When is an attorney’s conflict of interest not a conflict of interest?
When both sides benefit, Sandoval County officials say, and that’s why County Attorney Michael Eshleman is representing both the county and owners of the properties in separate matters that came before the county commission at its Dec. 14 meeting.
The commission waived the conflict of interest provision under the professional rules of conduct for attorneys to allow Eshleman to represent donors of land in probate proceedings, properties primarily in the Rio Rancho Estates area.
According to the resolution authorizing the waiver, Sandoval County gets approached by people who wish to donate land, sometimes property titled in the name of people who are dead and no probate estate has been opened. Waiving the attorney’s conflict under the attorney ethics rules allows the attorney to assist donors in probating an estate so clear title can be conveyed to the county.
A rush of requests
Eshleman told commissioners that the Sandoval County regularly gets requests from people — often from out of state –- wishing to dispose of their property. He said there had been a “rush” of requests after the last property tax bills went out.
Many of the requests come from the heirs of people who purchased property decades ago and many are in Rio Rancho Estates, he said. Eshleman said he’s recently talked to a half dozen people from out of state about donating late – one whose parents have been dead for 40 years.
With him assisting in the transactions, it allows the county to get a clean title on the properties. The advantage to the landowner is they don’t have to pay several hundred dollars in attorney’s fees and no longer have to pay an annual property tax on undeveloped property they have no use for.
Eshleman said the folks donating the property would also sign a waiver acknowledging that a conflict of interest could exist.
“If some conflict arose, we couldn’t continue,” he said.
The rush of requests have led to discussions about soliciting the county’s services to property owners in the area. Eshleman said he has met with the county assessor and county treasurer about doing just that. “To let (property owners know we’re interested in working with them.”
District 4 Commissioner David Heil, whose district includes Rio Rancho Estates, estimated that the county gets 10 to 20 inquiries a year from people looking to unload their property.
He said a county analysis from 2014 indicated Rio Rancho Estates didn’t have the water table to create a housing development and it should be left as open space.
“By going through this process we are in essence creating that open space to deal with the water situation in that part of Rio Rancho Estates,” he said.
Same for shelter site
Eshleman is also representing both sides in the county’s effort to purchase 22.6 acres of land in Bernalillo for an animal shelter and animal services complex (See story Page 1).
At the same meeting, Eshleman was specifically authorized through resolution to draft and file court documents in probate proceedings on behalf of the property’s heirs and assist them in preparing documents to complete the purchase.
The filings are necessary to assure Sandoval County can obtain clear title to the land, County Manager Wayne Johnson said.
Johnson said Eshleman would help the sellers with the paperwork to “work toward the common goal of purchasing the property.”
Commissioner Heil said Eshleman’s role was not really a conflict, in that he was serving the best interests of everyone.
Heil said he couldn’t say much about the negotiation of the property but, “I can tell you that the acquisition is attractive to the county, and the little bit of work the county attorney is going to have to do to help the seller clean up the paperwork is to the county’s advantage, and the taxpayer’s advantage.”
Johnson noted that once the property’s title is clear, the matter would come back to the commission to approve the sale.
Not on board
Not everyone liked the idea of the county attorney representing both sides in such matters.
Speaking before during the public comment session prior to the commission taking up agenda items waiving the attorney’s conflict of interest, county resident Ramona Goldstein said Eshleman should be representing only the interests of the county in these matters.
“How is it possible when he is paid to represent the sole interest of the county that he should be allowed to waive conflict of interest requirements? How is it fair for the taxpayers to pay him to help individuals with their probate issues?” she asked.
She said those people seeking help with probate issues should hire their own attorney.