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End-of-life notice: American Legal Ethics Library

As of March 1, 2013, the Legal Information Institute is no longer maintaining the information in the American Legal Ethics Library. It is no longer possible for us to maintain it at a level of completeness and accuracy given its staffing needs. It is very possible that we will revive it at a future time. At this point, it is in need of a complete technological renovation and reworking of the "correspondent firm" model which successfully sustained it for many years.

Many people have contributed time and effort to the project over the years, and we would like to thank them. In particular, Roger Cramton and Peter Martin not only conceived ALEL but gave much of their own labor to it. We are also grateful to Brad Wendel for his editorial contributions, to Brian Toohey and all at Jones Day for their efforts, and to all of our correspondents and contributors. Thank you.

We regret any inconvenience.

Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.


New Mexico Legal Ethics

INTRODUCTION

Lawyers are guided by their consciences and internal calls to service, but since the early 1900’s their conduct also has been directed by formal codes.  In the modern era, attorneys in New Mexico must conform with detailed standards concerning nearly all aspects of their day-to-day functioning – from establishing the client-lawyer relationship, to maintaining the integrity of the profession.  Not only do these standards serve to protect the public, they also remind lawyers of their better natures.

0.1:100            Sources of Law and Guidance

0.1:101            Professional Codes

The conduct of attorneys practicing law in New Mexico is governed primarily by the New Mexico Rules of Professional Conduct (“NMR” or “New Mexico Rule”), which are set forth in Chapter 16 of the New Mexico Rules Annotated (“NMRA”), and which generally parallel the American Bar Association’s Model Rules of Professional Conduct (“MR”).  New Mexico utilizes a unique numbering system which evokes the system used in the MR.  Thus, for example, the analog of MR 1.7 is NMR 16-107.

The New Mexico Supreme Court adopted extensive amendments to the NMR on September 17, 2008.  The amended rules took effect on November 3, 2008.  When originally adopted in 1986, the NMR replaced the New Mexico Code of Professional Responsibility.  The Code was based on the American Bar Association’s Model Code of Professional Responsibility.

Other professional codes and rules adopted by the New Mexico Supreme Court and now in effect include Rules Governing Admission to the Bar, Rules Governing Discipline, Rules for Minimum Continuing Legal Education, Rules of Legal Specialization, Rules Governing Legal Assistant Services, the Code of Judicial Conduct, and Rules Governing Judicial Education.

0.1:102            “Other” Law and Moral Obligation

While many of a lawyer’s professional responsibilities are prescribed in the New Mexico Rules of Professional Conduct, a lawyer is to act within a larger legal context that includes licensing rules and statutes, laws defining specific obligations of lawyers, substantive and procedural law in general, a lawyer’s personal conscience, and the approbation of professional peers.  See NMR “Preamble” and “Scope.”

New Mexico has enacted a substantial set of statutes governing attorneys, their conduct, and the practice of law.  See § 36-2-1 to -40 NMSA 1978 (1991 Repl. Pamp. & 2001 Cum. Supp.).  These statutes pertain to, among other things, defining and regulating the practice of law, duties and the authority of attorneys, breaches of confidences, deserting clients, grounds for disbarment and suspension, unauthorized practice of law, solicitation, and fee splitting.

The state courts of New Mexico and certain federal courts have interpreted and applied the NMR in numerous decisions.  The New Mexico Attorney General has issued Opinions concerning lawyer ethics issues.  Discussions of legal ethics appear in New Mexico Bar Association Ethics Advisory Committee Opinions (“State Bar Advisory Opinion”). Professionalism standards are stated in A Creed of Professionalism of the New Mexico Bench and Bar.  Each lawyer admitted to the Bar of the State of New Mexico takes an oath that includes standards of conduct.

NMR 16-804 includes in the definition of “professional misconduct” any actual or attempted violation of the Rules of Professional Conduct, any conduct “prejudicial to the administration of justice,” and any conduct “that reflects adversely” on the lawyer’s “fitness as a lawyer.”  However, the prohibition against the “appearance of impropriety” that was contained in New Mexico’s version of the Model Code of Professional Responsibility, has been found not to have survived adoption of the New Mexico Rules of Professional Conduct.

According to the Preamble to the NMR, a lawyer should strive to attain the highest level of skill possible, to improve the law and the legal profession, and to exemplify the legal profession’s ideals of public service.  The Preamble, Scope, and Terminology sections of the New Mexico Rules of Professional Conduct–which discuss “other” law and moral obligations–generally track similar introductory sections found in the MR of the American Bar Association (“ABA”). 

Compliance with the NMR, as with all law in an open society, depends primarily upon understanding and voluntary compliance, secondarily upon reinforcement by peer and public opinion, and finally, when necessary, upon enforcement through disciplinary proceedings.  The Rules do not exhaust the moral and ethical considerations that should inform a lawyer, for no worthwhile human activity can be completely defined by legal rules.  The Rules simply provide a framework for the ethical practice of law.

0.1:103            Background of the New Mexico Rules of Professional Conduct

Following the adoption of the Model Rules of Professional Conduct by the House of Delegates of the ABA on August 2, 1983, the Supreme Court of New Mexico, by order issued June 26, 1986, adopted the New Mexico Rules of Professional Conduct effective January 1, 1987.  By order 08-8300-29 effective November 3, 2008, the New Mexico Supreme Court amended the New Mexico Rules of Professional Conduct.  As presently adopted and amended, the New Mexico Rules of Professional Conduct contain certain differences from the Model Rules approved by the ABA.  However, the current NMR tracks the ABA Model Rules much more closely than most other states’ rules, and the NMR are identical to the ABA models on key subjects such as fees, confidentiality, and corporate representation.  The Scope in NMR differs from its source in MR by adding provisions which state the Rules are not intended to affect the attorney-client or work product privileges, and the 2008 Committee Commentaries–which closely follow the Comments in the MR–explain and illustrate the Rules without changing their application or interpretation.  NMR’s Scope also stands out by saying an attorney’s discretion not to disclose confidential information under NMR 16-106 should not be subject to reexamination.

The 2008 amendments were formulated by the New Mexico Supreme Court’s Code of Professional Conduct Committee.

0.1:104            Unusual Aspects of the New Mexico Ethics Rules 

Notwithstanding the clear similarities, sometimes the NMR and/or the accompanying Committee Commentary differ substantially from the MR, as originally promulgated by the House of Delegates of the ABA on August 2, 1983, and as amended subsequently.   Some of the more prominent examples follow.

The NMR contain headings not found in the MR.  For instance, while the content of  NMR 16-107 is essentially identical to MR 1.7, NMR 16-107 also contains headings entitled “representation involving concurrent conflict of interest,” and “permissible representation when concurrent conflict exists.”

Perhaps most remarkably, the amended NMR 16-110 permits law firms to use screening to prevent imputation of conflicts from a lawyer’s work at a prior firm if the lawyer did not have a substantial role in the former client’s representation.  This is absent from MR 1.10.

New Mexico has not adopted MR 1.8(j), which forbids a lawyer to have sexual relations with a client unless they had a consensual sexual relationship when the lawyer-client relationship began.  Nor has New Mexico adopted MR 7.6, concerning political contributions to obtain legal engagements or appointments by judges.

NMR 16-505, on the subject of unauthorized practice of law, includes two provisions not found in MR 5.5 on employment of disbarred or suspended lawyers.  The New Mexico Rule adds that a lawyer shall not employ or continue the employment of a disbarred or suspended lawyer as an attorney; and shall not employ or continue the employment of a disbarred or suspended lawyer as a law clerk, paralegal or any other position of a quasi-legal nature if the suspended or disbarred lawyer has been specifically prohibited from accepting or continuing such employment by order of the Supreme Court or the disciplinary board. 

New Mexico’s rule on trial publicity, NMR 16-306, differs significantly from MR 3.6.  The New Mexico rule forbids a lawyer from making “any extrajudicial or out-of-forum statement in a proceeding that may be tried to a jury” if the lawyer “reasonably should know” that the statement is false or “creates a clear and present danger of prejudicing the proceeding.” 

