In Re Ferguson

Office of the Director New Mexico
10:20:01 2021.07.27 Compilation
'00'06- Commission

IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: 2021-NMSC-024

Filing Date: June 10, 2021

No. S-1-SC-38741

IN THE MATTER OF
WILLIAM S. FERGUSON, ESQUIRE,
An Attorney Licensed to Practice Before
the Courts of the State of New Mexico

DISCIPLINARY PROCEEDING

Released for Publication August 3, 2021.

Anne L. Taylor, Chief Disciplinary Counsel
Jane Gagne, Assistant Disciplinary Counsel
Albuquerque, NM

for The New Mexico Disciplinary Board

Brant & Hunt, Attorneys
John M. Brant
Albuquerque, NM

for Respondent

OPINION

PER CURIAM.

{1} William Ferguson, an Albuquerque personal injury lawyer, purchased a Ferrari
for his personal use that he registered to his company, Motiva Performance
Engineering, LLC. In a suit for damages to the Ferrari, he represented to the court and
the parties that the Ferrari belonged to Motiva. But when he thought that he could evade
a judgment against Motiva by claiming that the Ferrari belonged to him, he told another
court the opposite: that the Ferrari belonged solely to him and never belonged to
Motiva. These contradictory representations became the subject of disciplinary
proceedings. Mr. Ferguson attempted to justify the contradictory statements by telling
the disciplinary board that there are “two truths” about ownership. There are not two
truths, but only one: Mr. Ferguson misrepresented facts before a court of law. We issue
this public censure to admonish Mr. Ferguson for his misconduct and to caution him
against engaging in similar unprofessional conduct in the future.

I. BACKGROUND
{2} Mr. Ferguson owned and operated five companies relevant to this disciplinary
proceeding: Motiva; Avatar Recoveries, LLC; DealerBank, LLC; Armageddon Tool &
Die, LTD (Tool & Die); and Armageddon High Performance Systems d/b/a Armageddon
Turbo Systems (Turbo Systems). Mr. Ferguson was the sole owner of three of those
companies—Avatar, DealerBank, and Tool & Die—and the majority owner of Motiva
and Turbo Systems. In addition to being the majority owner, Mr. Ferguson was the
managing member of Motiva.

{3} Motiva was a high-end car dealership and automotive shop that specialized in
performance-enhancing vehicle modification. As a car dealership, Motiva was exempt
from paying excise tax on vehicles that it acquired for resale. Vehicles that it acquired
for resale were eligible for special “demonstrator” license plates. The demonstrator
plates are available solely for use on vehicles that are part of a dealer’s inventory, and
Motiva was issued five demonstrator plates.

{4} In 2014, Mr. Ferguson purchased a $200,000 Ferrari which he intended to use as
his personal vehicle, but he titled and dealer-registered it to Motiva. Mr. Ferguson
affixed a Motiva demonstrator plate to the Ferrari expressly to avoid paying $6,000 in
excise taxes that he would have owed had he put the Ferrari in his own name. Doing so
was justified, in Mr. Ferguson’s view, because “That’s the way the business works.” Mr.
Ferguson used the Ferrari, titled and registered to Motiva, as his personal vehicle.

{5} In 2016, the Ferrari was damaged in the parking lot of Mr. Ferguson’s law firm
when one of Mr. Ferguson’s tenants accidentally drove into it. Mr. Ferguson brought suit
for damages, including punitive damages, on behalf of Motiva. He later claimed that he
sued in Motiva’s name rather than his own because the person he was suing was
disabled: “A personal injury attorney suing a paraplegic lady wouldn’t have been my first
choice.” In that lawsuit, Mr. Ferguson consistently and exclusively represented to the
court and to the other driver’s insurance company that Motiva owned the Ferrari.

{6} When Mr. Ferguson won that suit on behalf of Motiva, he executed a Property
Damage Only Release in exchange for $9,051.51 for repairs to the Ferrari and
$40,984.49 for loss of its use and its diminished value. Mr. Ferguson did not deposit
those funds into his trust account for the benefit of Motiva, but into his personal account.

{7} The following year, one of Motiva’s customers sued Motiva for faulty automotive
work that destroyed the customer’s vehicle. Creig Butler v. Motiva Performance Eng’g,
LLC, No. D-202-CV-2017-01393 (Butler lawsuit). The case went to trial and the jury
awarded the customer more than $200,000 in damages.

