N.M. R. Gov. Disc. 17-214

As amended through November 1, 2024

Rule 17-214 - Reinstatement

A.Disbarred attorney. A person who has been disbarred may not apply for reinstatement.

B.Suspended attorneys.

(1) An attorney who has been suspended for a specific period of time of six (6) months or less, not including any period of deferment, shall be automatically reinstated at the expiration of the period specified in the order of suspension, provided that at least two (2) weeks prior to the date of the expiration of the period of suspension the attorney shall file an affidavit of compliance stating that the attorney has complied with any previously imposed conditions of reinstatement and serve a copy of the same upon disciplinary counsel. The affidavit of compliance shall set out every condition for reinstatement and state, separately for each condition, what the suspended attorney did to comply with that condition. The suspended attorney will automatically be reinstated as of the day after the expiration of the period of suspension unless, prior to the expiration of such time, disciplinary counsel has filed with the Supreme Court written objections. If objections are filed, the application shall be referred to the Disciplinary Board which shall refer the matter for determination as provided in Paragraph E of this rule.

(2) Except as provided in Paragraph C of this rule, an attorney who has been suspended for a definite period of time more than six (6) months or for an indefinite period of time, not including any period of deferment, at any time after complying with the conditions of reinstatement, but in the case of the latter, no sooner than one (1) year after the date of the suspension, not including any period of deferment, and unless otherwise ordered by the Supreme Court, may file with the Disciplinary Board a petition for reinstatement attaching to the petition 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. The petition shall be considered by the Disciplinary Board under Paragraph E of this rule. If after receiving the recommendations of the Disciplinary Board, the petition is denied by the Supreme Court, the attorney is not entitled to petition for reinstatement prior to the expiration of a twelve (12) month period, commencing the date that the petition is denied by the Supreme Court unless a shorter interval is directed in the order denying the petition for reinstatement.

C.Reinstatement from disability inactive status. Under the provisions of this paragraph and Paragraphs D and E of this rule, an attorney who has been suspended indefinitely due to incompetency or incapacity under the provisions of Rule 17-208 NMRA may move for reinstatement upon clear and convincing evidence that the incapacity, disability, or other condition that led to the attorney's placement on disability inactive status has been terminated and that the attorney is once again fit to resume the practice of law; provided, however, that in the event that a motion for reinstatement is denied, no further motion for reinstatement may be made until the expiration of at least one (1) year following the denial, unless a different period for renewing the motion for reinstatement is specified by the Supreme Court.

D.Costs deposits. Any person filing a petition for reinstatement under Subparagraph (B)(2) or Paragraph C of this rule must attach to the motion or petition a certified check in the amount of one thousand five hundred dollars ($1,500) payable to the Disciplinary Board as a deposit toward the costs of the proceeding. Any amounts not expended for costs as enumerated in Rule 17-106 NMRA shall be refunded to the respondent-attorney by the Disciplinary Board within thirty (30) days of the entry of the order of the Supreme Court granting or denying reinstatement. Nothing in this paragraph will prevent the Supreme Court from assessing against the person seeking reinstatement any additional costs incurred in the reinstatement proceedings, regardless of the outcome of the proceedings.