NMR 16-117, on sale of a law practice, is unlike the MR 1.17 in regard to notifying clients of a proposed sale.

NMR 16-104 includes provisions not found in the MR which requires certain disclosure of professional liability insurance information.

The 2008 amendments to NMR retained a specific anti-discrimination rule.  See NMR 16-300.  The rule requires lawyers in judicial or quasi-judicial proceedings to refrain from manifesting bias or prejudice based on external factors such as gender, although the rule contains an exception for legitimate advocacy.  The MR do not contain an express anti-discrimination directive.

NMR 16-303 retains a unique section addressing a lawyer’s duty when making a limited entry of appearance.  The provision requires a lawyer to disclose the scope of the representation to the tribunal in certain circumstances. 

With regard to communications with persons represented by counsel, NMR 16-402 adds a sentence not found in MR 4.2, namely, “except for persons having a managerial responsibility on behalf of the organization, an attorney is not prohibited from communicating directly with employees of a corporation, partnership, or other entity about the subject matter of the representation even though the corporation, partnership or entity itself is represented by counsel.” 

NMR 16-504 contains a provision, not found in MR 5.4, that allows a lawyer who is completing unfinished legal work of a deceased, disabled or disappeared attorney to pay the attorney’s estate a proportionate share of the compensation received for the representation.

In New Mexico attorneys are obligated to report facts about a judge’s illegal sale, possession or use of controlled substances.  See NMR 16-803 (reporting misconduct).  Further, NMR 16-803 adds two other sections not found in MR 8.3: (D) regarding the cooperation and assistance of lawyers in investigatory and disciplinary proceedings, and (E) regarding an alcohol and substance abuse exception.

New Mexico’s rule on pro bono service, NMR 16-601, differs from MR 6.1 by providing that “the legal profession” has a responsibility to provide legal services to those unable to pay.  See also Rule 24-108 of the Rules Governing the New Mexico Bar.  The obligation is on “every lawyer” in MR 6.1.

NMR 16-102(D) forbids a lawyer from advising or assisting a client to engage in conduct which misleads the court.  MR 1.2(d) does not include this prohibition.

MR 3.8 sets forth special responsibilities of a prosecutor, and in parts (g) and (h) it requires the prosecutor to disclose potentially exculpatory information or take other remedial action under certain circumstances following a conviction.  NMR 16-308 does not include these provisions. 

The Preamble to the NMR differs from MR Preamble in a few instances.  For example, the New Mexico Preamble adds language calling upon lawyers to improve access to the legal system and to further the public’s understanding of and confidence in the rule of law and the judicial system.

The Scope section of the NMR also varies from the MR, by including the last three paragraphs:

“Moreover, these rules are not intended to govern or affect judicial application of either the attorney-client or work product privilege.  Those privileges were developed to promote compliance with law and fairness in litigation.  In reliance on the attorney-client privilege, clients are entitled to expect that communications within the scope of the privilege will be protected against compelled disclosure.  The attorney-client privilege is that of the client and not of the lawyer.  The fact that in exceptional situations the lawyer under the rules has a limited discretion to disclose a client confidence does not vitiate the proposition that, as a general matter, the client has a reasonable expectation that information relating to the client will not be voluntarily disclosed and that disclosure of such information may be judicially compelled only in accordance with recognized exceptions to the lawyer-client and work product privileges.

 

The lawyer’s exercise of discretion not to disclose information under Rule 16-106 should not be subject to reexamination.  Permitting such reexamination would be incompatible with the general policy of promoting compliance with law through assurances that communications will be protected against disclosure.

 

The comment accompanying each rule explains and illustrates the meaning and purpose of the rule.  The Preamble and this note on Scope provide general orientation.  The comments are intended as guides to interpretation, but the text of each rule is authoritative.  Research notes were prepared to compare counterparts in the ABA Model Code of Professional Responsibility (adopted 1969, as amended) and to provide selected references to other authorities.  The notes have not been adopted, do not constitute part of the model rules, and are not intended to affect the application or interpretation of the rules and comments.”

0.2:200            Forms of Lawyer Regulation in New Mexico

0.2:210            Judicial Regulation

Under Article III of the New Mexico Constitution, the New Mexico Supreme Court has the exclusive authority to regulate the practice of law.  See also, e.g., § 36-2-1 NMSA 1978 (1991 Repl. Pamp.) (“supreme court of the state of New Mexico shall ... define and regulate the practice of law within the state...”); U.S. v. Martínez, 101 N.M. 423, 684 P.2d 509 (1984) (Supreme Court has exclusive right to regulate practice of law); Matter of Adams, 102 N.M. 731, 700 P.2d 194 (1985) (Supreme Court has ultimate responsibility to grant or deny right to practice law in state); and State Bar v. Guardian Abstract & Title Co., Inc., 91 N.M. 434,  575 P.2d 943 (1978), appeal after remand, 92 N.M. 327, 587 P.2d 1338 (authority of Supreme Court to define and regulate the practice of law is inherently contained in the grant of judicial power to courts by the Constitution).

According to New Mexico Attorney General Opinion (“AG Opinion”) 1987-61, the Supreme Court possesses exclusive authority to regulate the conduct of lawyers, whether the conduct occurs before courts of law or before governmental bodies.  Therefore, it was determined that the State Racing Commission lacks authority to prohibit an attorney from representing a client in Commission hearings on the basis of alleged attorney misconduct. 

The New Mexico Supreme Court has the jurisdiction to enjoin the unauthorized practice of law by individuals who are not members of the bar.  It also has the duty to ensure that attorneys licensed to practice law are qualified to do so, both in terms of good morals and satisfactory education.  Matter of Stafford, 106 N.M. 298, 742 P.2d 510 (1987).

The prime purpose of licensing attorneys and in making them the exclusive practitioners in their field is to protect the public from evils occasioned by unqualified persons performing legal services; close regulation of those who practice law is to protect the unwary and uninformed from injury at the hands of persons unskilled or unlearned in the law.  State Bar v. Guardian Abstract & Title Co., Inc., 91 N.M. 434, 575 P.2d 943 (1978).

The New Mexico Supreme Court has created the Disciplinary Board for the purpose of handling disciplinary matters.  NMRA 17-102.  As an agent of the New Mexico Supreme Court, the Disciplinary Board has the power and duty to investigate the conduct of any attorney within the jurisdiction of the New Mexico Supreme Court.  It may initiate an investigation on its own motion or may undertake the same upon a motion by any person.  Id.

Similarly, the Board of Bar Commissioners and the Committee on the Unauthorized Practice of Law are empowered to maintain and prosecute suits to prevent the unauthorized practice of law.  State Bar v. Guardian Abstract & Title Co., Inc., 91 N.M. 434, 575 P.2d 943 (1978).   The Disciplinary Board has the duty to consider recommendations made by these committees and to formally reprimand attorneys in accordance with the New Mexico Rules.  NMRA 17-102. 

In the context of attorney discipline, any lawyer admitted to practice in New Mexico is subject to the disciplinary jurisdiction of the New Mexico Supreme Court and the Disciplinary Board.  Non-members engaged in the practice of law in New Mexico, lawyers or non-lawyers specially admitted to practice for a particular proceeding, other lawyers who practice law within New Mexico as in house counsel to corporations or other entities, and those lawyers who serve as counsel to governmental agencies or otherwise, are also subject to the exclusive disciplinary jurisdiction of the New Mexico Supreme Court and its Disciplinary Board.  NMRA 17-201. 

It is the obligation of the organized bar and the individual lawyer to give unstinted cooperation and assistance to the Supreme Court, and its agency, the Disciplinary Board, in discharging its function and duty with respect to discipline and in purging the profession of the unworthy.  NMRA 17, Preface.

