigned work area.’ ”

Complaint ¶27, at 6 (source of quotation unidentified).

On April 21, 2011, another Notice scheduled a hearing for June 3, 2011. Among the allegations were that “On April 18-20, 2011 you did not show up for work or call in to be absent from work ... [sic] Your AW absences totaling 24 hours have placed you in violation of City Rules and Regs.’ This was apparently also based on a complaint by Clarence Decker about Jessica Tapia’s ‘absents and failure to call in.’ ”

Complaint ¶ 28, at 6-7 (source of quotation unidentified). On May 18, 2011, in response to the hearing held on May 9, 2011, the Transit Department suspended Tapia without pay for eight work days, or sixty-four work hours, to be served from May 20, 2011 to May 31, 2011. See-Complaint II29, at 7. On May 31, 2011, Maintenance Manager Dennis Stump gave Ms. Tapia notice of another Pre-determination Hearing scheduled for Thursday June 9, 2011. According to the City’s untrue account, Ms. Tapia had requested accommodation in October, 2010 “citing that you are unable to drive at night due to your medical condition.” Complaint ¶ 30, at 31. ‘Without her knowledge the City had apparently paid a private investigator to follow her outside of work hours, with the result that she was accused of ‘driving at night’ and ‘purchasing liquor at a Walgreens establishment then attending what appeared to be a party.’ ” Complaint ¶ 31, at 7 (source of quotation unidentified).

Also, according to the Plaintiffs’ account, the City’s

FMLA Coordinator contacted your • physician to inquire if your medical condition had changed ... physician stated you had not been under her care since the first part of April when she certified your FMLA for intermittent leave and that she did not have a medical explanation for.why you have not been to work.

(Emphasis added.)

Complaint ¶ 32, at 7 (omission in Complaint).

“On June 8, 2011, Jessica Tapia received the ‘results of predetermination hearing’ that ‘on April 18-20, 2011, you did not show up for work or call in to be. absent from work.’ The Transit department imposed a 15-workday, 120 hour suspension without pay.” Complaint ¶ 33, at 7. “Without further notice to Ms. Tapia or NMTU, the City terminated Ms. Tapia’s employment.” Complaint ¶ 34, at 8.

“On August 2, 2011,.the City’s attorney, Paula Forney,- drafted and issued a subpoena for Ms. Tapia’s medical records. Ms. Forney did that without informing Ms. Tapia or her attorney. Ms. Forney did not seek or secure a release.” Complaint ¶40, at 9. The subpoena, which Forney evidently issued to Dr. Wagner-Mogle, stated “that it was: ‘[f]or the medical records of patient, Jessica Tapia ... requires you to appear for a deposition on August 10, 2011 at 10:00 a.m. ... and bring with you: Any and all documents in your possession regarding Jessica Tapia ... beginning 01/01/2010 to the present.’” Complaint ¶ 41, at 9. “In a letter accompanying the Subpoena and deposition notice, Ms. Forney stated that: ‘You can avoid the deposition by copying and forwarding to this office all records requested prior to the deposition. If we do not receive the records prior to the date of deposition, we will expect your appearance.’ ” Complaint ¶ 42, at 9 (source of quotation not provided). On August 4, 2011, Dr. WagnerMogle sent Tapia’s records to Forney by facsimile transmission, without requesting or securing a release or other authorization, and without notifying Tapia. See Complaint ¶ 43, at 9. “On August 8, 2011, Ms. Forney wrote to counsel that she had received ‘A phone call from Ms. Tapia’s doctor acknowledging that she should not have sent Ms. Tapia’s records without a release.’ ” Complaint ¶ 44, at 10. “Ms. Tapia objected to the unauthorized release of her medical records, but on September 9, 2011, Personnel Hearing Officer Patrick Bingham issued the subpoena for medical records requested by Ms. Forney and granted the City attorney permission to serve discovery on Ms. Tapia.” Complaint ¶ 45, at 10.

After the hearing officer allowed “the City unlimited ‘discovery’ (including Ms. Tapia’s medical records), Ms. Forney propounded burdensome and offensive ‘discovery requests’ designed to embarrass Ms. Tapia and place pressure on the inexperienced NMTU officers who were attempting to represent her, rather than produce any actually useful information.” Complaint ¶ 46, at 10. “The Hearing Officer signed an order dismissing Ms. Tapia’s case, but the Personnel Board objected that Mr. Bingham’s order did not give any reasons or include any ‘findings.’ The Personnel Board remanded the case to the Personnel Hearing Officer to make findings and issue a ‘correct’ order.” Complaint ¶ 47, at 10. “Instead of the Hearing Officer making findings and issuing a correct corder [sic], Paula Forney wrote a set of ‘findings and conclusions’ dismissing Ms. Tapia’s case.” Complaint ¶ 48, at 10. “The Hearing Officer merely changed the title of the document prepared by Ms. Forney and signed the ‘Order’ drafted by Ms. Forney, dismissing Ms. Tapia’s Personnel Board case without a hearing.’” Complaint ¶49, at 10. “At its December 14, 2011, meeting the Personnel Board gave its rubber-stamp ‘approval’ of Ms. Forney’s findings and conclusions.” Complaint ¶ 50, at 11.

Counsel for Ms. Tapia subsequently filed a motion for sanctions against the City, Ms. Forney and the Personnel Hearing Officer for their violations of Ms. Tapia’s right to privacy. The Board members denounced Tapia’s counsel for bringing the charges before the Personnel Board and the Board unanimously refused to consider the issue.

Complaint ¶ 51, at 11.

4. Conñict Between Aragon and the City of Albuquerque.

“The City has held an extraordinary number of pre-disciplinary hearings in this case, spanning the time between the first such action on December 26, 2006, and the last on June 1, 2011.” Complaint ¶ 35, at 8 (footnote omitted). The Complaint lists, without further explanation, a number of “Results of Pre-Disciplinary He[ar]ings” and states that “in addition the City has held two investigations ... and issued at least seven letters of investigation.” Complaint ¶ 35 n. 1, at 8.