E.Procedure of reinstatement hearing. Applications for reinstatement by attorneys who have been suspended for a definite period of time more than six (6) months, not including any period of deferment, or who have been indefinitely suspended for any period of time greater than six (6) months, not including any period of deferment, on account of misconduct, incompetency, or incapacity, or who have resigned while under investigation by the Disciplinary Board under Rule 17-209 NMRA, or who were placed on disability inactive status under Rule 17-208 NMRA shall be referred by the Disciplinary Board to an appropriate hearing committee. The hearing committee shall promptly schedule a hearing at which the respondent-attorney shall have the burden of demonstrating by clear and convincing evidence that the respondent-attorney has the moral qualifications to practice law; that the respondent-attorney is once again fit to resume the practice of law; and that the resumption of the respondent-attorney's practice of law will not be detrimental to the integrity and standing of the bar, the administration of justice, or the public interest. At the conclusion of the hearing, the hearing committee shall promptly file a report containing its findings of fact, conclusions, and recommendations, and shall transmit the same, together with the record, to the Disciplinary Board. The Board shall review the report of the hearing committee and the record, and it may, upon request of either the respondent-attorney or disciplinary counsel made within ten (10) days of the receipt of the hearing committee's record by the Board, require the submission of briefs and hear oral argument. The Board shall consider only the evidence in the record before the hearing committee and shall not admit any new evidence before the Board. Within ninety (90) days of its receipt of the hearing committee record or within thirty (30) days of hearing oral argument, whichever period is shorter, the Board shall file its own recommendations with the Supreme Court, together with the record. The motion shall then be scheduled for oral argument and the submission of briefs to the Supreme Court if and as the Supreme Court may direct, after which the Supreme Court shall determine whether or not the motion should be granted in its sound discretion. The Supreme Court may require as a condition to reinstatement that the attorney successfully pass the New Mexico Bar Examination prior to reinstatement; that the attorney undergo a character and fitness evaluation by the Board of Bar Examiners, paying whatever fee the Board of Bar Examiners determines is appropriate for such evaluation, and directing that any recommendations based on such evaluation shall be made a part of the record during reinstatement proceedings; that the attorney submit to a medical, mental health, and/or substance abuse evaluation by an evaluator approved by the Supreme Court and paid for by the attorney to determine the attorney's fitness to return to the practice of law; that the attorney meet the continuing education credit requirements applicable to active, licensed New Mexico attorneys for each compliance year during the attorney's suspension; that the attorney take and attain at least an eighty-five (85) scaled score on the Multi-State Professional Responsibility Examination given by the Board of Bar Examiners; and that the attorney satisfy such other conditions as the Court may require.

F.Duties of disciplinary counsel. In all proceedings before the Disciplinary Board upon a motion for reinstatement, cross-examination of the respondent-attorney's evidence in support of the motion and the submission of evidence, if any, in opposition to the motion for reinstatement shall be conducted by disciplinary counsel.

G.Expenses. The Supreme Court in its discretion may direct that the necessary expenses incurred in the investigation and processing of a motion for reinstatement be paid by the respondent-attorney.

H.Attorneys on probation. If an attorney has been placed on probation under Rule 17-206(B) NMRA, and is not otherwise required to or has successfully petitioned for reinstatement under Paragraph E of this rule, upon completion of the probationary period, the attorney may file with the Disciplinary Board a petition to be released from probation, along with an affidavit of compliance and any supporting documentation detailing the manner in which the attorney has satisfied or complied with the terms and conditions of probation. The petition, affidavit of compliance with probation, and any objections by disciplinary counsel to the petition shall be reviewed by a member of the Disciplinary Board. Oral argument, briefing, or both may be held in the discretion of the Board member upon request of either party or at the request of the Board member. If argument is held, it shall be conducted in accordance with procedures set forth in Rule 17-314 NMRA. The Board member may also refer the petition to a hearing committee for further proceedings under Paragraph E of this rule. After reviewing and investigating a petition for reinstatement, the Disciplinary Board may order the following:

(1) full release of the attorney from probation; or

(2) extension of some or all of the terms of probation for a period not to exceed two (2) years.

I.Waiver of psychotherapist-patient privilege. The filing of an application for reinstatement by an attorney suspended for incompetency or incapacity, or placed on disability inactive status, shall be deemed to constitute 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 shall be required to disclose the name and address of every psychiatrist, psychologist, physician, hospital, or other institution by whom or in which the attorney has been examined or treated for the condition upon which the attorney was determined disabled since the attorney's suspension or transfer to disability inactive status, and the attorney shall furnish to the Disciplinary Board or disciplinary counsel written consent for each psychiatrist, psychologist, physician, hospital, or other institution to divulge such information and records as requested by the Board or any court-appointed or Board-retained medical experts.

