A.Disability inactive status.(1) In addition to or in lieu of the provisions of Rule 17-207 NMRA, where it is shown that an attorney is unable to fulfill professional responsibilities competently because of physical, mental, or emotional infirmity, impairment, incapacity, or illness, the Disciplinary Board may petition the Supreme Court to place the attorney on disability inactive status. If the Court places an attorney on disability inactive status the attorney shall not engage in the practice of law.(2) Proceedings instituted against an attorney under this paragraph are disability or incapacity proceedings, not disciplinary proceedings. Transfer to disability inactive status is not a form of discipline and does not involve a finding of a violation of the Rules of Professional Conduct. The pendency of proceedings provided for by this rule shall not defer or abate other proceedings, including disciplinary proceedings conducted under the Rules Governing Discipline, unless the Supreme Court or the Disciplinary Board determines that the attorney is unable to assist in the defense of those other proceedings because of the disability or incapacity. If such other proceedings are deferred, then the deferral shall continue until such time as the attorney is found to be eligible for reinstatement as provided in Paragraph E of this rule. B.Transfer to disability inactive status upon determination of incompetency, disability, or incapacity. When an attorney has been judicially declared incompetent or has been involuntarily committed for treatment for a mental or emotional condition, after appropriate judicial proceedings, or has been found not guilty of a crime by reason of insanity after appropriate judicial proceedings, the Supreme Court, upon receipt of a certificate and the recommendations from the Disciplinary Board so showing, may enter an order transferring such attorney to disability inactive status effective immediately and for an indefinite period until the further order of the Supreme Court. The attorney, upon request, shall be afforded an opportunity to be heard on the continuation of the disability inactive status. A copy of such order shall be served upon the attorney, the attorney's guardian, and, if applicable, the director of the mental facility in such manner as the Supreme Court may direct. C.Procedure when a determination of incapacity is sought. Except for those situations set forth in Paragraph B of this rule, whenever the Disciplinary Board believes that an attorney is unable to fulfill professional responsibilities competently because of physical, mental, or emotional infirmity, impairment, incapacity, or illness, the Disciplinary Board may, in addition to or instead of proceeding under Rule 17-207 NMRA, petition the Supreme Court to determine whether the attorney is incapacitated from continuing the practice of law and whether the attorney should be transferred to disability inactive status. Upon receipt of such a petition, the Supreme Court may take or direct such action as it deems necessary or proper to determine whether the attorney is so incapacitated, including the examination of the attorney by such qualified medical experts as the Supreme Court may designate and an expedited hearing before the Disciplinary Board under the provisions of Paragraph E of Rule 17-314 NMRA. If, upon due consideration of the matter, the Supreme Court concludes that the attorney is incapacitated from continuing to practice law, it shall enter an order placing the attorney on disability inactive status on the ground of such disability or incapacity for an indefinite period and until the further order of the Supreme Court. Pending disciplinary proceedings against the attorney may be held in abeyance. The Supreme Court shall provide for such notice to the respondent-attorney of proceedings in the matter as is consistent with fundamental fairness and due process and may appoint an attorney to represent the respondent-attorney if the respondent-attorney is without adequate representation.D.Inability to defend self during disciplinary proceeding. If, during the course of a disciplinary proceeding, the respondent-attorney contends, or it becomes apparent to the hearing committee or the Disciplinary Board, that the respondent-attorney is incapacitated to an extent which makes it impossible for the respondent-attorney to adequately present a defense, the hearing committee or the Disciplinary Board may order that the disciplinary proceedings be suspended and the matter may proceed in accordance with Paragraph C of this rule. Alternatively or additionally, in the discretion of the Disciplinary Board, it may move the Supreme Court under Rule 17-207 NMRA to enter an order immediately suspending the respondent-attorney from continuing to practice law. If the respondent-attorney is transferred to disability inactive status, the disciplinary proceedings shall be stayed until such time as the respondent-attorney is found to be eligible for reinstatement as provided in Paragraph E of this rule. If, in the course of a proceeding under this rule and Paragraph C, the Supreme Court determines that the respondent-attorney is not incapacitated from practicing law, it shall take such action as it deems proper and advisable, including a direction for the resumption of the disciplinary proceeding against the respondent-attorney. E.Reinstatement. Unless otherwise determined by the Court in the course of a disability inactive proceeding, an attorney placed on disability inactive status under the terms of this rule may apply for reinstatement in accordance with Rule 17-214(C), (D) and (E) NMRA.F.Burden of proof. In a proceeding under Paragraph C of this rule, the burden of proof by a preponderance of the evidence shall rest with the Disciplinary Board.G.Proceedings under seal. Upon the request of the Disciplinary Board or the attorney, proceedings taken under this rule may be placed under seal in the sole discretion of the Supreme Court.N.M. R. Gov. Disc. 17-208