The City has charged Ms. Aragon with very many infractions. On March 16, 2008, for example, the City charged Ms. Aragon with violating section 300301.1, 301.9, 302, 301.13, 401.11 (DI, E), 402.5(C), 902, 902.1 (C, D, G, J. [sic] L, Ml, 2, 3) and Sec. 12.34 (Major Policy Violations/Gross Misconduct, Transit SOP). Plaintiffs do not know what those charges are for or what happened to those charges.

Complaint ¶-36, at 8. “On May 17, 2011, Deputy Operations Manager Annette Paez ordered Ms. Aragon to return to work, but Ms. Aragon was unable to comply because of her medical condition.” Complaint ¶ 37, at 8. “On June 1, 2011, Ms.' Paez charged Ms. Aragon with violations of Section 300, 302, 402.5(c) and 902.1 (E. [sic] J, and M-3).” Complaint ¶ 38, at 8. “Although the record indicates an increasing concern over attendance and use of sick leave, the City has never explained the reasons for its disciplinary actions against Ms. Aragon.” Complaint ¶ 39, at 9.

“On October 17, 2011, Mr. Lucero wrote to Ms. Wardlaw to request Vanessa Aragon’s case and all other NMTU cases be stayed until the Union achieved the ability to represent the bargaining unit employees.” Complaint ¶ 52, at 11. “The City refused to agree to a continuance, claiming that Mr. Lucero had waited too long to request it.” Complaint ¶ 53, at 11. • “Without any attempt to contact Ms. Aragon, the City’s Personnel Hearing Officer wrongly concluded that: ‘... it is more likely than not that Employee was aware of the hearing and did not appear so as to support the request for a continuance.’ ” Complaint ¶ 54, at 11 (omission in Complaint) (source of quotation not provided).

According to the City’s Personnel Hearing Officer, “Employee failed to establish good and sufficient cause for her untimely request for a continuance.”

The Hearing Officer therefore recommends that the Personnel Board deny Employee’s request for a continuance. The Employee having failed to appear or to otherwise prosecute her appeal, it is further recommended that the Personnel Board dismiss the appeal of Employee’s termination.

Complaint ¶ 55, at 12 (source of block quotation not provided).

Not knowing about the status of NMTU and its representational abilities and without inquiring or even asking Mr. Lucero, the Hearing Officer erroneously found that the request for a continuance was made because of “problems associated with the fact that NMTU was moving into new facilities.” In fact, there were no “new facilities” and Ms. Aragon was unaware of what was happening, but the Hearing Officer, acting in collusion with the City, recommended termination without a hearing anyway.”

Complaint ¶ 56, at 12.

PROCEDURAL BACKGROUND

The Court will discuss the procedural background in four parts. First, the Court will discuss the Plaintiffs’ Complaint and the Defendants’ removal to federal court. Second, the Court explains facts that, for purposes of this Memorandum Opinion and Order, the Court will treat as undisputed from the Motion to Disqualify and the Response in Opposition to Motion to Disqualify Attorney Paula Forney, filed July 23, 2013 (Doc. 50) (“Response to Motion to Disqualify”). Third, the Court will discuss the disputed factual allegations from the Motion to Disqualify. Fourth, the Court will discuss the parties’. legal arguments in the Memorandum in Support of Motion to Disqualify, filed July 22, 2013 (Doc. 49) (“Motion to Disqualify Memo.”), and the Response in Opposition to Memorandum in Support of Motion to Disqualify Attorney Paula Forney, filed July 28, 2013 (Doc. 51) (“Response to Motion to Disqualify Memo.”).

1. The Plaintiffs File their Complaint; the Defendants Remove to Federal Court.

The Plaintiffs filed their Complaint in state court, stating that they “bring their claims under 42 U.S.C.Sec.1983 [sic], and the laws and Constitutions of the United States and the State of New Mexico.” Complaint ¶ 9, at 2-3. The Plaintiffs allege six causes of action. See Complaint ¶¶ 57-84, at 12-16. Under “Count 1 Due Process and Equal Protection,” the Plaintiffs assert that Tapia and Aragon, “[a]s classified, full-time, City employees ... had legitimate expectations of continued employment absent just cause for disciplinary action. They had the right to a full and fair hearing to challenge their termination.” Complaint ¶ 57, at 12. “Similarly,” the Plaintiffs allege, “NMTU and its leadership had a due process right and an obligation to represent employees in the bargaining unit at post-termination grievance hearings that are fundamentally fair and proeedurally correct.” Complaint ¶ 58, at 12. According to the Plaintiffs, the “Defendants denied the employees’ rights and hearings and dismissed their cases on pretextual grounds,” and, thereby, “the City Defendants have violated Plaintiffs’ rights to, due process and equal protection of the laws.” Complaint ¶¶ 59-60, at 13.

Under “Count 2 Breach of Employment Contracts,” the Plaintiffs allege that, “[a]s tenured public employees, Plaintiffs Tapia and Aragon were covered by a contract of employment that consisted of the Merit System Ordinance, the Personnel Rules and Regulations and applicable collective bargaining agreements.” Complaint ¶ 62, at 13. The Plaintiffs contend that they “were contractually entitled to notice and an opportunity to be heard, and to be disciplined only for just cause.” Complaint ¶ 62, at 13. The Plaintiffs submit that, thereby, the Defendants “have violated their contractual obligations and are liable for damages to be determined at trial.” Complaint ¶ 64, at 13.