N.M. R. Gov. Disc. 17-214

As amended, effective 5/1/1986;9/1/1992; as amended by Supreme Court Order No. 06-8300-032, effective 1/15/2007; as amended by Supreme Court Order No. 12-8300-008, effective 4/5/2012; as amended by Supreme Court Order No. 12-8300-021, effective 6/18/2012; 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; as amended by Supreme Court Order No. 18-8300-009, effective 12/31/2018.

ANNOTATIONS The 2018 amendment, approved by Supreme Court Order No. 18-8300-009, effective December 31, 2018, excluded any period of deferment in calculating the suspension period for purposes of reinstatement of attorneys who have been suspended from the practice of law, and revised the provisions related to petitions to be released from probation for attorneys who have been placed on probation; in Paragraph B, in Subparagraph B(1), after "(6) months or less", added "not including any period of deferment", and in Subparagraph B(2), after "indefinite period of time", added "not including any period of deferment", and after "(1) year after the date of suspension", added "not including any period of deferment"; in Paragraph E, after "six (6) months," added "not including any period of deferment", and after "indefinitely suspended", added "for any period of time greater than six (6) months, not including any period of deferment"; and in Paragraph H, deleted "Upon" and added "If an attorney has been placed on probation under Rule 17-206(B) NMRA, and is not otherwise required to or has successfully petitioned for reinstatement under Paragraph E of this rule, upon", after "completion of the probationary period", deleted "an attorney who has been put on formal probationary status under Rule 17-206 NMRA shall" and added "the attorney may", after "petition", deleted "for reinstatement" and added "to be released from probation along", after "affidavit of compliance", added "and any supporting documentation detailing the manner in which the attorney has satisfied or complied", after "conditions of probation", deleted "attached, in order to be terminated from probationary status", after and added "The petition", after "and any", deleted "to reinstatement", after "shall be reviewed by a", deleted "panel" and added "member", after "Oral argument", deleted "will" and added "briefing, or both may", after "be held", added "in the discretion of the Board member", after "The Board", deleted "panel" and added "member", and after "Disciplinary Board may", deleted "recommend" and added "order the following", in Subparagraph H(1), after "full", deleted "reinstatement" and added "release of the attorney from probation; or", in Subparagraph H(2), after "extension of", deleted "the period" and added "some or all of the terms", and deleted former Subparagraph H(3), which related to the imposition of alternative discipline. The 2016 amendment, approved by Supreme Court Order No. 16-8300-026, effective December 31, 2016, changed "pursuant to" to "under" throughout the rule and made technical and clarifying revisions; in Paragraph C, added "Under the provisions of this paragraph and Paragraphs D and E of this rule"; in Paragraph D, after "Subparagraph", added "(B)" and deleted "of Paragraph B"; in Paragraph E, in the first sentence, after "misconduct, incompetency or incapacity, or", deleted "by attorneys", and after "disability inactive status", added "under Rule 17-2018 NMRA"; and in Paragraph H, after "Rule 17-206 NMRA", deleted "must" and added "shall", after "reinstatement", deleted "attaching thereto" and added "with", and after "terms and conditions of probation", added "attached". The 2013 amendment, approved by Supreme Court Order No. 13-8300-045, effective December 31, 2013, provided for reinstatement from any condition that led to the attorney's placement on disability inactive status; in Paragraph C, deleted the former title of the paragraph "Suspension due to incompetency or incapacity" and added the current title, after "convincing evidence that the", added "incapacity", and after "incapacity, disability", added "or other condition that led to the attorney's placement on disability inactive status"; in Paragraph E, in the first sentence, after "Rule 17-209 NMRA", added "or who were placed on disability inactive status", and in the second sentence, after "the moral qualifications", added "to practice law"; and in Paragraph I, in the first sentence, after "incompetency or incapacity", added "or placed on disability inactive status", and in the second sentence, after "or transfer to disability", added "inactive", after "the attorney shall furnish to the", deleted "Supreme Court" and added "Disciplinary Board or disciplinary counsel", after "records as requested by", added "the board or any", and after "or any court-appointed", added "or board-retained". The second 2012 amendment, approved by Supreme Court Order No. 12-8300-021, effective June 18, 2012, required disciplinary counsel to conduct all proceedings before the Disciplinary Board; authorized the Supreme Court