The disciplinary rules do not usurp or limit the powers of courts to control proceedings before them.  For a discussion of the authority for, and the nature of, sanctions that may be imposed upon attorneys in connection with judicial proceedings, see section 0.2:250, infraSee also Matter of Jade G., 130 N.M. 687, 30 P.3d 376 (Ct. App. 2001) (under its inherent authority, a court may sanction parties and attorneys to ensure compliance with the proceedings of the court).

0.2:220            Bar Organizations

The New Mexico Board of Bar Commissioners is established by NMRA 24-101.  It was created by the New Mexico Supreme Court to establish and organize the State Bar of New Mexico.  Id.

The State Bar of New Mexico is located at 5121 Masthead NE, Albuquerque, NM 87109; phone 505-797-6000; fax 505-828-3765; e-mail sbnm@nmbar.org; website www.nmbar.org

The New Mexico State Bar is a mandatory Bar, as all persons licensed to practice law in New Mexico must be members of it.  NMRA 24-101.  It was established to aid the courts in improving the administration of justice, to promote and support the needs of all members, to be cognizant of the needs of individual and minority members of the profession, including the full and equal participation of minorities and women in the state bar and the profession at large, to improve the relations between the legal profession and the public, to encourage and assist in the delivery of legal services to all in need of such services, to foster and maintain high ideals of integrity, learning, competence and public service, to provide a forum for the discussion of subjects pertaining to the practice of law and law reform, to promote and provide continuing legal education in technical fields of substantive law and practice, and to participate in the legislative, executive and judicial process by informing its membership about issues affecting the legal system.  Id.

There are three sub-divisions of membership in the State Bar of New Mexico: the young lawyers division, the senior lawyers division, and the legal assistants division.  NMRA 24-101.   Members of the young lawyers division are all members of the State Bar of New Mexico who are under the age of thirty six (36) years, and those members who have been admitted to the practice of law in any state less than three years.  NMRA 24-101(1).  Members of the senior layers division are bar members in good standing who are fifty five (55) years of age or older, and who have practiced law for twenty five (25) years or more.  NMRA 24-101(2).  Members of the legal assistants division have graduated from an accredited program for legal studies, are ABA certified and have a minimum of three years experience as a legal assistant working under the supervision of a licensed New Mexico attorney.  NMRA 24-101(3).

Each year, every member of the state bar shall pay a license fee which shall be determined and fixed by the Board of Bar Commissioners.  NMRA 24-201.  Any person failing to pay the license fee shall be assessed a penalty fee.  Id.  Upon failure to pay the penalty fee, a member of the bar has fifteen (15) days to show cause why such member should not be suspended from the right to practice in the courts of the state.  Id.

The Board of Bar Commissioners is the governing board of the state bar.  NMRA 24-101(B). The Board has twenty-one (21) members, consisting of nineteen (19) district bar commissioners, the elected chair of the young lawyers division, and the elected chair of the senior lawyers division.  Id.  Each district bar commissioner is elected to a three (3) year term and holds office until his successor is elected and qualified.  NMRA 24-101(E).  There are seven (7) bar commissioner districts from which the Board of Commissioners is composed.  NMRA 24-101(C). 

The first bar commissioner district consists of Bernalillo County and is represented by eight (8) bar commissioners.  NMRA 24-101(C)(1).  The second district is made up of San Juan, McKinley, Cibola, and Valencia counties and is represented by one (1) bar commissioner.  NMRA 24-101(C)(2).  The third district consists of Rio Arriba, Sandoval, Los Alamos and Santa Fe counties and is represented by three (3) bar commissioners.  NMRA 24-101(C)(3).  The fourth district is made up of Taos, Colfax, Union, Mora, Harding, San Miguel, and Guadalupe counties and is represented by one (1) bar commissioner.  NMRA 24-101(C)(4).  The fifth district is made up of Quay, Curry, Roosevelt, and De Baca counties and is represented by one (1) bar commissioner.  NMRA 24-101(C)(5).  The sixth district consists of Lea, Eddy, Chaves, Lincoln, and Otero counties and has three (3) bar commissioners.  NMRA 24-101(C)(6).  The seventh district consists of Catron, Socorro, Torrance, Sierra, Hidalgo, Luna, Grant and Dona Ana counties and is represented by two (2) bar commissioner.  NMRA 24-101(C)(7).  Nominations to the office of district bar commissioner shall be by written petition of any ten (10) or more active status members of the bar in good standing.  NMRA 24-101(G).  No state or federal judge is eligible to serve as a member of the Board while in office.  Id.

Vacancies on the Board of Bar Commissioners are filled by appointment from the board, and district bar commissioners so appointed serve on the board until the next election, which is the 30th of November of each year.  NMRA 24-101(F), NMRA 24-101(H).  Each year, the Board of Commissioners elects a president, a vice president, a president-elect, and a secretary-treasurer.  NMRA 24-101(I).  All of the candidates must be members of the Board of Bar Commissioners, and shall be officers of the state bar and of its Board of Bar Commissioners.  Id.

A commissioner’s term of office may be extended by up to three (3) years if that commissioner’s term of office expires while that commissioner is serving in the position of president-elect, president, or immediate past president.  NMRA 24-101(J).  During the extended term, there shall be elected from the district from which the commissioner resides, one less member to the Board of Commissioners than said district would have otherwise been entitled to.  Id.  At the regular election of commissioners, one (1) year after the year when the said president’s term of office expires, an election shall be held in the district to elect a member from that district to the board who shall serve for the remainder of the term.  Id.

An integrated state bar comes into being by the Supreme Court’s action in admitting attorneys to practice; no separate statutory authorization is needed to create it.  State Bar v. Guardian Abstract & Title Co., Inc., 91 N.M. 434, 575 P.2d 943 (1978) (also stating that as used in statute recognizing existence of a state bar, “state bar” is a generic term referring to that group of attorneys who have been admitted to practice before courts of state).

The New Mexico Board of Bar Commissioners largely survived a suit brought by New Mexico attorneys challenging the Bar’s use of compulsory dues to fund specified activities, and the adequacy of the Bar’s disclosure of budget items, in Popejoy v. New Mexico Board of Bar Com’rs, 831 F. Supp. 814 (D.N.M. 1993), enforcement denied 1994 WL 823551, amended on reconsideration in part, 887 F. Supp. 1422 (D.N.M. 1995).  It was held that the State Bar may exact dues to support only those duties and functions of the bar which serve important and compelling governmental interests, and which are related to or germane to the Bar’s purposes.  Thus, the Bar Association may use mandatory dues to fund lobbying activities, including seeking support for funds for new appellate judges, for salary increases of judicial staff, for changes to compensation packages for state-employed lawyers and their staffs, for judicial information systems, and for court appointed representation in child abuse and neglect cases, because these activities are related or germane to the Bar Association’s purposes.  Therefore, the use of mandatory dues to support such lobbying activities did not violate attorney members’ First Amendment rights.

Similarly, the Bar Association’s acquisition of excess office space was not “political or ideological activity;” therefore, the use of mandatory dues to acquire excess office space was not inconsistent with attorney members’ First Amendment rights.  Also, the First Amendment does not preclude the state Bar Association from spending compulsory dues on pro bono activities in pursuing the goal of improving the delivery of legal services; providing specialized information to practicing attorneys is also permissible.  However, the integrated Bar Association may target specific groups for pro bono legal services only if selection of such groups is based on ideologically neutral criteria.  Id. (also providing that New Mexico State Bar was required to institute a time-keeping system for Bar employees to keep contemporaneous time records of their activities so that Bar members would have sufficient information to decide whether to object to any activity as non-chargeable).

0.2:230            Disciplinary Agency

The Supreme Court of New Mexico has ultimate and plenary authority with respect to the disciplining of lawyer and others who are subject to its discipline jurisdiction.  The discipline process, however, involves a number of other persons and entities whose functions are prescribed in the New Mexico Rules Annotated.  See NMRA 17-101 to NMRA 17-106.