Under “Count 3 Violation of Right to Privacy,” the Plaintiffs contend that “Forney used a misleading letter and an illegitimate subpoena that she issued herself to secure Jessica Tapia’s medical records from Dr. Carmen Wagner-Mogle,” and that Dr. “Wagner-Mogle sent Ms. Tapia’s medical records to Ms. Forney without any knowledge or authorization by Ms. Tapia.” Complaint ¶¶ 66-67, at 13-14. The Plaintiffs assert that “Dr. Wagner-Mogle communicated with Ms. Forney and other City representatives about Jessica Tapia and her medical condition and records on at least several occasions,” but “never contacted or attempted to contact Ms. Tapia or her attorney.” Complaint ¶ 68, at 14. The Plaintiffs state that “[t]he acts of Defendants, specifically Paula Forney, Dr. Carmen Wagner-Mogle and the Transit Department deliberately and willfully violated Jessica Tapia’s right to privacy in her medical records.” Complaint ¶ 69, at 14. The Plaintiffs contend that the “Defendants also hired a private investigator and followed Ms. Tapia, seeking and securing information about her personal life and activities entirely unconnected with her work.” Complaint ¶ 70, at 14. The Plaintiffs assert that the “Defendants are liable for their violations of Ms. Tapia’s right to privacy.” Complaint ¶ 71, at 14.

Under “Count 4 Negligence,” the Plaintiffs assert that, “[a]s described herein, Defendants have treated Jessica Tapia and Vanessa Aragon negligently and with deliberate indifference with respect to their employment.” Complaint ¶ 73, at 14. “In addition,” the Plaintiffs state, “Ms. Tapia sustained two injuries, the first resulting from operation of a wheelchair lift while on duty; the second of which was a result of her assignment to monitor the restroom facilities at the Alvarado Transit Center, a building managed and maintained by the City Transit Department.” Complaint ¶ 74, at 15. The Plaintiffs assert that “Tapia has given notice of her tort claim to the City of Albuquerque.” Complaint ¶ 75, at 15. The Plaintiffs maintain that “[t]he city and its Transit Department, as well as its Director, are liable for the damages proximately caused by their negligence in an amount to be determined at trial.” Complaint ¶ 76, at 15.

Under “Count 5 Conspiracy to Deny Constitutional Rights,” the Plaintiffs assert that “[t]he City Defendants, aware of Plaintiffs’ rights to due process and equal protection, acted deliberately to deny the right to a hearing, one of the most fundamental rights of public employees subjected to wrongful disciplinary actions.” Complaint ¶ 78, at 15. “In particular,” according to the Plaintiffs, “Paula Forney, the Personnel Hearing Officers, the Personnel Board, and Bruce Rizzieri and other City officials met, discussed, and arranged for the denial of Plaintiffs’ due process and equal protection rights.” Complaint 79, at 15.

Under “Count 6 Unfair Labor Practices,” the Plaintiffs state that, “[ljong after the submission of NMTU’s majority petition for representation of the Transit drivers’ bargaining unit in March, 2011, and the expiration of the Collective Bargaining Agreement on June 30, 2011, the City and Transit Department continued recognizing AFSCME as the exclusive bargaining and grievance representative.” Complaint ¶ 81, at 15-16. According to the Plaintiffs,

[t]he City and its Labor Board have ignored and opposed the legitimate representational interests of NMTU, discarded NMTU’s prohibited practice complaints without hearings, insisted on an election when none was needed, and then did nothing to support or enable NMTU to represent employees, after it prevailed in the election.

Complaint ¶ 82, at 16. The Plaintiffs maintain that “[t]he City’s misconduct and the Hearing Officers’ and Personnel Board’s lack .of concern over — and engagement in — collusive tactics in this case, including biased .hearing officers eager to dismiss rather .than hear employee cases, and unethical and illegal conduct, clearly demonstratéd the City’s policy and practice with respect to the rights of its employees and the obligations of City management towards those employees.” Complaint ¶ 83, at 16. The Plaintiffs assert that they “are entitled to compensatory, declaratory, and injunctive relief for the City’s failure to comply with its laws, failure to recognize and hear employee grievances, and collusive and conspiratorial conduct with respect to these and other employees’ rights and grievances.” Complaint ¶ 84, at 16.

The Plaintiffs ask for the following forms of relief:

A. Declaratory, injunctive and compensatory relief for denial of fair hearings and the rights to due process and equal protection of law;

B. Damages for breaches of contract;

C. Declaratory, injunctive, and compensatory relief and exemplary and punitive damages for violation of Jessica Tapia’s right to privacy.

D. Damages for negligence with respect to Ms. Tapia’s injuries;

E. Declaratory, injunctive, and compensatory relief for unfair labor practices and collusive misconduct between and among City officials and attorneys, the Personnel Board and its Personnel Hearing Officers and the Labor Board.

F. Declaratory and injunctive relief requiring the City to hire or appoint a person to oversee, administer, and protect the Merit System and ensure a fair, neutral and effective personnel hearing process for City employees.

G. Costs and attorneys’ fees; and

H. Such other and further relief as the Court deems just and proper.

Complaint ¶¶ A-H, at 16-17.

On March 4, 2013, the Defendants filed their Notice of Removal. See Doc. 1.

On March 8, 2013, the City Defendants filed their Answer to Complaint for Violation of Statutory and Constitutional Rights, Breach of Contract, and Unfair and Prohibited Labor Practices, Affirmative Defenses and Counterclaim. See Doc. 13 (“City Defendants’ Answer”). The City Defendants raise two counterclaims: (i) malicious abuse of process, contending, in essence, that the Plaintiffs’ claims are meritless and that they are abusing the legal process, see City Defendants’ Answer ¶¶ 48-56, at 16-17; and (ii) prima facie tort, contending that the Plaintiffs have intentionally brought a meritless claim to harm the City of Albuquerque, see City Defendants’ Answer ¶¶ 57-64, at 18-19.

On March 2013, Forney filed her Answer to Complaint for Violation of Statutory and Constitutional Rights, Breach of Contract, and Unfair and Prohibited Labor Practices by Defendant Paula Forney and Counterclaim. See Doc. 15 (“Forney’s Answer”). Forney raises counterclaims for malicious abuse of process and prima facie tort, largely for the same reasons that the City Defendants give. See Forney’s Answer ¶¶ 1-13, at 19-21.