{8} Four days after the jury returned its verdict against Motiva, Mr. Ferguson
transferred the Ferrari out of Motiva’s name and into the name of DealerBank, another
company over which he maintained control. At that time, the Ferrari was valued at
$135,000 to $140,000. Mr. Ferguson freely admitted that he transferred title in an
attempt to avoid execution of the judgment in the Butler lawsuit. He also began
transferring other assets out of Motiva’s name, closed down Motiva’s business
operations, and declared Motiva bankrupt.
{9} The plaintiff in the Butler lawsuit, unable to collect on the judgment against
Motiva, moved for a declaration of ownership of the Ferrari and other assets. In the
ensuing litigation, Mr. Ferguson strenuously argued that he was the sole and exclusive
owner of the Ferrari and that Motiva never owned the Ferrari. Mr. Ferguson testified
under oath that it was never his intent to make the Ferrari part of Motiva’s inventory.
Despite Mr. Ferguson’s arguments to the contrary, the district court found that the
Ferrari belonged to Motiva. Accordingly, the district court enjoined Mr. Ferguson from
selling the Ferrari or causing it to leave the state. Despite that injunction, Mr. Ferguson
pledged the Ferrari as collateral on a $120,000 bank loan; it is still encumbered.

II. DISCUSSION

{10} Mr. Ferguson purchased, titled, and registered the Ferrari in the name of his car
dealership, Motiva, to obtain a personal benefit. He did so with the full intention to use
the Ferrari as his personal vehicle but, at the same time, he avoided paying $6,000 in
excise tax because he represented that Motiva, a car dealership, owned the car. He
again claimed that Motiva owned the Ferrari when he sued his tenant for damaging it,
and by suing on Motiva’s behalf, he felt he could avoid personal reputational harm from
suing his paraplegic tenant for actual and punitive damages over minor damages to the
Ferrari. In these situations, including in a court of law, Mr. Ferguson represented
unequivocally that Motiva owned the Ferrari.

{11} On the other hand, when Motiva’s ownership of the Ferrari would mean a
financial loss, Mr. Ferguson explicitly denied before a court of law the very same fact
that he had previously asserted in a different court—that Motiva owned the Ferrari. We
agree with the disciplinary board that both of these statements cannot be true. In
asserting these mutually exclusive positions, Mr. Ferguson violated his duty of candor to
the court required by Rule 16-303(A)(1) NMRA. “Lawyers are officers of the court and
are always under an obligation to be truthful to the court.” Woodson v. Phillips
Petroleum Co., 1985-NMSC-018, ¶ 17, 102 N.M. 333, 695 P.2d 483. This conduct also
violated Rule 16-804 NMRA because it involved dishonesty or misrepresentation.

{12} The sanction we impose today is solely in response to the lack of candor to the
court regarding Mr. Ferguson’s contradictory representations about the ownership of the
Ferrari. We do not reach other questions that naturally arise from these facts because
the record is not fully developed and the issues are not squarely presented. For
example, we do not reach the question of whether Mr. Ferguson violated his
professional duties by dealer-registering a vehicle that he intended for personal use in
order to evade excise tax. Nor do we reach the question of whether Mr. Ferguson
violated his professional duties by pledging the Ferrari as collateral on a loan while
knowing that the Ferrari was subject to a preliminary injunction. However, should these,
or other issues become ripe for our review in a future disciplinary proceeding we will not
hesitate to impose further sanctions as may be appropriate. No member of the bar
should understand this censure to in any way condone or encourage similar conduct.

III. CONCLUSION
{13} This public censure shall be published in the Bar Bulletin. Pursuant to our Order
of May 6, 2021, Mr. Ferguson is suspended from the practice of law for a period of
ninety (90) days. Mr. Ferguson’s reinstatement is conditioned on his taking the
Multistate Professional Responsibility Examination no later than November 30, 2021,
and receiving a scaled score of at least eighty percent (80%). Mr. Ferguson’s
reinstatement is also conditioned on a showing that no additional disciplinary charges
have been filed against him for the conduct at issue in the Butler lawsuit. Ferguson shall
pay costs as set forth in our May 6 Order.

IT IS SO ORDERED.

MICHAEL E. VIGIL, Chief Justice

C. SHANNON BACON, Justice

DAVID K. THOMSON, Justice

JULIE J. VARGAS, Justice