As amended, effective 9/1/1994;1/1/1995; as amended by Supreme Court Order No. 13-8300-045, effective 12/31/2013; as amended by Supreme Court Order No. 16-8300-026, effective 12/31/2016. ANNOTATIONS The 2016 amendment, approved by Supreme Court Order No. 16-8300-026, effective December 31, 2016, qualified an attorney's ability to apply for reinstatement after being placed on disability inactive status, changed "pursuant to" to "under" throughout the rule and made technical revisions; in Subparagraph (A)(2), after "including disciplinary", changed "proceeding" to "proceedings"; and in Paragraph E, added "Unless otherwise determined by the Court in the course of a disability inactive proceeding", and after "Rule 17-214(C)", added "(D) and (E)". The 2013 amendment, approved by Supreme Court Order No. 13-8300-045, effective December 31, 2013, provided for disability inactive status; the procedure for determination of incapacity, alternative proceedings when an attorney in a disciplinary hearing cannot present a defense because of incapacity, reinstatement, and sealing the proceedings; added Paragraph A; in Paragraph B, in the title of the paragraph, at the beginning of the title, deleted "Determination" and added "Transfer to disability inactive status upon determination", after "of incompetency", added "disability, or incapacity", in the first sentence, after "judicial proceedings", added "or has been found not guilty of a crime by reason of insanity after appropriate judicial proceedings", after "may enter an order", deleted "suspending" and added "transferring", and after "such attorney", deleted "from the practice of law" and added "to disability inactive status", in the second sentence, after "on the continuation of the", deleted "suspension" and added "disability inactive status", and in the third sentence, after "served upon the", deleted "incompetent", after "attorney's guardian and", added "if applicable", and after "in such manner as the", added "Supreme"; in Paragraph C, in the title of the paragraph, at the beginning of the title, deleted "Determination" and added "Procedure when a determination" and after "of incapacity", added "is sought", in the first sentence, at the beginning of the sentence, deleted "Whenever" and added the language beginning with "Except" and ending with "illness", after "Disciplinary Board", deleted "shall" and added "may, in addition to or instead of proceeding under Rule 17-207 NMRA", and after "the practice of law", added the remainder of the sentence, in the second sentence, at the beginning of the sentence, added "Upon receipt of such a petition", in the third sentence, after "shall enter an order", deleted "suspending" and added "placing", after "placing the attorney", added "on disability inactive status", and after "Supreme Court", deleted "and any pending" and a period, and in the fourth sentence, at the beginning of the sentence, added "Pending"; in Paragraph D, in the first sentence, after "adequately present a defense", added the remainder of the sentence, in the second sentence, at the beginning of the sentence, added "Alternatively or additionally, in the discretion of the Disciplinary Board, it may move", after "the Supreme Court", deleted "thereupon may", and after "continuing to practice law", deleted "until a determination is made of the respondent's capacity to continue to practice law in a proceeding instituted in accordance with the provisions of Paragraph B of this rule", added the third sentence, in the fourth sentence, after "proceeding under this rule", deleted "or in a disciplinary proceeding" and added "and Paragraph C"; in Paragraph E, deleted the former language of the paragraph that provided for the reinstatement of an attorney suspended under the rule after one year and at the end of each year after the date of the suspension order, and added the current language of the paragraph; in Paragraph F, after "proceeding", deleted "seeking an order of suspension under this rule" and added "under Paragraph C of this rule"; and added Paragraph G. The 1995 amendment, effective January 1, 1995, added "and an expedited hearing before the Disciplinary Board pursuant to the provisions of Paragraph E of Rule 17-314" at the end of the first sentence in Paragraph B. The 1994 amendment, effective September 1, 1994, inserted "or it becomes apparent to the hearing committee or the Disciplinary Board" near the beginning of Paragraph C, inserted "by a preponderance of the evidence" in Paragraph E, and made gender neutral changes throughout the rule.
For adjudication of incompetency generally, see 45-5-301 to 45-5-307 NMSA 1978. Health issues. - Health issues generally are not considered in mitigation in disciplinary proceedings. In re Martin, 1999-NMSC-022, 127 N.M. 321, 980 P.2d 646. Neither mental nor physical infirmity provides a defense to charges of professional misconduct. In re Martin, 1999-NMSC-022, 127 N.M. 321, 980 P.2d 646. Am. Jur. 2d, A.L.R. and C.J.S. references. - 7 Am. Jur. 2d Attorneys at Law §§ 36 to 39. Validity and construction of rule or order requiring attorney to submit to physical or mental examination to determine capacity to continue in practice of law, 52 A.L.R.3d 1326. Mental or emotional disturbance as defense to or mitigation of charges against attorney in disciplinary proceeding, 26 A.L.R.4th 995. 7 C.J.S. Attorney and Client § 66.