Rule 17-309 - Formal charges; designation of hearing officer or committeeA.Institution of proceedings. Formal disciplinary proceedings shall be instituted by the filing of a specification of charges with the chair of the Disciplinary Board and the issuance by the chair of a formal notice to the respondent-attorney. A copy of the notice, together with a copy of the specification of charges, shall be served upon the respondent-attorney.B.Contents of specification of charges. The specification of charges shall contain: (1) a brief and plain statement of the charge, or if more than one, each of the separate charges of professional misconduct asserted against the respondent-attorney;(2) the provisions of the Rules of Professional Conduct, court rule, statute or other law claimed to have been violated;(3) the names and addresses of all known witnesses against the respondent-attorney;(4) all known factors in aggravation; and(5) the name and address of the particular disciplinary counsel who is expected to prosecute the matter. After review and approval as provided for in Paragraph E of Rule 17-307 NMRA, specification of charges shall be signed by chief disciplinary counsel, deputy disciplinary counsel, assistant disciplinary counsel, or special assistant disciplinary counsel.
C.Designation of hearing officer or committee and notice. Upon filing of the specification of charges, the chair of the Disciplinary Board, or the chair's designee, shall forthwith designate a hearing officer or a hearing committee to hear the matter, and shall mail copies of the specification of charges to the hearing officer or to the members of the committee. The chair shall issue a formal notice to the respondent-attorney which shall advise the respondent-attorney that formal charges of unprofessional conduct have been instituted against the respondent-attorney and referred for hearing to a hearing officer or hearing committee giving the names and addresses of the members thereof and identification of its chair. The notice shall formally advise the respondent-attorney of the following:(1) the right to file an answer to the specification of charges;(2) the facts alleged in the specification of charges shall be deemed admitted if not specifically denied by answer or if no answer is filed within the prescribed time, in which event the sole issue to be determined by the hearing officer or committee shall be the nature of the officer's or committee's recommendation of discipline to the Disciplinary Board after consideration of any facts in aggravation or mitigation of the respondent-attorney's fault;(3) the respondent-attorney has the right to be represented by counsel, to appear at all hearings, to confront and cross-examine the witnesses and to present relevant evidence in the respondent-attorney's own behalf;(4) the right to the assistance of subpoenas to be issued at the respondent-attorney's request and to discovery in accordance with these rules; and(5) within ten (10) days of receipt of notification of the designation of the members of a hearing committee, the respondent-attorney has the right to object to the qualification of the hearing officer or any member of the hearing committee setting forth facts which establish that such member cannot impartially decide the matter. Any objection to the qualification of any member of the hearing committee to sit and deliberate upon the matter must be filed with the committee chair and will be passed upon by members of said committee in the exercise of their sound discretion. Any objection to the qualification of a hearing officer shall be to the chair of the Disciplinary Board. A hearing officer or any member of a hearing committee who feels unable to sit impartially in any disciplinary proceeding may withdraw upon the filing of a notice of recusal stating the reasons for the recusal. D.Service. Service of the specification of charges and formal notice shall be made upon the respondent-attorney in the manner prescribed by these rules. A copy of any procedural rules adopted by the Supreme Court or Disciplinary Board which have not been published in the NMRA shall be served on the respondent-attorney with the specification of charges. If service is by mail it shall be by certified mail, return receipt requested, directed to the respondent-attorney's address of record in the office of the clerk of the Supreme Court and shall be complete upon receipt by the respondent-attorney, or five (5) days after service or mailing, whichever is earlier.N.M. R. Gov. Disc. 17-309
As amended, effective 1/1/1987; as amended by Supreme Court Order No. 06-8300-032, effective 1/15/2007; by Supreme Court Order No. 11-8300-028, effective 6/1/2011. ANNOTATIONS The 2011 amendment, approved by Supreme Court Order No. 11-8300-028, effective June 1, 2011, permitted deputy disciplinary counsel, assistant disciplinary counsel, or special assistant disciplinary counsel to sign a specification of charges after the chief disciplinary counsel has reviewed and approved the charges. The 2006 amendment, approved by Supreme Court Order No. 06-8300-032, effective January 15, 2007, added a new Subparagraph (4) of Paragraph B requiring the specification of charges to include "all known factors in aggravation" and re-lettered former Subparagraph (4) as Subparagraph (5). Am. Jur. 2d, A.L.R. and C.J.S. references. - 7 Am. Jur. 2d Attorneys at Law §§ 87, 89 to 92, 96. 7A C.J.S. Attorney and Clients §§ 88 to 111.