The New Mexico Supreme Court has created a Disciplinary Board to review complaints, and to reprimand members of the bar for behavior that violates the Rules of Professional Conduct.  The Disciplinary Board, in turn, has established hearing committees and hearing officers which make recommendations to the Disciplinary Board.  The Disciplinary Board has also established reviewing officers; they are members of the Hearing Committee with the authority and duty to review, approve, modify, or disapprove dismissals of complaints docketed for formal investigation, and to offer informal admonitions proposed by Disciplinary Counsel.  The Disciplinary Counsel and Deputy Disciplinary Counsel are appointed by the Disciplinary Board and serve at the pleasure of the Board and under its supervision.

Disciplinary Board

To carry out its plenary discipline powers, the Supreme Court of New Mexico has established a Disciplinary Board.  According to NMRA 17-102, the Disciplinary Board has the power and duty to consider and investigate the conduct of any attorney within the jurisdiction of the Supreme Court, and may initiate an investigation on its own motion or may undertake the same upon complaint by any person.  The Board also has the power and duty to review the findings of fact, conclusions and recommendations of Hearing Committees, and to take action thereupon.  Furthermore, the Board can formally reprimand attorneys, and report any such reprimand to the Supreme Court, where it will be a matter of record.  The Board conducts an annual meeting, sponsored by the Supreme Court, and attended by the Board, members of the Supreme Court, the Hearing Committee, and the Disciplinary Counsel.  The purpose of this meeting is to review rules, discuss problems, establish performance criteria and discuss any other matters the board or court deems necessary. 

The Disciplinary Board consists of twelve (12) members.  NMRA 17-101.  Of these twelve (12) members, ten (10) are members of the New Mexico bar, one of whom is appointed by the president of the bar, and two (2) are non-lawyer public members.  A non-lawyer public member is a person who has never practiced law and has not graduated from law school.  Also, the non-lawyer public member may not be directly employed by a lawyer, or have any direct financial investment in the practice of law. 

The state is divided into disciplinary districts as follows: Central, Northern, Southern.  NMRA 17-102.  The Central district is composed of Bernalillo, Sandoval, Cibola, Valencia, and Socorro counties.  The Northern District consists of San Juan, McKinley, Rio Arriba, Santa Fe, Los Alamos, Taos, Colfax, San Miguel, Harding, Union, Guadalupe, Torrence, Quay, and Mora counties.  The Southern District is made up of De Baca, Curry, Roosevelt, Cháves, Eddy, Lea, Lincoln, Otero, DoZa Ana, Catron, Grant, Luna, Hidalgo, and Sierra Counties.  Each disciplinary district shall have at least one attorney member on the Board.  The term of office for each member on the disciplinary board is three (3) years, but no member can serve more than six (6) consecutive years. 

The Supreme Court designates one member of the Board to serve as chair, and one as vice-chair.  The chair of the Board from time to time designates a secretary who keeps permanent records of all plenary proceedings of the Board.  The chair of the Board, or the vice-chair in the chair’s absence, oversees the operations of the Disciplinary Counsel’s office, the several Hearing Committees and the review panels of the Board.  The chair is responsible for the maintenance of a docket or other control of all formal charges instituted, the expedition of the proceedings and the assembly and preservation of the record of all proceedings.  The chair also transmits or arranges for the transmission of all Board recommendations in disciplinary matters to the Supreme Court.  The chair reports to the Supreme Court any formal reprimands administered by order of the Board.  Also, the chair exercises the Board’s authority on its behalf in certain ministerial duties involving Hearing Committees and Disciplinary Counsel pursuant to any policies or procedures as adopted by the Supreme Court or the Board.

All proceedings before the Disciplinary Board shall be brought in the disciplinary district in which the respondent-attorney’s principal office is located, or if the respondent-attorney does not maintain a principal office in New Mexico, in the district in which any part of the conduct under investigation occurred. 

While it is not within the jurisdiction of the Disciplinary Board or the office of Disciplinary Counsel to regulate fees charged by attorneys, it is within their jurisdiction to enforce the Rules of Professional Conduct.  Matter of O’Brien, 130 N.M. 643, 29 P.3d 1044 (2001).

Hearing Officers and Committees

The Disciplinary Board provides for the organization of two or more Hearing Committees or the appointment of two or more Hearing Officers within each disciplinary district.  Each committee consists of three (3) members.  Hearing Officers are members of the New Mexico State Bar.  Members of the Hearing Committees may be members of the New Mexico State Bar, or “non-lawyer public members.”  Hearing Committees act only with a concurrence of a majority of their members.  Two (2) members of each committee must be members of the New Mexico State Bar, and two (2) members of a committee constitute a quorum. 

Hearing Officers and Committees have the power and the duty to conduct hearings into formal charges of misconduct, upon assignment by the chair of the Disciplinary Board.  They may also conduct hearings on motions for reinstatement and remission of deferred sanctions; and they may report to the Disciplinary Board their findings of fact, conclusions of law and recommendations, together with records of their proceedings.

Hearing Officers are not allowed to take part in any proceeding in which a judge or similar officer would be required to abstain.  A Hearing Officer may not personally represent a lawyer in any investigation or proceeding pursuant to the disciplinary rules while actively serving on the Hearing Committee in a pending proceeding.  Active service in a pending proceeding begins on the date the hearing officer receives notice of assignment to a committee and concludes on the date the committee submits its notice of findings.

Reviewing Officers

Any member of a Hearing Committee may serve as a Reviewing Officer.  A Reviewing Officer, upon the request of the Disciplinary Counsel or chair of the Board, shall have the authority and duty to review, approve, modify or disapprove dismissals of complaints docketed for formal investigation and offers of informal admonitions proposed by Disciplinary Counsel.  Any member of a Hearing Committee who participates as a Reviewing Officer during the investigation of an attorney shall not serve as a member of a Hearing Committee for any charges filed as a result of such investigation.  The identity of the Reviewing Officer involved in a particular investigation remains confidential at all times, including after the filing of formal disciplinary charges.  Upon request, the Reviewing Officer’s report (without identifying information) is available to the attorney being investigated. 

Disciplinary Counsel

NMRA 17-105 governs the appointment, powers, and duties of the Disciplinary Counsel.  The Disciplinary Board appoints a Disciplinary Counsel, subject to the approval of the Supreme Court.  The Counsel serves at the pleasure of the Board and under its supervision.  Subject to the approval of the Supreme Court, the Board fixes the compensation of the Counsel, if any, and promulgates policies for the orderly and efficient conduct of his duties. 

The Disciplinary Counsel has these powers: (1) to docket for formal investigation any complaint which sets forth reasonable grounds to believe that a violation of the Rules of Professional Conduct has occurred; (2) to investigate, or to refer for investigation to assistant disciplinary counsel or to an investigator, all matters involving alleged misconduct by an attorney subject to the jurisdiction of the Supreme Court, and (3) to dispose of all matters involving alleged misconduct by an attorney by: (a) dismissal of the complaint, (b) a letter of caution, (c) informal admonition, or (d) the filing of formal charges with the Disciplinary Board.  The Disciplinary Counsel also has the power to prosecute all disciplinary proceedings before Hearing Committees, the Disciplinary Board, and the Supreme Court, and to seek to resolve informally allegations which on their face would not, even if true, involve violations of the Rules of Professional Conduct but which are of concern to the complainant and could easily be corrected by the attorney.

The Disciplinary Counsel has these duties: (1) to receive or initiate in the first instance all complaints, and to maintain docket control, files and records upon any matter upon which investigation is initiated; (2) to appear at hearings conducted upon motions for reinstatement by suspended or disbarred attorneys; to cross-examine witnesses testifying in support of the motions and to present any evidence in opposition to reinstatement; (3) to maintain permanent records of all matters processed and the disposition thereof, and to act as the general administrative officer for the Disciplinary Board under its direction and supervision; (4) to file quarterly status reports with the Disciplinary Board indicating the receipt, processing, and status of all complaints; and (5) to keep all complaints and other disciplinary matters confidential.

