N.M. R. Prof'l. Cond. 16-803
Such information, threats, or disclosures shall be reported to the New Mexico Disciplinary Board or the New Mexico Judicial Standards Commission, even if the impairment is also reported to the New Mexico Lawyers and Judges Assistance Program. Paragraph (E)(3) of this rule does not apply to any communication that is made to, by, or among members or representatives of the New Mexico Lawyers and Judges Assistance Program.
Any lawyer who has specific objective and articulable facts or reasonable inferences that can be drawn from those facts, that a judge has engaged in such misconduct, shall report those facts to the New Mexico Judicial Standards Commission. Reports of such misconduct shall include the following information:
The Judicial Standards Commission shall review and evaluate reports of such misconduct to determine if the report warrants further review or investigation.
N.M. R. Prof'l. Cond. 16-803
Committee commentary. -
[1] Self-regulation of the legal profession requires that members of the profession initiate disciplinary investigation when they know of a violation of the Rules of Professional Conduct. Lawyers have a similar obligation with respect to judicial misconduct. An apparently isolated violation may indicate a pattern of misconduct that only a disciplinary investigation can uncover. Reporting a violation is especially important where the victim is unlikely to discover the offense.
[2] A report about misconduct is not required where it would involve a violation of Rule 16-106 NMRA. However, a lawyer should encourage a client to consent to disclosure where prosecution would not substantially prejudice the client's interests.
[3] If a lawyer were obliged to report every violation of the Rules of Professional Conduct, the failure to report any violation would itself be a professional offense. Such a requirement existed in many jurisdictions but proved to be unenforceable. This rule limits the reporting obligation to those offenses that a self-regulating profession must vigorously endeavor to prevent. A measure of judgment is, therefore, required in complying with the provisions of this rule. The term "substantial" refers to the seriousness of the possible offense and not the quantum of evidence of which the lawyer is aware. A report should be made to the bar disciplinary agency unless some other agency, such as a peer review agency, is more appropriate in the circumstances. Similar considerations apply to the reporting of judicial misconduct.
[4] The duty to report professional misconduct does not apply to a lawyer retained to represent a lawyer whose professional conduct is in question. Such a situation is governed by the rules applicable to the client-lawyer privilege.
[5] Information about a lawyer's or judge's misconduct or fitness may be received by a lawyer in the course of that lawyer's participation in an approved support group. A lawyer may also receive such information when a lawyer or judge who has a problem with alcohol or substance abuse or is impaired due to mental, emotional, or psychological reasons, reports the problem in order to seek help. Another individual may also report the problem or make a recommendation to seek help for the affected lawyer or judge. Providing for an exception to the reporting requirements of Paragraphs A and B of this rule encourages lawyers and judges to seek treatment through such programs and encourages lawyers and judges to report alcohol or substance abuse or possible mental, emotional, or psychological impairment of other lawyers and judges in order to get counseling or treatment for them. Conversely, without such an exception, lawyers and judges may hesitate to seek assistance from these programs or report possible alcohol or substance abuse, or possible mental, emotional, or psychological problems of other lawyers and judges, which may then result in additional harm to the affected lawyers' or judges' professional careers and additional injury to the welfare of clients and the public.
Subject to Paragraphs (E)(1) and (E)(2) of this rule, a lawyer who is on the New Mexico Lawyers and Judges Assistance Program or who is a member of any committee or subcommittee of the New Mexico Lawyers and Judges Assistance Program designed to assist lawyers or judges with alcohol, drugs, addiction, and other physical or mental health-related disorders shall not be under any obligation to disclose any knowledge or evidence acquired from any other person (including lawyers and judges) during communications made by that other person for the purpose of seeking help of the sort the New Mexico Lawyers and Judges Assistance Program was intended to give. The lawyer's failure to disclose the knowledge or evidence acquired during such communications may not be a basis for any claim or disciplinary action.
[6] Notwithstanding the provisions of Paragraph E, Paragraph G sets forth the requirements for reporting judicial misconduct involving unlawful drugs. See In re Garza, 2007-NMSC-028, 141 N.M. 831, 161 P.3d 876. In addition to these reporting requirements set forth in Paragraph G, the Supreme Court encourages any judge, employee of the judiciary, or lawyer who has a good faith basis to believe a judge is engaged in such misconduct, but does not have specific and articulable facts regarding such conduct, to report such belief to the New Mexico Lawyers and Judges Assistance Program hotline. The suggested reporting is to encourage members of the judiciary to seek appropriate help for alcohol and/or substance abuse problems.
[Adopted by Supreme Court Order No. 08-8300-029, effective November 3, 2008; as amended by Supreme Court Order No. 17-8300-018, effective December 31, 2017.]