2. The Motion to Disqualify: The Undisputed Facts.

The Plaintiffs move the Court to disqualify Ms. Forney. See Motion to Disqualify at 1. Ms. “Forney is a former Assistant City Attorney who now represents the City and City officials and employees on a contractual basis.” Motion to Disqualify ¶ 11.A, at 4 (setting forth this fact); Response to Motion to Disqualify ¶ 11.A, at 2 (not disputing this fact). Ms. Forney represents the City of Albuquerque, Berry, Perry, and Rizzieri “ ‘officially’ and the individual defendants both individually and in their official capacities and as both defendants and Counter-Claimants.” Motion to Disqualify ¶ 1, at 1 (source of quotation marks unidentified) (setting forth this fact); Response to Motion to Disqualify ¶ 1.1, at 1 (not disputing this fact). Ms. Forney is both a defendant and a counter-claimant “against Ms. Tapia, Ms. Aragon, and the New Mexico Transportation Union.” Motion to Disqualify ¶ 1, at 1. See Response to Motion to Disqualify ¶ 1.1, at 1 (not disputing this fact). Ms. Forney and her firm “ ‘represent’ these and other Defendants in two other lawsuits in which Plaintiffs’ counsel represents the employees that were recently removed to this federal Court by Ms. Forney.” Motion to Disqualify ¶ 2, at 1-2 (citing Salazar v. City of Albuquerque, No. CIV 13-0162 JCH/RHS (“Salazar //”)(D.N.M. Jan. 31, 2014), and Roybal, et al., v. City of Albuquerque, No. CIV 13-0025 KG/KBM (D.N.M. Nov. 11, 2013) (“Roybal ”) (source of quotation marks unidentified) (setting forth this fact)). See Response to Motion to Disqualify ¶ 2, at 1-2 (not disputing this fact).

In the fourth and oldest case, Salazar v. City .of Albuquerque [et al, No. CIV] 10-00645 JB/ACT [ (“Salazar I ”) ], Paula Forney entered her appearance two years ago for only one defendant, former transit director Greg Payne, but she is now acting in that case, as in the more recent cases, as the attorney for the City and all the other defendants.

Motion to Disqualify ¶ 3, at 2. See Response to Motion to Disqualify ¶ 3, at 2 (not disputing this fact). “With the exception of the City[’]s Labor and Personnel Boards and their hearing officers who have different counsel, and notwithstanding the fact that various other City attorneys ... have entered appearances, Ms. Forney represents everyone in all four (this case, two Salazar cases, and the Roybal) cases.” Motion to Disqualify ¶ 3 n. 1, at 2 (setting forth this fact).

“In one or more of the four City of Albuquerque cases presently pending in the federal court, Ms. Forney represents: the City of Albuquerque,” Berry, Rizzieri, Payne, former Mayor Martin Chavez, Deputy Human Resources Director Mary Scott, and Human Resources Director Vince Yermal, and she also “represents herself or is represented by counsel in each of the three recently removed cases.” Motion to Disqualify ¶ 4, at 2 (setting forth this fact). See Response to Motion to Disqualify ¶ 4, at 2 (not disputing this fact). Further, “in each of the three cases Ms. Forney has filed counterclaims against the plaintiffs.”' Motion to Disqualify ¶ 5, at 2. See Response to Motion to Disqualify ¶ 5, at 2. These counterclaims “are filed on behalf of the City of Albuquerque,” Berry, Perry, Rizzieri, and Yernjal; “she has also filed counterclaims on her own in two of the cases.” Motion to Disqualify ¶ 6, at 2. See Response to Motion to Disqualify ¶ 6, at 2 (not disputing this fact).

“On August 4, 2011, Dr. Wagner-Mogle sent Jessica Tapia’s medical records to Paula Forney by facsimile.” Motion to Disqualify ¶ ll.F, at 5 (setting forth this fact). See Response to Motion to Disqualify ¶ ll.F, at 3 (not controverting this fact). Forney returned Tapia’s medical records to Dr. Wagner-Mogle unread. See Response to Motion to Disqualify ¶ ll.F, at 3 (setting forth this fact as undisputed). “Ms. Tapia objected to the unauthorized release of her medical records, but on September 9, 2011, Personnel Hearing Officer Patrick Bingham issued the subpoena for medical records requested by Ms. Forney and granted the City attorney permission to serve discovery on Ms. Tapia.” Motion to Disqualify ¶ ll.H, at 5 (setting forth this fact). See Response to Motion to Disqualify ¶ ll.H, at 3 (not controverting this fact). “Tapia did not respond to the discovery served on her.” Response to Motion to Disqualify ¶ ll.H, at 3 (setting forth this fact as undisputed). “After Plaintiffs filed a Complaint on January 15, 2013, Ms. Forney filed a Petition to Remove the case to the federal court on March 4, 2013.” Motion to Disqualify ¶ 11.1, at 5 (citations omitted) (setting forth this fact). See Response to Motion to Disqualify ¶ 11.1, at 4 (not disputing this fact). “On March 11, 2013, Ms. Forney, through counsel, filed an Answer to the Complaint and a Counterclaim against Vanessa Aragon, Ernest Lucero, NMTU, and Jessica Tapia.” Motion to Disqualify ¶ J, at 5 (setting forth this fact). See Response to Motion to Disqualify (not controverting this fact).

3. The Motion to Disqualify: Additional Allegations.

In addition to those facts that the Court has deemed undisputed, the parties each raised additional allegations. These allegations are not, however, undisputed: either an opposing party disputed them or their proponent did not support them with evidence. The Court includes them to explain the dispute. For clarity, the Court will present the allegations in the text, and the responses to those allegations, if any, in the footnotes.

The Plaintiffs assert:

7. It appears unlikely that any of the parties, including the City of Albuquerque, has actually given informed consent for their joint and conflicted representation by Ms. Forney. Nor did they choose Ms. Forney to represent them; rather, she was “assigned.”