The Disciplinary Board may appoint one or more experienced investigators to assist Disciplinary Counsel in the performance of their duties.  Full time salaried Disciplinary Counsel or assistant disciplinary counsel may not engage in the private practice of law.  With permission from the Disciplinary Board, however, full-time salaried counsel may speak, write, lecture, teach, and participate in other activities concerning the law, the legal system, and the administration of justice.

0.2:240            Disciplinary Process

Discipline Jurisdiction of the New Mexico Supreme Court

NMRA 17-201 establishes that the New Mexico Supreme Court and the Disciplinary Board have exclusive disciplinary jurisdiction over any attorney admitted to practice law in New Mexico, any attorney specially admitted to practice by a court in New Mexico, or any individual admitted to practice as an attorney in any other jurisdiction who engages in the practice of law within this state as house counsel to corporations or other entities, or as counsel for governmental agencies.   See also, e.g., § 36-2-1 NMSA 1978 (1991 Repl. Pamp.) (“supreme court of the state of New Mexico shall ... define and regulate the practice of law within the state...”)

Grounds for Discipline

According to § 36-2-18 NMSA 1978 (1991 Repl. Pamp.), an attorney may be disbarred or suspended by the Supreme Court for any of the following causes arising after his admission to practice: conviction of a felony or misdemeanor involving moral turpitude, wilful disobedience or violation of a court order, appearing as attorney “corruptly ... or without authority,” lending his name to be used as an attorney by a non-lawyer, failing or refusing to account for money of his client he acquires as attorney, and “any other act to which such a consequence is by law attached.”

NMRA 17-205 states that an act or omission by an attorney, individually or in concert with any other person, which violates the Rules of Professional Conduct or violates the provisions of a court rule, statute, or other law shall be grounds for discipline, whether or not the act or omission occurred in the course of the attorney-client relationship. 

According to NMRA 17-206, a violation of the Rules of Professional Conduct is grounds for: (1) disbarment by the Supreme Court; (2) suspension by the Supreme Court for a certain time with automatic reinstatement; (3) indefinite suspension by the Supreme Court with reinstatement upon application; (4) public censure by the Supreme Court; (5) formal reprimand by the Supreme Court; (6) informal admonition by Disciplinary Counsel without formal hearing; and/or (7) requirement by the Disciplinary Board that an attorney successfully pass the multi-state professional responsibility examination the next time it is given.

If the record suggests that the individual can still perform legal services without supervision, the Supreme Court may impose probation.  By imposing probation, the court allows the lawyer to continue to practice law while requiring him to meet certain conditions that will insure the protection of the public and assist him in understanding and meeting his ethical obligations.  These conditions are not mere guidelines, but are orders of the court which are to be obeyed.  Matter of Rawson, 104 N.M. 387, 722 P.2d 638 (1986).  Failure by an attorney on probation to comply with any such terms or conditions is subject to enforcement under the contempt powers of the Supreme Court.  If the Supreme Court finds good cause to enter an order to show cause why the attorney should not be held in contempt, it may direct the attorney to appear before the court to show cause why additional discipline should not be imposed, or if factual allegations are in dispute, may remand the matter the Disciplinary Board for an expedited evidentiary hearing.  If held in contempt, the attorney may be censured, fined, suspended or disbarred. 

NMRA 17-207 states that in addition to probation, an attorney may be summarily suspended, upon recommendation of the Disciplinary Board.  Summary suspension is proper in the following situations: (1) upon the filing with the Supreme Court of a certified copy of a judgment finding an attorney guilty of a felony or other serious crime, (2) upon the Disciplinary Board demonstrating by certificate or otherwise that an attorney has been convicted of or has pleaded guilty or no contest to a felony or serious crime, (3) upon filing with the Supreme Court of an order or judgment declaring the attorney to be incompetent or incapacitated, or unable to defend himself, (4) upon the Disciplinary Board demonstrating by certificate or otherwise that an attorney is incapacitated from continuing to practice law or to defend himself, or (5) upon the filing in the Supreme Court and service upon an attorney by Chief Disciplinary Counsel of a petition which sets forth facts demonstrating that the continued practice of law by an attorney will result in a substantial probability of harm, loss or damage to the public, and that (a) the attorney is under investigation by Disciplinary Counsel for an alleged violation or the Rules of Professional Conduct or a violation of a court rule, statute or other law, (b) formal disciplinary charges have been filed against the attorney, or (c) a criminal complaint, information or indictment has been filed against the attorney.

An attorney summarily suspended may be reinstated immediately upon a showing that if the suspension was for conviction of a crime, the underlying conviction for the felony or other serious crime has been reversed and no further proceedings have been ordered by the reviewing court.  Also, the attorney may be immediately reinstated if the suspension was imposed because of incompetency or incapacity, and the Disciplinary Board certifies that the incapacity or incompetency no longer exists.  An attorney may also be immediately reinstated if the suspension was imposed on a showing that the continued practice of law by the attorney would result in a substantial probability of harm, loss or other damage to the public, and the Disciplinary Board certifies that said probability no longer exists.  Reinstatement after summary suspension does not terminate any formal disciplinary proceeding then pending against the attorney, the disposition of which is to be determined by the Hearing Committee and the Disciplinary Board.

NMRA 17-211 provides for discipline by consent when an attorney against whom formal charges have been made tenders to Disciplinary Counsel an agreement admitting sufficient facts exist to permit a finding that the allegations are true, or declaring his intention not to contest the allegations.  The Disciplinary Board may accept or reject the agreement.  However, the Board may not accept an agreement without first determining from the attorney that he understands the charges against him, he understands the proposed disposition of the proceedings, he understands that if the agreement is accepted he is waiving the right to hearing before a Hearing Committee and the Board and is waiving an appeal to the Supreme Court, and the admission or provisions of the consent decree are voluntary and not the result of force, threats, or promises.

An attorney who has been disciplined may be required to make restitution, and also to reimburse the client’s security fund of the State Bar of New Mexico for any expenditure that is made arising out of the attorney’s misconduct.  Any order of restitution does not preclude damages being awarded by a court of competent jurisdiction.  All forms of discipline, including disbarments, indefinite suspensions, and public censures are to be published in the New Mexico Reports and the Bar Bulletin, and are to be filed in the Supreme Court clerk’s office.  Formal reprimands by the Board are also to be published in the Bar Bulletin and to be filed in the Supreme Court clerk’s office.

A disbarred attorney may file a motion for reinstatement to the Supreme Court.  The motion may not be filed before three (3) years from the effective date of disbarment.  An attorney who has been suspended for a specific period of time shall be automatically reinstated at the expiration of the period specified in the order of suspension. 

An attorney who has been suspended for an indefinite period of time may, at any time after complying with the conditions of reinstatement, file with the clerk of the Supreme Court a petition for reinstatement attaching thereto a copy of the order of suspension and an affidavit of compliance, where appropriate, stating that the attorney has complied with previously-imposed conditions of reinstatement.  An attorney who has been suspended indefinitely due to incapacity or incompetency may move for reinstatement upon clear and convincing evidence that the disability has been terminated and the attorney is once again fit to resume the practice of law; however, if such a motion is denied, another may not be made for a year, unless a different period is specified by the Supreme Court.  The filing of an application for reinstatement on grounds of incompetency or incapacity, constitutes a waiver of any psychotherapist-patient privilege with respect to the treatment of the attorney during the period of the attorney’s disability.  In the application for reinstatement, the attorney must disclose the name and address of every treating psychiatrist, psychologist, physician, hospital or other institution.  The attorney must also furnish to the Supreme Court written consent for each psychologist, psychiatrist, physician, hospital or other institution to divulge such information and records as requested by court-appointed medical experts. 

Membership in the bar requires more than just the mere absence of intent to do wrong; otherwise, a high standard of conduct could not be maintained.  See Matter of Nelson, 79 N.M. 779, 450 P.2d 188 (1969).  However, there is a balance in that moral turpitude is not a necessary element to support discipline, nor is it synonymous with “conduct contrary to honesty, justice or good morals.”  See Matter of Morris, 74 N.M. 679, 397 P.2d 475 (1964).

