A.Confidentiality. Except as otherwise provided by this rule, any investigation and any investigatory hearing conducted by or under the direction of disciplinary counsel, or disciplinary counsel's authorized agents, shall be held entirely confidential by disciplinary counsel and by disciplinary counsel's authorized agents unless and until they: (1) become matters of public record by: (a) the filing of a formal specification of charges with the Disciplinary Board pursuant to Rule 17-309 NMRA;(b) the filing of a summary suspension proceeding pursuant to Rule 17-207 NMRA;(c) the filing of an incompetency or incapacity proceeding pursuant to Rule 17-208 NMRA;(d) the filing of a reinstatement proceeding pursuant to Rule 17-214 NMRA; or(e) the filing of a motion for order to show cause why a respondent should not be held in contempt pursuant to Paragraph G of Rule 17-206 NMRA; or(2) are otherwise released according to these rules.B.Exceptions. 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, the name of the subject, general nature of the possible crime, relevant facts and documents and names of known witnesses to relevant facts shall 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 the Client Protection Fund Commission, such information as may assist the committee in determining the validity or worthiness of a specific claim filed with that commission may be submitted to that commission with the understanding and condition that commission members receiving and reviewing such information are subject to the provisions of Subparagraph (5) of Paragraph C of Rule 17-105 NMRA as well as the rules of confidentiality governing the Client Protection Fund Commission.C.Exceptions to public record. The Disciplinary Board or a hearing committee may, in the exercise of discretion, place the following matters under seal, upon request of disciplinary counsel, the respondent or sua sponte: (1) documents, pleadings and testimony relating to the physical or mental condition or treatment of the respondent;(2) matters regarding allegations of substance abuse by the respondent; or(3) matters resulting in private discipline or dismissal pursuant to a consent to discipline agreement, the recommendation of a hearing committee, the decision of the Disciplinary Board. Upon the filing of proceedings in the Supreme Court, the proceedings shall no longer be confidential or sealed unless ordered by the Supreme Court on its own motion or the motion of a party. A party may request the proceedings be sealed by the Supreme Court by filing a motion to seal the proceedings with the pleadings and transcript.D.Immunity from civil suit. Members of the board, members of hearing committees, disciplinary counsel, monitors or any other person acting on their behalf and staff shall be immune from suit as provided by statute or common law for all conduct in the course of their official duties. Immunity from suit shall also extend, as provided by statute or common law, to complainants and witnesses for all communications to the board, hearing committees or disciplinary counsel relating to lawyer misconduct or disability.E.Witness immunity. If a person has been or may be called to testify or to produce a record, document, or other object in an official proceeding conducted under the disciplinary authority of a hearing officer, hearing committee, the board or the Supreme Court, disciplinary counsel may file a written application with the Supreme Court requesting the Court to issue a written order requiring the person to testify or to produce the record, document or other object notwithstanding his privilege against self-incrimination. Disciplinary counsel shall give the appropriate prosecuting authority notice of any application filed pursuant to this paragraph. Upon consideration of the application and any objection that may be filed by the appropriate prosecuting authority, the Court may grant the application and issue a written order pursuant to this paragraph if it finds: (1) the testimony, or the record, document or other object may be necessary to protect the public interest; and(2) the person has refused or is likely to refuse to testify or to produce the record, document or other subject on the basis of his privilege against self-incrimination.F.Use of evidence obtained under immunity order precluded. Evidence compelled under an order issued pursuant to the provisions of Paragraph E of this rule requiring testimony or the production of a record, document or other object notwithstanding a privilege against self-incrimination, or any information directly or indirectly derived from such evidence, may not be used against the person compelled to testify or produce in