to assess costs to the respondent-attorney; provided the procedure for review of petitions to reinstate attorneys on formal probation and specified the recommendations that the Disciplinary Board may make with regard to reinstatement; provided that an application for reinstatement by an attorney suspended for incompetency or incapacity constitutes a waiver of any psychotherapist-patient privilege and required the attorney to provide the name and address of the attorney's treating medical professional or institution and written consent for each treating medical professional or institution to divulge the attorney's medical information and records to the Supreme Court; and added Paragraphs F through I. The first 2012 amendment, approved by Supreme Court Order No. 12-8300-008, effective April 5, 2012, prohibited the reinstatement of disbarred attorneys; provided that an attorney suspended for six months or less is automatically reinstated at the expiration of the suspension period; provided that an attorney who have been suspended for a definite period of more than six months may apply for reinstatement after the end of the suspension period; provided that an attorney who has been suspended for an indefinite period of time may not apply for reinstatement for one year after the expiration of the suspension period; in considering whether to recommend reinstatement of an attorney who has been suspended for a period of more than six month, required the Disciplinary Board to consider only the evidence in the record before the hearing committee and imposed deadlines for filing the Disciplinary Board's recommendations with the Supreme Court; permitted the Supreme Court to impose conditions to reinstatement; in Paragraph A, deleted the former language, which provided the procedure for reinstatement of a disbarred attorney; in Paragraph B(1), in the first sentence, after "suspended for a specific period of time", added "six (6) months or less"; in Paragraph B(2), in the first sentence, after "an attorney who has been suspended", added "for a definite period of time more than six (6) months", after "conditions of reinstatement", added "but in the case of the latter, no sooner that one (1) year after the date of the suspension unless otherwise ordered by the Supreme Court", after "may file with the", deleted "clerk of the Supreme Court" and added "Disciplinary Board"; and in the second sentence, after "The petition shall be", deleted "referred to" and added "considered by", and after "considered by the Disciplinary Board", deleted the "for a hearing and recommendations"; in Paragraph D, in the first sentence, after "Any person filing", deleted "a motion for permission to apply for reinstatement pursuant to Paragraph A of this rule or", and after "payable to the Disciplinary Board", deleted the phrase that began the former second sentence "If the matter is remanded to the Disciplinary Board for proceedings as provided in Paragraph E of this rule, the clerk shall forward the check to the Disciplinary Board"; in Paragraph E, in the first sentence, after "Applications for reinstatement by attorneys", added "who have been suspended for a definite period of time more that six (6) months, or who have been", and after "or by attorneys who have", deleted "been disbarred or who have"; in the fourth sentence, after "hearing committee and the record, and", added the remainder of the sentence; added the fifth sentence; in the sixth sentence, added the language before "shall file its own recommendations"; in the eighth sentence, after "the attorney successfully pass", added the language before "the Multi-State Professional Responsibility Examination", and after "the Multi-State Professional Responsibility Examination" added the remainder of the sentence; deleted former Paragraph F, which prescribed the duties of disciplinary counsel; deleted former Paragraph G, which permitted the Supreme Court to assess costs to the respondent attorney; deleted former Paragraph H, which provided for the reinstatement of attorneys on probation; and deleted former Paragraph I, which provided for the waiver of the psychologist-patient privilege of attorneys suspended for incompetency or incapacity. The 2006 amendment, approved by Supreme Court Order No. 06-8300-032, effective January 15, 2007, amended Paragraph A to increase the number of years that a disbarred attorney must wait before filing for reinstatement from 3 to 5 years and to add the second and third sentences of the paragraph relating to an affidavit of compliance; and revised Subparagraph (1) of Paragraph B to provide for the filing of an affidavit of compliance 2 weeks prior to the expiration of the period of a suspension. The 1992 amendment, effective September 1, 1992, in Paragraph B, substituted "Paragraph E" for "Paragraph D" in the second sentence of Subparagraph (2); added present Paragraph D; redesignated former Paragraphs D to H as present Paragraphs E to I; and made gender neutral substitutions in Paragraphs B, C, E, and I.