The court’s primary concern in all cases involving attorney discipline is to assure that the public is protected from dishonest attorneys, whatever the explanation for the dishonesty.  Matter of Stewart, 104 N.M. 337, 721 P.2d 405 (1986).

By way of example regarding grounds for discipline, an attorney’s apparent failure to complete several cases, to take steps to ensure that the interests of her clients were protected upon her withdrawal from their cases, and to promptly refund any unearned portions of fees paid in advance, as well as her lack of cooperation with the disciplinary counsel, constituted conduct violative of the professional rules warranting an indefinite suspension from the practice of law.  Matter of Roth, 105 N.M. 255, 731 P.2d 951 (1987).

Regarding mitigating factors in disciplinary actions, see, e.g., Matter of Martin, 127 N.M. 321, 980 P.2d 646 (1999) (neither mental nor physical infirmity provides a defense to charges of professional misconduct); Matter of Hyde, 124 N.M. 363, 950 P.2d 806 (1997) (pressures of practice of law provide neither an excuse nor a mitigating factor for deceit; dishonest conduct by lawyers will not be tolerated); Matter of Smith, 858 P.2d 857, 115 N.M. 769 (1993) (mental disability of attorney can be considered in mitigation of disciplinary action only if attorney’s recovery from condition can be demonstrated by meaningful and sustained period of successful rehabilitation; attorney’s chronic depression cannot be considered as mitigating factor in imposing appropriate discipline for pattern of neglecting client matters and failing to communicate with clients, where attorney admits that he still suffers from mental disability and that his counselor concludes that practicing law aggravates depression; mental disability, such as depression, can only mitigate discipline of attorney if it can be demonstrated that condition is no longer likely to result in harm to public); Matter of Tapia, 110 N.M. 693, 799 P.2d 129 (1990), reinstatement granted by 114 N.M. 37, 834 P.2d 414 (where there is some evidence that factors over which attorney had no control may have contributed to misconduct or that rehabilitation could be effected, court will hesitate to impose ultimate sanction of disbarment).

In Matter of Mikus, 2006-NMSC-012, 139 N.M. 266, 131 P.3d 653, the Supreme Court affirmed disciplinary suspension against an attorney who falsely stated on his bar application that he had never been charged, arrested, or questioned regarding a violation of the law.  The Court found a misrepresentation on a bar application can be grounds for discipline and intentional failure to supplement an application violated the Professional Rules of Conduct.  Furthermore, as a matter of first impression, the Court held that pre-admission conduct could form the basis for attorney discipline even when the acts are not discovered until after bar passage.  Finally, the Court rejected the attorney’s argument for the creation of an exception because the conduct giving rise to his criminal arrest was unrelated to dishonesty.  In reaching its conclusion, the Court reasoned that failing to supplement a bar application with details of an arrest was dishonest and therefore, did not warrant an exception.

The Supreme Court may discipline attorneys even when there has been no criminal prosecution or conviction, and any attempt by the legislature to provide otherwise would be unconstitutional.

Matter of Treinen, 2006-NMSC-013, 139 N.M. 318, 131 P.3d 1282.  The Supreme Court reviewed a disciplinary recommendation from the Disciplinary Board for an attorney who was given conditional discharge after entering a plea of no contest to one count of misdemeanor battery.  The Court rejected an argument that conditional discharge precludes the Court from imposing discipline against an attorney in violation of the New Mexico Rules of Professional Conduct. 

In general, attorneys on probation are not permitted to practice law.  However, the Court found a “very limited” exception applied in Matter of Treinen, supra.  A court will review each case on its merits and will not automatically offer a deferred sanction for every conditional discharge.  Furthermore, for an exception to apply, the record must be clear that the continued practice of law by the respondent-attorney will in no way endanger either the public or the reputation of the profession.  Relevant factors in favor of granting the exception in this case included: 1) the fact that prohibiting the attorney’s practice of law would harm the public because the attorney provided highly needed services to the poor and disadvantaged; 2) the attorney was highly unlikely to repeat any violent conduct; 3) the attorney took the initiative to seek, and successfully complete, counseling and treatment to address his behavioral problems; 4) the attorney was sincerely remorseful and took full responsibility for his actions; 5) the attorney was cooperative throughout the proceedings; 6) the attorney had no previous history of disciplinary complaints or criminal conduct; and 7) the trial judge and Disciplinary Board recommended against suspension.

Disciplinary Process

According to NMR 16-803(D), “a lawyer shall give full cooperation and assistance to the highest court of the state and to the disciplinary board, hearing committees and disciplinary counsel in discharging their respective functions and duties with respect to discipline and disciplinary procedures.” Also, attorneys in New Mexico are guided by A Creed of Professionalism of the New Mexico Bench and Bar, which provides “I will willingly participate in the disciplinary process.”

For purposes of a disciplinary hearing, the Disciplinary Board is to hear only such evidence as would be admissible in the trial of a civil case, although it may receive and consider any evidence it believes to be cogent and credible in the exercise of sound judicial discretion.  The Hearing Committee chair presides and makes rulings upon questions of the admissibility of evidence and the conduct of proceedings. 

Except in cases involving theft or misappropriation, conviction of a crime, or a knowing act of concealment, the statute of limitations is four (4) years from the time the complainant knew or should have known the facts on which the complaint is filed. 

Investigations and investigatory hearings conducted by or under the direction of Disciplinary Counsel are entirely confidential, unless they are matters of public record.  NMRA 17-304.  Information relating to disciplinary proceedings may be released by Disciplinary Counsel prior to filing formal charges, as follows: (1) where investigation reasonably causes Disciplinary Counsel to believe in good faith that a crime may have been committed by an attorney, then the name of the subject, the general nature of the possible crime, and the relevant facts are to be made available to an appropriate prosecuting authority; (2) if the respondent-attorney has filed with the office of Disciplinary Counsel a written waiver of confidentiality, or (3) upon written request from a special Client Security Fund Committee, such information as may assist the committee in determining the validity and worthiness of a specific claim. 

NMRA 17-306 states that Disciplinary Counsel may serve interrogatories on the respondent-attorney.  Contemporaneously, Disciplinary Counsel may also request or invite the respondent-attorney to appear before a Reviewing Officer and to answer questions related to the allegations under investigation by Disciplinary Counsel.  The respondent-attorney has the rights to counsel, to make opening and closing statements, and to introduce documentary evidence.  The chair of the Disciplinary Board may issue subpoenas for the production of records and other documents of the respondent-attorney, or any other witness necessary to the investigation, as well as to require the presence and testimony of any witnesses or the respondent-attorney oath.  If it appears that the respondent-attorney or a witness may alter, destroy, secrete or remove from the jurisdiction of New Mexico any evidence relevant or material to an investigation, Disciplinary Counsel, if authorized by the Disciplinary Board, may petition the Supreme Court for an order to compel the attendance of witnesses before a Hearing Committee and the production before a Hearing Committee of relevant evidence.

The Chair of a Hearing Committee may issue subpoenas requiring the presence of a witness at a formal hearing, or commanding the person to whom it is directed to produce at a formal hearing before a Hearing Committee the books, papers, documents, or tangible things designated therein. 

NMRA 17-307 provides for investigation of complaints.  Investigations are initiated by the chief Disciplinary Counsel, deputy disciplinary counsel, or assistant counsel designated by the chair of the Disciplinary Board.  Investigations are conducted by Disciplinary Counsel staff attorneys or are referred to an appropriate assistant counsel or commissioned investigator for report and recommendation. 

Investigations, examinations, and verifications are conducted so as to preserve the private and confidential nature of the lawyer’s records.  An investigation may be dismissed if the complaint does not set forth allegations which, if true, state reasonable cause to believe that the respondent-attorney has violated the Rules of Professional Conduct.  If the complaint is not dismissed, however, the Disciplinary Counsel is to prepare an investigation report that includes a summary statement of the facts, a statement of the opposing positions, and the investigator’s recommendations for further handling of the situation.  Next, the Disciplinary Counsel submits this report to the Chair of the Disciplinary Board, who either approves that it be filed as formal charges, or recommends an alternate course of action. 

