N.M. R. Civ. P. Dist. Ct. 1-089

As amended through May 8, 2024

Rule 1-089 - Entry of appearance; withdrawal or substitution of attorneys

A.Entry of appearance. When an attorney represents a party, the attorney shall file an entry of appearance, unless the court filed an order appointing the attorney. Filing a pleading pursuant to Rule 1-007 NMRA signed by an attorney constitutes an entry of appearance under this rule.

If an attorney's appearance is limited pursuant to Paragraph C of Rule 16-102 NMRA, the attorney shall:

(1) file an entry of appearance entitled "Limited Entry of Appearance" that identifies the nature of the limitation;

(2) note the limitation in the signature block of any paper the attorney files; and

(3) include in the signature block of any paper the attorney files an address where service may be made on the party.

B.Withdrawal by court order required. An attorney shall obtain a court order permitting withdrawal when:

(1) the attorney has appeared without limitation; or

(2) the attorney's appearance is limited pursuant to Paragraph A of this rule and the attorney has not completed the purpose of the representation. A copy of any order permitting an attorney to withdraw shall be filed with the clerk and served on all parties.

The court may place conditions on an order approving withdrawal as justice requires, such as directing the substitution of counsel with an accompanying written notice filed with the clerk and served on the parties or ordering the attorney withdrawing on behalf of a party to file with the clerk and serve on the parties a notice of an address where service may be made upon the party.

When an order permitting withdrawal will result in a party to an action not being represented by an attorney, the order shall reasonably advise that the unrepresented party shall have twenty (20) days to retain an attorney or be deemed to have entered an appearance pro se. The withdrawing attorney shall serve a copy of the order permitting withdrawal on the unrepresented party pursuant to Paragraph B of Rule 1-005 NMRA.

C.Withdrawal upon completion of limited representation. An attorney whose appearance is limited as set forth in Paragraph A of this rule and who has completed the purpose of the limited representation need not obtain a court order permitting withdrawal. Such an attorney shall file with the clerk and serve on all parties a notice of withdrawal or substitution of counsel. If an attorney ceases to act without complying with the provisions of this rule, upon motion of any party or upon the court's own motion, the court may enter an order requiring any actions that the court deems necessary.

D.Service upon attorneys of record. Attorneys of record shall continue to be subject to service for ninety (90) days after entry of final judgment. This rule does not preclude the earlier withdrawal of counsel as provided above.

E.Service upon responding party. In the event of further legal proceedings between the parties after the ninety (90) days have elapsed, the moving party shall effect service of process upon the responding party pursuant to Rule 1-004 NMRA.

N.M. R. Civ. P. Dist. Ct. 1-089

As amended, effective 8/1/1989;4/1/2002; as amended by Supreme Court Order No. 08-8300-013, effective 6/20/2008.

Committee commentary. - The 2008 amendments to Rule 1-089 NMRA consist of new provisions applicable to situations when attorneys enter a limited appearance under Rule 16-102 NMRA as well as stylistic changes to bring the rule up to date with current practice. The rule now permits an attorney to enter a limited entry of appearance and provides specific procedures for withdrawal upon completion of the limited representation.

Previously, the rule provided for withdrawal once an attorney obtained written consent from the court and then provided notice. The 2008 amendments bring the rule into current practice by requiring a court order for withdrawal when an attorney appears without limitation or the attorney's appearance is limited and the attorney has not yet completed the purposes of the limited representation.

The requirement of an order approving withdrawal triggers application of Rules 1-007 and 1-007.1 NMRA concerning written motions, as well as briefings and a hearing when the motion is opposed. Because the new provisions contemplate filing and service of an order permitting withdrawal of counsel, it is not necessary to file an additional notice of withdrawal or substitution. However, the rule specifically affords the court authority to require such additional notices as the court deems necessary.

In situations where an order allowing an attorney to withdraw will leave a party unrepresented, the written order must make specific reference that an unrepresented party has 20 days to retain counsel or will be deemed to appear pro se. The withdrawing attorney must serve the order on the attorney's former client pursuant to Paragraph B of Rule 1-005 NMRA. For further guidance, attorneys may wish to consult Rule 16-116 NMRA, which concerns declining or terminating representation.

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ANNOTATIONS The 2008 amendment, approved by Supreme Court Order No. 08-8300-013, effective June 20, 2008, added the second paragraph of Subsection A to provide for a limited appearance by an attorney; deleted former Subsection B and added a new Subsection B to provide the procedure for withdrawal by an attorney who has entered a general appearance or by an attorney who has entered a limited appearance but who has not completed the purpose of the limited appearance; deleted former Subsection C and added a new Subsection C to provide the procedure for withdrawal by an attorney upon completion of the purpose of a limited appearance; and added the Committee comment. The 2002 amendment, effective April 1, 2002, inserted "Entry of appearance" in the rule heading and added Paragraph A and renumbered former Paragraphs A through D as Paragraphs B through E.

For service and filing of pleadings and other papers, see Rule 1-005 NMRA. For general provision for changing attorney, see 36-2-14 NMSA 1978. For death or removal of attorney, see 36-2-15 NMSA 1978. For withdrawal of attorney on appeal, see Rule 12-302 NMRA. For the definition of a "pleading", see Rule 1-007 NMRA. Compiler's notes. - This rule, as amended in 1979, is almost identical to Rule 2-108 NMRA. Notice to or consent of client not required to change attorney. - This rule does not require notice to or consent of the client. The plain meaning is that notice and consent are discretionary with the court. State v. Deats, 1971-NMCA-089, 82 N.M. 711, 487 P.2d 139 (decided before 1979 amendment). Am. Jur. 2d, A.L.R. and C.J.S. references. - 7 Am. Jur. 2d Attorneys at Law §§181 to 191. Withdrawal or discharge of counsel in civil case as ground for continuance, 48 A.L.R. 1155. Appealability of state court's order granting or denying motion to disqualify attorney, 5 A.L.R.4th 1251. 7A C.J.S. Attorney and Client §§218 to 233.