For reinstatement, see 36-2-23 NMSA 1978. Definite suspension and reinstatement. - When circumstances warrant only an indefinite suspension, an attorney may petition the Supreme Court for reinstatement as soon as she or he has satisfied the conditions for reinstatement. When circumstances warrant the more serious discipline of a period of definite suspension, the attorney remains suspended for that period, regardless of whether or not any conditions for reinstatement have been satisfied. If the attorney has not satisfied the conditions imposed by the Supreme Court when the period of definite suspension expires, disciplinary counsel is permitted to file objections to the attorney's reinstatement. In the Matter of Yalkut, 2008-NMSC-009, 143 N.M. 387, 176 P.3d 1119. Duty of lawyer on probation. - The objective of a period of supervised probation is not merely to insure that an attorney comports himself or herself in accordance with the Rules of Professional Conduct and other rules of law and procedure during the period of probation, and thereafter be free to return with impunity to whatever aberrant behavior brought about the sanction in the first place; an attorney on probation is obligated to utilize the assistance and guidance of the supervisor to modify the practices or habits which led to the initial finding of misconduct. In re Tapia, 1996-NMSC-025, 121 N.M. 707, 917 P.2d 1379. Restitution required. - When an attorney was suspended from the practice of law for a period of six months, he was required, as a prerequisite to reinstatement, to show that he had paid in full all restitution with interest and costs of these disciplinary proceedings. In re Trujillo, 1990-NMSC-062, 110 N.M. 180, 793 P.2d 862. Failure to petition for reinstatement. - A disciplined attorney's failure to provide full cooperation to disciplinary counsel, to take the Multistate Professional Responsibility Exam as ordered, and to petition for reinstatement in order to be terminated from probationary status warranted indefinite suspension of not less than one year. In re Norton, 1991-NMSC-053, 112 N.M. 75, 811 P.2d 573. Failure to show rehabilitation. - An indefinitely suspended attorney who failed to produce adequate testimony of current knowledge of the law, or that he had been treated for a personality disorder believed to have contributed to his misconduct, and who failed to make restitution or to pay the costs of the original proceeding against him was not entitled to reinstatement. In re Quintana, 1991-NMSC-055, 112 N.M. 132, 812 P.2d 786. Condition of showing fitness to practice. - When an indefinite suspension is imposed pursuant to Paragraph B(2), the attorney is not automatically reinstated. The attorney must satisfy all imposed conditions before any consideration of an application for reinstatement. The conditions in this case recommended by the hearing committee and Disciplinary Board, which this court hereby adopts, include that the attorney must demonstrate by clear and convincing evidence that she is fit to resume the practice of law and that the resumption of the practice of law will not be detrimental to the public interest. Considering the gravity of her breach of the trust given her by this court and the public, demonstrating that she is fit to resume the practice of law and is no longer a threat to the public will be a heavy burden indeed. In re Shepard, 1993-NMSC-038, 115 N.M. 687, 858 P.2d 63. Am. Jur. 2d, A.L.R. and C.J.S. references. - 7 Am. Jur. 2d Attorneys at Law §§ 98 to 100. Reinstatement of attorney after disbarment, suspension, or resignation, 70 A.L.R.2d 268, 58 A.L.R.3d 1191. Bar admission or reinstatement of attorney as affected by alcoholism or alcohol abuse, 39 A.L.R.4th 567. Conditioning reinstatement of attorney upon reaffirmation of debt discharged in bankruptcy, 39 A.L.R.4th 586. 7A C.J.S. Attorney and Client §§ 122 to 130.