The Disciplinary Process
For additional information about this process also see For the Public – Resources & FAQ
These materials do not establish, report, or create a definitive standard of care for attorneys. The materials are not intended to be a complete analysis of the topics and should not be construed as providing legal advice. Attorneys should conduct their own appropriate legal research and exercise their own independent business judgment in using these materials.
Complaint is Received
Learn More About Complaints
- A complaint can be initiated by anyone, including Chief Disciplinary Counsel (Rule 17-307).
- All complaints must be in writing and cannot be submitted anonymously.
- The Board has no authority to look into complaints about judges.
- The Judicial Standards Commission is the agency designated to investigate complaints about judges or justices in the State of New Mexico. The Commission requires the use of specific forms which may be obtained by contacting them at (505) 222-9353 or by making a written request to P.O.Box. 27248, Albuquerque, New Mexico 87125-7248.
If Jurisdiction is Determined, a Copy of the Complaint is Sent to the Attorney for Their Response
Learn More About Responses
- Attorneys are given two (2) weeks to respond to the complaint. Usually, reasonable requests for extension are granted upon timely request to the Office of Disciplinary Counsel.
- The attorney must respond to the complaint (Rules 16- 801(B) and 16-803(D)) and may “reveal information relating to the representations of a client to the extent the lawyer reasonably believes necessary to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client … or to respond to allegations in any proceeding concerning the lawyer’s representation of the client.” (Rule 16- 106(B)(5))
- The attorney’s response to the complaint is confidential and will not be revealed to the complainant until, and if the matter becomes part of the record in a formal disciplinary proceeding. (Rule 17-304)
- In almost all circumstances, even when the complaint is unclear or possibly outside the jurisdiction of the Disciplinary Board, the lawyer will be contacted for a response.
- When a complaint concerns the new overdraft procedures, Rule 17-204, the attorney will be asked to respond, but the report of the overdraft will not be treated as a disciplinary complaint unless and until the attorney either does not cooperate with the Office of Disciplinary Counsel or the attorney’s explanation for the overdraft may evidence some violation of the Rules of Professional Conduct.
The Complaint is Dismissed or Further Investigation is Conducted
Learn More About Dismissals and Investigations
- Often upon receipt of a response, the complaint is dismissed with a letter to the complainant and the file is closed.
- Complaints can be dismissed because no allegations which if true state reasonable cause to act.
- If the initial response is inadequate to resolve the complaint the Office of Disciplinary Counsel can request additional information, seek information from additional sources, contact the complainant, and/or do additional research. Many times, after this additional investigation the complaint is dismissed with a letter to the complainant and the file is closed.
- If the attorney does not provide a response, the matter must be docketed for a formal investigation and formal charges will be filed regardless of the merits of the underlying complaint. (Rule 17-307)
- The fact that a complainant may withdraw the complaint or that the substance of the complaint is similar to pending civil or criminal litigation may, but will not necessarily, justify dismissal of the complaint. (Rule 17-305)
- Investigation time varies greatly depending on severity of allegations. Complainant is notified of progress no less than every 6 months.
Formal Investigation and Docketed Cases
Learn More About Formal Investigation and Docketed Cases
- Once a case is docketed for formal investigation, it may only be dismissed by disciplinary counsel with the approval of a reviewing officer.
- During the investigation of a docketed case, records may be subpoenaed.
- The dismissal of a docketed case may include a Letter of Caution. A Letter of Caution is not a form of discipline and does not involve a finding of misconduct. It is intended to alert the attorney to a problem that, if it persists, could result in a finding of misconduct. Because a Letter of Caution is constructive criticism for the attorney (and not discipline), the complainant is not told of the issuance of the Letter of Caution, but still receives a letter advising that the complaint was dismissed.
- If misconduct can be proven, a docketed case may be resolved by the issuance of an Informal Admonition by disciplinary counsel with the concurrence of a reviewing officer. The complainant is informed of the issuance of such an admonition and is told that this is a private sanction. The complainant is requested to respect the attorney’s right to privacy in the matter by not revealing the disposition. (Rule 17-206(A)(6))
Formal Disciplinary Charges
Learn More About Formal Disciplinary Charges
- In cases where there is evidence of more serious ethical violations or when the attorney fails to respond to the complaint, formal disciplinary charges are filed. The case then becomes a matter of public record, and all pleadings filed may be viewed by appointment. (Rule 17-304)
- When charges are filed, a hearing committee is appointed. The hearing committee is usually comprised of two attorneys and one non-attorney.