8. Just as most (or all) of the defendants in these cases have not chosen their attorney or given consent to their joint representation, they also have not participated in the formulation of the pleadings.

Motion to Disqualify ¶¶ 7-8, at 3 (emphasis in original) (footnote omitted) (quoting Response. to Motion for Default Judgment ¶ 6, at 2-, filed in Salazar I September 24, 2012 (Doc. 62)). . .

The Plaintiffs assert that hts. Forney’s representation and “filing of retaliatory counterclaims without informed consent of all the affected parties violates Rules 16-107, 16-307, and other New Mexico Rules of Professional Conduct.” Motion to Disqualify ¶ 9, at 3. They allege that “[collective representation of clients, under the facts and circumstances of this case, violates both State and national ethical requirements, including the American Bar Association’s Model Rule of Professional Conduct 1.7, causes needless expense, compromises Plaintiffs’ ability to litigate their claims, and constitutes abuse of the judicial process.” Motion to Disqualify ¶ 10, at 3.

The Plaintiffs allege that:

B. Ms. Forney represented the City of Albuquerque before the City Personnel Board and its Hearing Officers in connection with the termination of Ms. Tapia’s and Ms. Aragon’s employment and in denying the union the opportunity and ability to represent the employees. []

C. On August 2, 2011, without informing Ms. Tapia’s attorney, Ms. Forney scheduled a deposition and drafted and issued a subpoena for Ms. Tapia’s medical records. Ms. Forney did not seek or secure a release. []

D. The Subpoena drafted by Ms. Forney informed Ms. Tapia’s personal physician that it was:

for the medical records of patient, Jessica Tapia ... requires you to appear for a deposition on August 10, 2011 at 10:00 a.m.... and bring with you: Any and all documents in your possession regarding Jessica Tapia, DOB: 7/13/1977; SS#: XXX-XXXXXX, beginning 01/01/2010 to the present.” [sic] []

E. In a letter accompanying the Subpoena and deposition notice, Ms. Forney stated that:

You can avoid the deposition by copying and forwarding to this office all records requested prior to the deposition. If we do not receive the records prior to the date of deposition, we will expect your appearance. []

G. Dr. Wagner-Mogle did not secure, or request, any release or other authorization to provide Jessica Tapia’s medical records to Ms. Forney. She did not notify Ms. Tapia that she was providing Ms. Tapia’s medical records to the City’s attorney. []

J. On March 11, 2013, Ms. Forney, through counsel, filed an Answer to the Complaint and a Counterclaim against Vanessa Aragon, Ernest Lucero, NMTU, and Jessica Tapia. (Doc. 15).[ 3

K. Defendants’ answers to the allegations in the Complaint fail to distinguish between the City and the individual defendants; all responses are the same for the City and the individuals, and all responses by the City Defendants are the same as those submitted by Ms. Forney on her own behalf. The answers are the same for every allegation in the Complaint for the City, May- or Berry, Mr. Perry, Mr. Yermal. Ms. Forney and the City Personnel Board.

L. Defendants all contend that the same allegations in Plaintiffs’ Complaint “speak for themselves” or “call for a legal conclusion” and therefore they erroneously contend they do not need to respond to those allegations.!]

M. With her assertion of a personal counterclaim, Ms. Forney placés her own interests further into play and her status as a Defendant and her counterclaim against Plaintiffs disqualifies her from representation of the City and its Defendant officials against Plaintiffs’ claims at the same time in the same case. []

N. By their assertion of a counterclaim against Plaintiffs, the individual City officials arguably waived any immunities they may have otherwise asserted! 1

Motion to Disqualify ¶¶ B-N, at 4-6 (sources of block quotes unattributed). In the Plaintiffs’ view, these

allegations and facts demonstrate that Ms. Forney and the City of Albuquerque are acting in violation of Rule 16-107 N.M. Rules of Professional Conduct and Rule 1.7 of the American Bar Association[’]s rules Model Rules of Professional Conduct as well as other related rules and ethical considerations under both sets of ethical rules.

Motion to Disqualify ¶ 12, at 6. They also allege that, in a pleading that Forney filed in a different ease, she “falsely states that Plaintiffs[’] counsel filed a complaint with the New Mexico Bar Association, raising the same issues in his motion and in fact, submitting the motion in support of the bar complaint.” Motion to Disqualify ¶ 13, at 6. “In fact,” the Plaintiffs allege,

counsel filed no such complaint. Ms. Forney fails to inform the Court that it was she and Ms. Wardlaw[, another City of Albuquerque attorney], claiming to represent the interest of counsel[’]s clients, who are maliciously prosecuting disciplinary complaints against Plaintiffs[’] counsel for his litigation of this and other lawsuits and administrative proceedings.

Motion to Disqualify ¶ 14, at 7 (emphasis in original). Accordingly, the Plaintiffs ask the Court to examine Ms. Forney’s representation and decide if she is acting without her clients’ informed consent, “and, if so, whether those and related ethical infractions and violations warrant disqualification of Paula Forney as an attorney representing clients in this case.” Motion to Disqualify ¶ 14, at 7. The Defendants assert the following:

1. Ms. Forney will not be a witness in any of the claims by or against plaintiff.

2. At all relevant times, Ms. Forney was acting as an attorney, representing the City clients.

3. At all relevant times, Ms. Forney’s communication was a part of attorney-client communications which are protected.

4. There is no conflict between defendants and the City, or among defendants. See [citing Letter from David Tourek to William D. Slease, executed July 1, 2013, filed July 23, 2013 (Doc. 51-1)].

5. At all relevant times, all City defendants were acting within the course and scope of their City employment.

6. City Defendants did not object to Ms. Forney representing them. See [Letter from David Tourek to William D. Slease, executed July 1, 2013, filed July 23, 2013 (Doc. 51-1) ].

7. The Disciplinary Board found that Ms. Forney did not violate the Rules of Professional Conduct. [See Letter from The Disciplinary Board to Paul Livingston, executed July 9, 2013, filed July 23, 2013 (Doc. 51-2) ].