If an informal written admonition letter has been recommended by the Disciplinary Board, the respondent-attorney may either accept or reject it.  If the respondent-attorney rejects it, the Disciplinary Counsel is to file a formal specification of the charges.  In the charges, counsel is to indicate that they have been filed because an offer of informal admonition was declined. 

If charges have been filed, the respondent-attorney may review and answer them.  The answer must contain a brief statement reflecting admissions, denials, and any other relevant and material matters that the attorney wishes to convey, any mitigating factor in connection with any admitted violations, and the names and addresses of the witnesses that the respondent plans to call in his defense.  Failure by the respondent-attorney to answer within twenty (20) days constitutes an admission. 

NMRA 17-313 sets out procedures for disciplinary hearings.  Upon a written showing of need, either party can apply to the Chair of the Hearing Committee for permission to conduct discovery proceedings prior to the formal hearing.  Within thirty (30) days after the time for filing an answer, the Chair of the Hearing Committee is to set a time and date for formal hearing on the charges.  The formal hearing will be set for not longer than one hundred twenty (120) days from the time for filing an answer.  The date of the hearing may be extended on a showing of good cause. 

The formal hearing is adversarial in nature.  Witnesses are sworn in, and the Disciplinary Counsel presents evidence to support the allegations in the formal charges.  The Committee Chair presides and makes rulings on questions of the admissibility of evidence and the conduct of the proceedings.  The committee members may ask questions of witnesses, including the respondent-attorney.  The complaining witness(es), the respondent-attorney and Disciplinary Counsel may be present throughout the entire hearing.  Other witnesses may be excluded except when testifying.  At the end of the hearing, each side may present proposed findings of fact and conclusions of law, after which the Hearing Committee will consider the case and submit its recommendation within thirty (30) days to the Disciplinary Board.  

Upon receipt of the findings, conclusions and recommendations of the Hearing Committee, the Chair of the Disciplinary Board is to request oral argument by or submission of briefs from each side.  The Board will not consider any evidence which was not presented at the hearing before the Committee.  Within thirty (30) days following the submission of briefs or oral argument or the receipt of the Hearing Committee’s findings and recommendations, the Disciplinary Board is to render its decision.

Once the Disciplinary Board renders its decision, each side had three (3) methods to seek review by the Supreme Court.  If the decision recommends public censure by the Supreme Court, suspension, or disbarment, a respondent-attorney may request a hearing before the Supreme Court, which may or may not be granted.  If the decision is to assess costs, to impose a formal public reprimand, or to impose probation, the respondent-attorney may petition the Supreme Court for a hearing within fifteen (15) days of service of the decision.  If the decision is to dismiss the complaint, petition to the Supreme Court for a hearing may be made within fifteen (15) days, and the Court may or may not grant it.

Formal proceedings are conducted before the Hearing Committee or the Disciplinary Board and are open to the public.  Complainants are advised as to the status of the investigation every six (6) months and shall be immediately advised of the final disposition of their complaints.

Numerous reported cases involve the lawyer’s duty to cooperate with disciplinary process.  For example, in Matter of Romero, 130 N.M. 190, 22 P.3d 215 (2001), it was held that a lawyer’s failure to respond to inquiries from the office of Disciplinary Counsel may warrant discipline, regardless of whether there is a finding of misconduct with respect to the underlying matter that caused the office to make its inquiries.  Thus, an attorney cannot avoid formal disciplinary proceedings by failing to respond in a substantive manner to inquiries from the office of disciplinary counsel.  See also, e.g., Matter of C’De Baca, 109 N.M. 151, 782 P.2d 1348 (1989) (attorney failed to act responsibly when he knowingly made a false statement to the hearing committee when he stated that a former client’s judgment against him in a civil suit for debt and money due, conspiracy and fraud, did not involve a finding of fraud); Matter of Carrasco, 106 N.M. 294, 742 P.2d 506 (1987) (when an attorney failed to file an answer or appear at the proceedings before a hearing committee, he did not request a hearing before the Disciplinary Board although advised of his right to do so, and he failed to appear before the Supreme Court, such conduct violated the attorney’s duties); and Matter of Martínez, 104 N.M. 152, 717 P.2d 1121 (1986) (act of ignoring the inquiries of Disciplinary Counsel concerning allegations of misconduct is a violation of the rules). 

Several cases address the issue of burden of proof in the disciplinary process.  For instance, in Van Orman v. Nelson, 78 N.M. 11, 427 P.2d 896 (1967), rev’d on other grounds, 80 N.M. 119, 452 P.2d 188 (1969), it was held that with respect to transactions between attorney and client involving the acquisition of property from the client, a heavy burden is imposed upon the attorney to establish the absolute fairness of the transactions.  More broadly, the court held in Matter of Quintana, 130 N.M. 627, 29 P.3d 527 (2001) that the disbarred or suspended attorney who seeks to be reinstated bears a heavy burden and must demonstrate not only by words but also by deeds that he or she can undertake the practice of law without endangering the public or the reputation of the profession.  See also Matter of Romero, 130 N.M. 190, 22 P.3d 215 (2001) (suspended lawyer seeking reinstatement bears the burden to prove by clear and convincing evidence that she has satisfied all procedures and criteria stated in Rules Governing Discipline and has satisfied the conditions of the order of discipline entered by the Supreme Court).

In Matter of Rawson, 113 N.M. 758, 833 P.2d 235 (1992), it was recognized that a lawyer may not refuse to disclose client trust records to the Disciplinary Board on the basis of confidentiality of client information stated in NMR 16-106.

The Court clarified the proper standard of review for Disciplinary Board matters in Matter of Bristol, 2006-NMSC-041, 140 N.M. 317, 142 P.3d 905.  The hearing committee is the only entity capable of taking evidence during a proceeding and must be accorded deference with regard to matters of weight and credibility.  Accordingly, evidence should be viewed in the light most favorable to the hearing committee’s decision and all conflicts and reasonable inferences should be resolved in favor of the decision reached by the hearing committee.  Legal conclusions and recommendations for discipline, however, are properly reviewed under the de novo standard by both the hearing panel and the reviewing court.

0.2:245            Mandatory Disbarment Upon Conviction of a Crime Involving Moral Turpitude

According to §  36-2-19 NMSA 1978 (1991 Repl. Pamp.), the Supreme Court “must enter an order disbarring” an attorney who has been convicted “of a felony or of a misdemeanor involving moral turpitude.”  See also § 36-2-18(A) NMSA 1978 (1991 Repl. Pamp.) (stating a lawyer “may be” disbarred or suspended for his conviction of a crime “involving moral turpitude in which case the record of conviction is conclusive”); NMR 16-804; and NMRA 17-207.

Whether the misconduct with which a person is charged, is a crime involving moral turpitude or, if a crime, whether it is malum prohibitum or malum in se or, for that matter whether the act is a felony or misdemeanor, is not the issue.  The true question in considering disbarment is whether the act to which respondent pleaded guilty was “contrary to honesty, justice or good morals.”  Matter of Morris, 74 N.M. 679, 397 P.2d 475 (1964) (member of bar was guilty of crime of involuntary manslaughter resulting from driving motor vehicle under the influence of intoxicating liquor, and such offense was an act contrary to honesty, justice, or good morals sufficient to support a suspension from practice).

0.2:250            Sanctions in Judicial Proceedings

The courts of New Mexico have inherent authority to impose sanctions upon attorneys in judicial proceedings for improper conduct, including conduct detrimental to the court’s ability to control its docket and proceedings before it.  See generally State ex rel. N.M. State Highway & Transp. Dep’t v. Baca, 120 N.M. 1, 896 P.2d 1148 (1995); and Matter of Jade G, 130 N.M. 687, 30 P.3d 376 (Ct. App. 2001).  Sanctions in judicial proceedings are also discussed infra, e.g., in section 3.1:300 et seq.