- The Respondent attorney is served with the charges and has twenty (20) days to answer the charges unless an extension is granted by the hearing committee.
- If consent to discipline (Rule 17-211) is not proposed and accepted by the committee, a hearing will be scheduled and held within one-hundred-twenty (120) days. Hearings are open to the public.
- After the hearing, the hearing committee makes findings of fact, conclusions of law, and a recommendation regarding what discipline, if any, is appropriate.
- After the hearing committee makes its recommendation, a panel of the disciplinary board
members are appointed to review the record of the proceeding and to accept or reject the hearing committee’s findings and recommendation.
- Either the Respondent attorney or disciplinary counsel may request oral argument before the board panel.
- Once the board panel has reviewed the record and made its ruling on the hearing committee’s recommendation, the matter is forwarded to the Supreme Court of New Mexico.
- The Respondent attorney may request a hearing before the Supreme Court.
- The Supreme Court has ultimate authority over the discipline imposed and may accept, reject, or modify the Disciplinary Board’s recommendation.
Learn More About Formal Discipline
- Formal discipline is designed to protect the public from the likelihood of future misconduct by the attorney and is not intended as a remedy for the complainant.
- Formal discipline is a matter of public record and can be disclosed by the Disciplinary Board if an inquiry regarding an attorney’s disciplinary history is made.
- The determination of what formal discipline is appropriate is determined in part by the ABA Standards for Imposing Lawyer Sanctions (1992). (See e.g., In re Chavez, 2000-NMSC-015, 129 NM 35, 1 P.3d 417)
- A Formal Reprimand (Rule 17-206(A)(5)) is a sanction that can be issued by the Disciplinary Board. The Formal Reprimand is read to the Respondent by the Chair of the Disciplinary Board before the entire Board and is published in the State Bar Bulletin, a publication sent weekly to all members of the State Bar of NewMexico and other subscribers.
- Probation (Rule 17-206(B)) may be imposed by the Disciplinary Board or the Supreme Court and can be the sole discipline. Probation may also be imposed with other disciplines. Probation may be supervised or unsupervised.
- Public Censure (Rule 17-206(A)(4)) is a written reprimand imposed by the Supreme Court of New Mexico. Public censure is published in the State Bar Bulletin and in the New Mexico Reports and Pacific Reporter, which are permanent reports of legal decisions.
- Suspension (Rule 17-206(A)(2)) may be imposed by the Supreme Court of New Mexico.
- An attorney’s license to practice law may be suspended for a specified period of time. When this is done, the attorney is automatically reinstated at the end of the period of suspension, unless objections are filed by disciplinary counsel.
- An attorney’s license to practice law may be suspended indefinitely. This type of suspension usually requires an attorney to meet specific requirements prior to reinstatement and to petition for reinstatement. The attorney may only be reinstated by showing that all requirements have been met and that the attorney is fit to resume the practice of law.
- An attorney may be summarily suspended (Rule 17-207) when the lawyer has been convicted of a felony or other serious crime, when a court has entered a judgment that the attorney is incompetent or incapacitated, or if formal disciplinary charges have been filed and it can be shown that a danger of substantial harm to the public will exist if the attorney continues to practice law.
- Disbarment (Rule 17-206(A)(l)) may be imposed by the Supreme Court of New Mexico. In New Mexico, disbarment is permanent, and an attorney may not seek reinstatement.
- In cases where formal disciplinary charges are pending, a Respondent may resign in lieu of discipline (Rule 17-209). In such cases, the Respondent must get permission from the Supreme Court and admit the truth of the allegations in the proceeding. This does not mean that the attorney then escapes the consequences of unethical behavior. Resignation in lieu of discipline is equivalent to disbarment, and the attorney would have to go through the same reinstatement process as if disbarred in order to be able to practice law again.