Response to Motion to Disqualify ¶¶ II.lII.7, at 6 (setting forth these facts).

4. The Motion to Disqualify: The Parties’ Legal Arguments,

In their Motion to Disqualify Memo., the Plaintiffs substantially assert the same arguments that they raise in the Motion to Disqualify: that Forney violates rules 16-107 and 16-307 of the New Mexico Rules of Professional Conduct and rules 1.7 and 3.7 of the American Bar Association’s Rules of Professional Conduct by representing “herself, the City of Albuquerque, the Mayor, the Chief Administrative Officer, and the Transit Department Director in this case.” Motion to Disqualify Memo, at 1. They say that Forney is almost certainly “aware of both the benefits and risks of group representation, as well as the ethical factors and implications raised by her concurrent representation of herself and multiple clients in the same case.” Motion to Disqualify Memo, at 1. They argue that Forney’s interests conflict with her clients’ interests. See Motion to Disqualify Memo, at 1. They also maintain that

the conflict of interests among the parties represented by Ms. Forney is only part of the problem. The other part, perhaps more significant, is the homogenization that Ms. Forney provides to the defendants^] cases. Without consultation, often without knowledge or communication of any sort, defendants have relinquished their policy-making and related activities to their attorneys. However, as with Ms. Forney’s multiple representation and neglect of former Mayor Martin Chavez in Salazar I (at the same time she is filing frivolous counterclaims charging plaintiffs in three lawsuits with disparaging Mayor Berry’s election aspirations) the City’s representational scheme runs afoul of the law and principles of good government, and things start to unravel. That is what is happening here.

Motion to Disqualify Memo, at 2.

The Plaintiffs cite Shabbir v. Pakistan International Airlines, 443 F.Supp.2d 299, 301 (E.D.N.Y.2005), and In re Snyder, 472 U.S. 634, 105 S.Ct. 2874, 86 L.Ed.2d 504 (1985), for the propositions that the Court has the authority and the responsibility “to uphold the applicable ethical precepts of the district in which it sits,” and that the Court must balance “an individual’s right to choose his own freely chosen counsel [with] the need to maintain the highest ethical standards of professional responsibility,” asserting that “any doubt is to be resolved in favor of disqualification.” Motion to Disqualify Memo, at 2 (internal quotation marks omitted). According to the Plaintiffs, the Defendants did not choose Ms. Forney, but she was assigned to do this work; therefore, in their view, “the right to their own freely chosen counsel is not at issue.” Motion to Disqualify Memo, at 2 (internal quotation marks omitted). The Plaintiffs quote a pleading from Salazar I in ■ which Forney relays that she was assigned to represent the Defendants. See Motion to Disqualify Memo, at 2-3. The Plaintiffs assert that the Court must disqualify an attorney “when there is a clear violation of the Code of Professional Responsibility and a significant risk of tainting the judicial process.” Motion to Disqualify Memo, at 3. The Plaintiffs state that “[t]he guiding principle in considering motions to disqualify counsel is safeguarding the integrity of the court proceedings.” Motion to Disqualify Memo, at 3 (internal quotation marks omitted).

The Plaintiffs quote rule 16-107 of the New Mexico Rules of Professional Conduct, which provides:

RULE 16-107. CONFLICT OF INTEREST; CURRENT CLIENTS

A. Representation Involving Concurrent Conflict of Interest. Except as provided in Paragraph B of this rulé, a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:

(1) the representation of one client will be directly adverse to another client; or

(2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.

B. Permissible Representation When Concurrent Conflict Exists. Notwithstanding the existence of a concurrent conflict of interest under Paragraph A of this rule, a lawyer may ■ represent a client if:

(1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client;

(2) the representation is not prohibited by law;

(3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and

(4) each affected client gives informed consent, confirmed in writing.

Rule 16-107 N.M.R.A, See Motion to Disqualify Memo, at 3. The Plaintiffs also quote the following passage from the committee commentary to that rule:

Informed consent requires that each affected client be aware of the relevant circumstances and of the material and reasonably foreseeable ways that the conflict could have adverse effects on the interests of that client. See Rule Paragraph E of Terminology of the Rules of Professional Conduct (informed consent). The" information required depends on the nature of the conflict and the nature of the risks involved.- • When representation of multiple clients in a single matter is undertaken, the information must include the implications of the common representation, including possible effects on loyalty, confidentiality and the attorney-client privilege and the advantages and risks involved.

Rule 16-107 N.M.R.A. Committee Commentary ¶ 18. See Motion to Disqualify Memo, at 4. The Plaintiffs assert that “[i]t cannot be ' denied that Ms. Forney has taken on and is currently engaging in representation of multiple clients in a single matter without discussion or consideration of the implications of the common representation and the advantages and risks involved.” Motion to Disqualify Memo, at 4 (internal quotations and alteration omitted). Citing a student note from the Yale Law Journal, the Plaintiffs argue that, when a municipal attorney represents both a municipality and an official of the municipality in a § 1983 lawsuit, that representation may run afoul of Rule 1.7 of the American Bar Association’s Model Rules of Professional Conduct and its equivalents that states have enacted. See Motion to Disqualify Memo, at 4-5 (quoting Dina Mishra, Note, When the Interests of Municipalities and Their Officials Diverge: Municipal Dual Representation and Conflicts of Interest in § 1983 Litigation, 119 Yale L.J. 86 (Oct. 2009); Ann. M. Scarlett, Representing Government Officials in Both Their Individual and Official Capacities in Section 1983 Actions after Johnson v. Board of County Commissioners, 45 Kan. L.Rev. 1327 (July 1997) (“An attorney representing municipal officials in both individual and official capacities faces a potentially impermissible conflict of interest, because municipal officials are trying to prove they acted pursuant to official policy or custom while the municipality is trying to prove the opposite.” (alteration omitted)).