any criminal case, except a prosecution for perjury committed in the course of the testimony or in a contempt proceeding for failure to comply with the order.G.Hearings. Formal proceedings conducted before a hearing committee or the Disciplinary Board shall be open to the public. Any person may publicly comment thereon. Attorneys remain subject to the restrictions of Rule 16-306 NMRA.H.Disposition. Complainants shall be advised every six (6) months as to the status of the investigation and shall be immediately advised of the final disposition of their complaints.I.Testimony in or about Disciplinary Proceedings. In no case shall Disciplinary Counsel, a Disciplinary Board member or a member of a hearing committee be subject to a subpoena or otherwise compelled to testify in any proceeding, including a pending disciplinary proceeding, regarding any matter investigated or considered in such person's official capacity.N.M. R. Gov. Disc. 17-304
As amended, effective 9/1/1992;2/14/1995;8/31/2004;12/13/2005; as amended by Supreme Court Order No. 07-8300-010, effective 4/30/2007; as amended by Supreme Court Order No. 15-8300-022, effective 12/31/2015. ANNOTATIONS The 2015 amendment, approved by Supreme Court Order No. 15-8300-022, effective December 31, 2015, prohibited disciplinary counsel, a disciplinary board member or a member of a disciplinary hearing committee from being compelled to testify in any proceeding regarding any matter investigated or considered in such person's official capacity; and added new Paragraph I. The 2007 amendments, approved by Supreme Court Order No. 07-8300-010, effective April 30, 2007, amends Paragraph A to limit confidentiality to disciplinary counsel and disciplinary counsel's authorized agents; adds Paragraph D relating to immunity from suit; adds Paragraph E, relating to witness immunity; adds Paragraph F relating to use of evidence obtained under immunity order and reletters Paragraphs D and E as Paragraphs G and H. The 2005 amendment, approved by Supreme Court Order No. 05-8300-023, effective December 13, 2005 amended Subparagraph (3) of Paragraph B to change "Client Security Fund Committee" to "Client Protection Commission". The 2004 amendment, effective August 31, 2004, substituted "disciplinary counsel's" for "their" in the introductory language of Paragraph A and deleted "Supreme Court, the" preceding "Disciplinary" in the introductory language of Paragraph C, and, in Subparagraph (3) of that paragraph, deleted "or the Supreme Court" following "Board" at the end of the first sentence and added the second and third sentences providing upon the filing of proceedings in the Supreme Court, the proceedings are no longer confidential. The 1995 amendment, effective February 14, 1995, inserted the Subparagraph A(1) and A(1)(a) designations, added Subparagraphs A(1)(b) through A(1)(e), and added Paragraph C. The 1992 amendment, effective September 1, 1992, in Paragraph A, substituted "by the filing of a formal specification of charges with the Disciplinary Board pursuant to Rule 17-309" for "by being filed in the Supreme Court"; in Paragraph B, substituted "by disciplinary counsel prior to filing formal charges" for "by the Disciplinary Board" in the introductory language, substituted "disciplinary counsel" for "the Disciplinary Board" and inserted "by an attorney" and "relevant facts and documents" in Subparagraph (1), and substituted "office of disciplinary counsel" for "the Disciplinary Board" in Subparagraph (2); and, in Paragraph C, rewrote the first sentence and added the second sentence.
For the Tort Claims Act, see 41-4-1 NMSA 1978. Common-law sovereign immunity abolished. - Common-law sovereign immunity may no longer be interposed as a defense by the state or any of its political subdivisions in tort actions. Hicks v. State, 1975-NMSC-056, 88 N.M. 588, 544 P.2d 1153. In derogation of common law. - Insofar as it re-established sovereign immunity, the Tort Claims Act was in derogation of the common law, but in its exceptions, the Act restored the common law right to sue in those specific situations; because of the complex relationship between the Act and the common law, the more useful canon of construction is that requiring courts to give effect to the legislature's intent. Brenneman v. Board of Regents of U.N.M., 2004 -NMCA-003, 135 N.M. 68, 84 P.3d 685, cert. denied, 2003-NMCERT-003. Not protected by tort of breach of confidence. - Any duty of confidentiality created by the rules as between attorney-complainants acting for a client and attorney-respondents is not of the sort protected by the tort of breach of confidence. Fernandez-Wells v. Beauvais, 1999-NMCA-071, 127 N.M. 487, 983 P.2d 1006.