.ANNOTATIONS The 2017 amendment, approved by Supreme Court Order No. 17-8300-018, effective December 31, 2017, rewrote the provision related to the alcohol and substance abuse exception to the reporting requirements of this rule, provided immunity from liability for certain individuals for any omission or conduct in carrying out their official duties and responsibilities for the New Mexico Lawyers and Judges Assistance Program and provided immunity from suit for any person who in good faith reports information in connection with the program, and revised the committee commentary; in Paragraph C, after "Rule 16-106 NMRA", deleted "of the Rules of Professional Conduct", after "or", deleted "as set forth in Paragraph E", after "participating in", deleted "an approved lawyers assistance program" and added "the New Mexico Lawyers and Judges Assistance Program, unless the information pertains to those communications requiring disclosure under Paragraph E"; in Paragraph D, after "assistance to the", deleted "highest court of the state" and added "Supreme Court", after "and to the", deleted "disciplinary board" and added "New Mexico Disciplinary Board"; deleted former Paragraph E, which related to an exception to the reporting requirements concerning alcohol or substance abuse by a lawyer or judge, and added a new Paragraph E; and added a new Paragraph F and redesignated former Paragraph F as Paragraph G. The 2008 amendment, approved by Supreme Court Order No. 08-8300-29, effective November 3, 2008, in Paragraph A, changed "appropriate professional authority" to "New Mexico Disciplinary Board"; in Paragraph B, changed "a judge has committed a violation of applicable rules of judicial conduct or has engaged in conduct that raises a substantial question" to "a judge has committed a violation of applicable rules of judicial conduct that raises a substantial question" and changed "appropriate authority" to "New Mexico Judicial Standards Commission"; in Paragraph C, added the provision which provides that the rule does not require disclosure of information gained while participating in an approved lawyers assistance program except as provided in Paragraph E; in Paragraph E, deleted former Subparagraph (1) which provided that Paragraphs A and B do not apply to any communication that is intended to be confidential; relettered former Subparagraph (2) of Paragraph E as Subparagraph (1); relettered former Subparagraph (3) of Paragraph E as Subparagraph (2); in Subparagraph (2) of Paragraph E, changed "a lawyers support group" to "the Lawyer's Assistance Committee of the State Bar"; in the last sentence of Paragraph E, inserted "including information that must be reported under Paragraph F of this Rule"; and added a new Paragraph F. The 1991 amendment, effective April 1, 1991, added Paragraph E. Failure to cooperate with disciplinary proceedings. - When attorney failed to file an answer or appear at the proceedings before the hearing committee, he did not request a hearing before the Disciplinary Board although advised of his right to do so, and failed to appear before the supreme court, such conduct violated Rule 16-804D NMRA and Paragraph D of this rule. In re Carrasco, 1987-NMSC-089, 106 N.M. 294, 742 P.2d 506. Since attorney failed to pay complainant-physician certain funds reportedly withheld by attorney for physician from the settlement funds of three of attorney's clients, who were also physician's patients, and attorney later informed physician that he had spent the clients' funds but would be able to pay physician as soon as he received money in another settlement, and failed to respond to the board's inquiries after physician reported attorney's failure to pay to the disciplinary authorities, attorney violated this rule in that he failed to give full cooperation and assistance to the disciplinary board and its counsel in discharging their respective functions and duties with respect to discipline and disciplinary procedures. In re C'De Baca, 1989-NMSC-070, 109 N.M. 151, 782 P.2d 1348. Any attempt by counsel to prevent the filing of a disciplinary complaint, such as by suing former client in retaliation for client's filing of a disciplinary complaint against him, will not be tolerated and will be viewed as a failure to cooperate with the New Mexico Supreme Court, the Disciplinary Board, its hearing committees and disciplinary counsel in the discharge of their respective functions and duties. In re Cutter, 1994-NMSC-086, 118 N.M. 152, 879 P.2d 784. Attorney's misappropriation of client funds and failure to cooperate with disciplinary counsel warranted disbarment. In re Krob, 1997-NMSC-037, 123 N.M. 652, 944 P.2d 881. Practice before disciplinary board. - It is the duty of all attorneys, even those representing an attorney before the disciplinary board, to give full cooperation and assistance to not only the Supreme Court, but also the disciplinary board and its representatives; deadlines imposed by disciplinary counsel or the Rules Governing Discipline are to insure that the disciplinary process moves as expeditiously as possible. In re Jones, 1995-NMSC-010, 119 N.M. 229, 889 P.2d 837. Indefinite suspension warranted. - Indefinite suspension was warranted because an attorney violated Paragraph D, by failing to cooperate with disciplinary counsel in the course of the investigation. The attorney also violated Rule 16-101 NMRA, by failing to provide competent representation; Rule 16-102(A) NMRA, by failing to abide by a client's decisions concerning the objectives of the representation; Rule 16-103 NMRA, by failing to act with reasonable diligence and promptness in representing a client; Rule 16-104(A) NMRA, by failing to keep a client reasonably informed about the status of a matter and by failing to promptly comply with reasonable requests for information; Rule 16-116(D) NMRA, by failing to timely surrender papers and property to which a client was entitled and by failing to timely refund any advance payment of fee that had not been earned; Rule 16-804(D) and (H) NMRA, by engaging in conduct that is prejudicial to the administration of justice and conduct that adversely reflects on his fitness to practice law; and Rule 16-801(B) NMRA, by failing to respond to lawful requests for information from the office of disciplinary counsel. In re Carlton, 2000-NMSC-001, 128 N.M. 419, 993 P.2d 736. Rule violated. In re Martinez, 1988-NMSC-033, 107 N.M. 171, 754 P.2d 842; In re Canevaro, 1997-NMSC-033, 123 N.M. 576, 943 P.2d 1029; In re Chavez, 2000-NMSC-015, 129 N.M. 035, 1 P.3d 417.