According to the Plaintiffs,' “the most important reason to require counsel to be free of conflicts is the duty of loyalty to the client, and what that means for the judicial system.” Motion to Disqualify Memo, at 5 (citing Anderson v. Eaton, 211 Cal. 113, 293 P. 788 (1930)). The Plaintiffs assert that “Forney’s joint and multiple representation of the government and government officials in this case cannot possibly be reconciled with her duty of loyalty to one or another of her ‘clients.’ The concept of shared loyalty, if possible at all, must be controlled through the use of informed consent.” Motion to Disqualify Memo, at 5 (quotation unattributed). The Plaintiffs state that Forney will deny the existence of a conflict, “even between two political rivals such as Mayor Berry and former Mayor Chavez,” but argues that “ ‘(a)n objective standard is used’ and a ‘subjective belief that no conflicts existed is irrelevant.[’] The New Mexico Court notes that ‘(v)iewed objectively, the facts speak for themselves.’ ” Motion to Disqualify Memo, at 6-7 (quoting In the Matter of Stuart L. Stein, Esquire, 2008-NMSC-013, 143 N.M. 462, 468-69, 177 P.3d 513, 519-20).

The Plaintiffs also argue that Forney’s representation of multiple clients and the City of Albuquerque violates other rules of professional conduct. See Motion to Disqualify Memo, at 6. Particularly, they point to rule 16-102, which provides that “a lawyer shall abide by a client’s decisions concerning the objectives of representation and ... shall consult with the client as to the means by which they are to be pursued .... A lawyer shall abide by a client’s decision whether to settle a matter.” Motion to Disqualify Memo, at 6 (quoting Rule 16-102 N.M.R.A.). The Plaintiffs assert that there is no reason to believe that Forney has discussed the means by which she is to pursue the objectives of her representation, and that

[t]his practice also violates Rule 16-104, which requires a lawyer to “consult with the client about the means by which the client’s objectives are to be accomplished” and which provides that “A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.”

Motion, to Disqualify Memo, at 6 (emphasis omitted) (quoting Rule 16-104 N.M.R.A.). According to the Plaintiffs, after looking at all four cases in which Forney is involved and the number of clients that she simultaneously represents, “Ms. Forney’s personal interests, and representation of the City of Albuquerque all at the same time, Ms. Forney would surely find it impossible to fashion a coherent explanation.” Motion to Disqualify Memo, at 6-7. The Plaintiffs assert that her conduct implicates additional ethical rules:

• Rule 16-113 concerns representing an “Organization as client,” and provides that a lawyer representing an organization may also represent any of its employees” or other constituents. With respect to consent of the City, Rule 16-113 provides that:

G. Personal representation of officer or employee. A lawyer representing an organization may also represent any of its directors, officers, employees, members, shareholders or other . constituents, subject to the provisions of Rule 16-107 of the Rules of Professional Conduct. If the organization’s consent to the dual representation is required by Rule 16-107 of the Rules of Professional Conduct, the consent shall be given by an appropriate official of the organization other than the individual who is to be represented.

Rule 16-304 requires “Fairness to opposing party and counsel,” and Rule 16-307 prohibits a lawyer from “act(ing) as advocate at a trial in which the lawyer is likely to be a necessary witness.”

Motion to Disqualify Memo, at 7 (emphasis in Motion to Disqualify Memo.). ;

The Plaintiffs also suggest that, because Forney “is conflicted among her own interests, the individual clients’ interests, and the interests of the City of Albuquerque, and who fails to provide her clients with any explanation or opportunity to consent is largely incapable of engaging in” what they call a lawyer’s “[m]ost important[ ]” ethical obligation: “engaging in zealous advocacy or competently, diligently, or loyally representing even two clients in the same case, to say nothing at all of the conflicting interests demonstrated in these cases.” Motion to Disqualify Memo, at 7.

The Plaintiffs also raise arguments particular to the § 1983 context: they point out that, after Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), “the interests of a municipality and its employees inherently, conflict ]: the municipality avoids liability by showing the employee was not acting within the scope, of his official duties, while the employee may avoid liability by showing he was acting within the scope of his duties.” Motion to Disqualify Memo, at 8 (emphasis in original) (citing Dunton v. Cnty. of Suffolk, 729 F.2d 903 (2d Cir.1984)). They cite Arthur v. City of Galena, 2004 WL 2331920 (D.Kan. June 2, 2004), where the Motion to Disqualify Memo, at 8 (quoting Arthur v. City of Galena, 2004 WL 2331920, at *1 (source of internal quotation not identified)). The Plaintiffs state that Arthur v. City of Galena referred to Johnson v. Board of County Commissioners, 85 F.3d 489 (10th Cir.1996), in which the United States Court of Appeals for the Tenth Circuit declined to adopt a per se rule, but held that, “if a ‘potential conflict matures into an actual material conflict, separate representation would be required.’ ” Motion to Disqualify Memo, at 9 (quoting Johnson v. Bd. of Cnty. Comm’rs, 85 F.3d at 493-94). According to the Plaintiffs, the Tenth Circuit in Johnson v. Board of County Commissioners adopted a procedure that the United States Court of Appeals for the Second Circuit had adopted, citing Kounitz v. Slaatten, 901 F.Supp. 650, 658-59 (S.D.N.Y.1995):

Plaintiff sued the City, the City Manager, and members of the City Commission. He moved to disqual[ ]ify the attorneys representing both the City and the remaining individual defendants on the basis of an inherent conflict of interest. The Court discussed its authority and how it would proceed:

The Court has the inherent power to disqualify counsel “where necessary to preserve integrity of the adversarial process.” .... A motion to disqualify must be decided on its own facts, and the Court must carefully balance the interest in protecting the integrity of the judicial process against the right of a party to have the counsel of its choice:... The moving party bears the initial burden of going forward with evidence sufficient to establish a prima facie case that disqualification is warranted. The ultimate burden of proof, however, lies with the attorney or firm whose disqualification is sought.