While it is not the province of the district court to sanction attorneys for breaching ethical rules, it is within the court’s discretion in an equitable proceeding to vindicate the public policy evidenced by those rules.  U.S. v. 36.06 Acres of Land, 70 F. Supp.2d 1272 (D.N.M. 1999).

0.2:260            Criminal and Civil Liability

A lawyer may, of course, be subject to criminal liability if that lawyer’s conduct violates the proscriptions of a criminal statute.  In addition, NMRA 16-102 states that a lawyer shall not engage, or counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent or which misleads the court, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning, or application of law.  When a lawyer knows that a client expects assistance not permitted by the Rules of Professional Conduct or other law, the lawyer should consult with the client regarding the relevant limitations on the lawyer’s conduct.  

An attorney’s violation of a Rule of Professional Conduct should not give rise to a private cause of action, or otherwise constitute a basis for civil liability.  NMR Scope.  The NMR Preamble discusses in greater detail how the Rules of Professional Conduct properly relate to proceedings not directly oriented toward attorney discipline.

0.2:270            Federal Courts and Agencies

The state of New Mexico comprises a single federal judicial district the District of New Mexico.  Generally speaking, admission to, and continuing membership in, the bar of the United States District Court for the District of New Mexico is limited to members in good standing in the State Bar of New Mexico.

An attorney residing outside the District of New Mexico may participate in an action in the District if the attorney is a member in good standing of the bar of another state and associates with a resident member of the Federal Bar, or if the attorney applies to practice in the District.  DNM LR-Civ 83.3.

0.2:280            Ethics Rules Applied in Federal Courts in New Mexico

The Rules of Professional Conduct adopted by the Supreme Court of the State of New Mexico apply to practice in the United States District Court for the District of New Mexico, except as otherwise provided by local rule or by court order.  DNM  LR-Civ 83.9.  Lawyers appearing in the federal court in New Mexico must comply with … A Creed of Professionalism of the New Mexico Bench and BarId.

0.3:300            Organization of This Library and the Model Rules

This narrative utilizes the outline for state narratives prepared for the American Legal Ethics Library.  That outline in turn relies heavily on the organization of the Model Rules of Professional Conduct, which is essentially as follows:

Client-Lawyer Relationship NMR 16-101 to 16-116
Counselor NMR 16-201 to 16-203
Advocate NMR 16-300 to 16-309
Transactions with Persons Other than ClientsNMR 16-401 to 16-404
Law Firms and AssociationsNMR 16-501 to 16-506
Public Service NMR 16-601 to 16-604
Information About Legal Services NMR 16-701 to 16-707
Maintaining the Integrity of the Profession NMR 16-801 to 16-805

0.4:400            Abbreviations, References and Terminology

Definitions for purposes of the New Mexico Rules of Professional Conduct are set forth in NMR 16-100 entitled “Terminology.”  Prior to the 2008 amendments they were placed with the Preamble and Scope, but setting them off as a separate rule enhances accessibility and convenience for the user.

0.4:410            “Belief” or “Believe”

“Denotes that the person involved actually supposed the fact in question to be true.  A person’s belief may be inferred from the circumstances.”  NMR 16-100(A).

0.4:420            “Consults” or “Consultation”

No definition is given in NMR 16-100.

0.4:430            “Firm” or “Law Firm”

“Denotes a lawyer or lawyers in a law partnership, professional corporation, sole proprietorship, or other association authorized to practice law; or lawyers employed in the legal department of a corporation or other organization, and lawyers employed in a legal services organization.”   NMR 16-100(C).

Note that whether two or more lawyers constitute a firm within this definition can depend on the specific facts.  For example, two practitioners who share office space and occasionally consult or assist each other ordinarily would not be regarded as constituting a firm.  However, if they present themselves to the public in a way suggesting that they are a firm or conduct themselves as a firm, they should be regarded as a firm for the purposes of the Rules.  The terms of any formal agreement between associated lawyers are relevant in determining whether they are a firm, as is the fact that they have mutual access to confidential information concerning the clients they serve.  Furthermore, it is relevant in doubtful cases to consider the underlying purpose of the rule that is involved.  A group of lawyers could be regarded as a firm for the purposes of the rule that the same lawyer should not represent opposing parties in litigation, while it might not be so regarded for the purposes of the rule that the information acquired by one lawyer is attributed to another.  NMR 16-100(C) and Comments [3] to [5].

With respect to the law department of an organization, there is ordinarily no question that the members of the department constitute a firm within the meaning of the Rules of Professional Conduct.  However, there can be uncertainty as to the identity of the client.  For example, it may not be clear whether the law department of a corporation represents a subsidiary or an affiliated corporation, as well as the corporation by which the members of the department are directly employed.  A similar question can arise concerning an unincorporated association and its local affiliates.  Id.

Similar questions can also arise with respect to lawyers in legal aid.  Lawyers employed in the same unit of a legal service organization constitute a firm, but not necessarily those employed in separate units.  As in the case of independent practitioners, whether the lawyers should be treated as associated with each other depends on the specific facts of the situation.  Id.

0.4:440            “Fraud” or “Fraudulent”

“Denotes conduct that is fraudulent under the substantive or procedural law of the applicable jurisdiction and has a purpose to deceive.”  NMR 16-100(D) and Comment [6].

0.4:450            “Knowingly,” “Known,” or “Knows”

“Denotes actual knowledge of the fact in question.  A person’s knowledge may be inferred from circumstances.”  NMR 16-100(F).

0.4:460            “Partner”

“Denotes a member of a partnership, a shareholder in a law firm organized as a professional corporation or a member of an association authorized to practice law.”  NMR 16-100(G).

0.4:470            “Reasonable” or “Reasonably”

“When used in relation to conduct by a lawyer denotes the conduct of a reasonably prudent and competent lawyer.”  NMR 16-100(H).

0.4:480            “Reasonable belief” or “Reasonably believes”

“When used in reference to a lawyer denotes that the lawyer believes the matter in question and that the circumstances are such that the belief is reasonable.”  NMR 16-100(I).

0.4:490            “Substantial”

“When used in reference to a degree or extent denotes a material matter of clear and weighty importance.”  NMR 16-100(L).

0.4:500            Additional Definitions in New Mexico

“Confirmed in writing” is used in NMR in relation to “informed consent,” and it denotes a consent “that is given in writing by the person or a writing that a lawyer promptly transmits to the person confirming an oral informed consent.”  Further, if feasible any informed consent confirmed in writing must be obtained or transmitted at the time the person gives the informed consent; otherwise, the informed consent must be confirmed in writing within a reasonable time thereafter.  NMR 16-100(B) and Comment [2].

“Informed consent” refers to “the agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.”  NMR 16-100(E) and Comments [7] and [8]. 

“Reasonably should know” when used in reference to a lawyer “denotes that a lawyer of reasonable prudence and competence would ascertain the matter in question.”  NMR 16-100(J).

“Screened” means “the isolation of a lawyer from any participation in a matter through the timely imposition of procedures within a firm that are reasonably adequate under the circumstances to protect information that the isolated lawyer is obligated to protect under these rules or other law.”  NMR 16-100(K) and Comments [9] to [11].

“Tribunal” denotes “a court, arbitrator in a binding arbitration proceeding or a legislative body, administrative agency or other body acting in an adjudicative capacity.  A legislative body, administrative agency or other body acts in an adjudicative capacity when a neutral official, after the presentation of evidence or legal argument by a party or parties, will render a binding legal judgment directly affecting a party’s interest in a particular matter.”  NMR 16-100(M).

“Writing” or “written” denotes “a tangible or electronic record of a communication or representation, including handwriting, typewriting, printing, photostating, photography, audio or video recording and e-mail.  A signed writing includes an electronic sound, symbol or process attached to or logically associated with a writing and executed or adopted by a person with the intent to sign the writing.”  NMR 16-100(N).