This procedure requires counsel to notify the district court and the defendants of the potential conflict and submit to the district court for determination the issue of whether the defendants fully understand the potential conflict and, if so, whether the defendants choose joint representation. The Court went on to note that the individual defendants should be told it is advisable that he or she obtain independent counsel on any individual capacity claim.

Motion to Disqualify Memo, at 9 (quoting Arthur v. City of Galena, 2004 WL 2331920, at *8; citing Galindo v. Town of Silver City, 127 Fed.Appx. 459 (10th Cir.2005) (unpublished)). The Plaintiffs continued:

In Johnson [u Board of County Commissioners], the Tenth Circuit Court’s characterization of the Second Circuit’s process “indicates the court itself will ensure, by examination or otherwise, that the defendants are aware of the conflict and are submitting an informed consent.[”] The Court wanted to make clear “that, as with many issues relating to the relationship between attorney and client, the crucial element is adequate communication.” Johnson [v. Board of County Commissioners ], 85 F.3d at 494.

Motion to Disqualify Memo, at 9.

According to the Plaintiffs, the Second Circuit in Dunton v. Cnty. of Suffolk noted that both sides must bring a conflict of interest that multiple-client representation causes to the Court’s attention. See Motion to Disqualify Memo, at 9-10 (citing Dunton v. Cnty. of Suffolk, 729 F.2d at 909). They reemphasize that, in their view, “the right of parties to choose their own counself, although] generally important, ... is hardly a factor here.” Motion to Disqualify Memo, at 10.

The Plaintiffs also assert that, because the Defendants’ papers “are filed as group submissions,” they have been prejudiced by multiple representation. Motion to Disqualify Memo, at 10. They maintain that, unless each defendant responds to each allegation in the Complaint, “no individual defendant has a voice or a meaningful response to the factual allegations and hence, everything is either denied or the product of the defense counsel’s opinion or invention.” Motion to Disqualify Memo, at 10. “Moreover,” the Plaintiffs say, “the City ‘representation’ of its Labor Board, Personnel Board, and Personnel Hearing Officer, by another attorney, apparently without any knowledge of or communication with the Boards, is only another demonstration of the City’s lack of ethical guidance and understanding.” Motion to Disqualify Memo, at 10 (quotation unattributed).

The Plaintiffs conclude by saying that Forney removed this case to the federal court and purports to represent the City and all the named Defendants as well as herself through counsel. Ms. Forney concurrently represents individuals and officials whose interests conflict. She engaged in (was “assigned to”) representation and continued that representation without the “informed consent” of her clients, i.e., without any assessment, evaluation, or communication of the risks, benefits, effects and ramifications of her collective representation, her concurrent representation of the City of Albuquerque, or the course of litigation chosen by - the. City’s counsel without .consultation with her clients. Other matters, such as the filing of counterclaims against plaintiffs and related activities have occurred without the informed consent of the individual and official defendants or the City of Albuquerque.

Accordingly, Plaintiffs respectfully request that the Court disqualify Paula Forney as attorney representing the City and its defendant officials and individuals in this case on the grounds that her representation of different clients concurrently, some or many with adverse interests, violates the relevant provisions of the Code of Professional Conduct and is prejudicial to Plaintiffs and the administration of justice in this case.

Motion to Disqualify Memo, at 10-11.

In their Response to Motion to Disqualify, the City Defendants assert that the Court should deny the' Motion to Disqualify for the following reasons:

First, plaintiffs, in this motion, do not identify any conflicts, actual or potential, between any defendant or between Ms. Forney and defendants. Second, there is no evidence or arguments that there are any actual or potential conflicts between any defendant or Ms. Forney and any defendant. Third, Ms. Forney will not be a witness in this case. Fourth, the purpose of plaintiffs filing this motion is to try to have some input in selecting the attorney to represent the City defendants and to attempt to make Ms. Forney a witness which, plaintiffs erroneously believe, will prevent her from representing the City defendants. Opposing counsel should not have a say in selecting an opponent’s attorney either by naming her as a witness or by alleging some undisclosed conflict.

Response to Motion to Disqualify Memo, at 1-2. Thé City Defendants note that the party seeking disqualification bears the burden of establishing that counsel should be disqualified, and maintain that the Plaintiffs have not carried that burden. See Response to Motion to Disqualify at 2 (citing Roy D. Mercer, LLC v. Reynolds, 2013-NMSC-002, — N.M. -, 292 P.3d 466, 471). Globally, the City Defendants note that the Plaintiffs have filed the motion — not a defendant — and that, as a general rule, “[a] party has the right to be represented by an attorney of his or her own choosing,” and “[t]he Court may reject a party’s chosen counsel only if a compelling reason exists that supports the disqualification of counsel.” Response to Motion to Disqualify Memo, at 3 (citing Sanders v. Rosenberg, 1997-NMSC-002, 122 N.M. 692, 694, 930 P.2d 1144, 1146). Moreover, they state that both the Supreme Court of New Mexico and the Tenth Circuit have recognized that parties frequently use such motions to disqualify as a litigation tactic. See Response to Motion to Disqualify Memo, at 3 (citing Chappell v. Cosgrove, 1996-NMSC-020, 121 N.M. 636, 639, 916 P.2d 836, 839; Chavez v. New Mexico, 397 F.3d 826, 839-40 (10th Cir.2005)). Accordingly, the City Defendants assert that “[t]he Court should view this motion with skepticism.” Response to Motion to Disqualify Memo, at 4. They continue:

Only a former or current client has standing to bring a motion to disqualify counsel on the basis of a conflict of interest. In re Yam Processing Patent Validity Litig., 580 F.2d 83 (5th Cir.1976) (often cited in standing cases); Great Lakes Constr., Inc. v. Burman, [186 Cal.App.4th 1347] 114 Cal.Rptr.3d 301, 309 (Ct.App.2010) (“We do not agree because [movant] cannot show any legally cognizable interest that is harmed by [the attorney’s] joint representation of their adversaries”); Cunningham ex. rel. Rog