Standards of Professional Conduct
The Supreme Court of New Mexico has adopted the Rules of Professional Conduct which establish high standards of ethics and professional competence for lawyers who practice in New Mexico, and has established an agency known as the Disciplinary Board to enforce them. Most lawyers are reputable and sincere and strive to maintain these standards.
The Purpose of Discipline
The purpose of discipline is to protect the public from future acts of professional misconduct and to establish and maintain high ethical standards in the legal profession. It is not to punish the attorney or to compensate a client for a loss caused by an attorney’s misconduct. A complainant seeking to recover money damages should retain another lawyer who can advise the complainant as to the civil remedies available.
When is Discipline Appropriate?
When they enter the practice of law, all lawyers take an oath to uphold the law and abide by the Rules of Professional Conduct promulgated by the Supreme Court of New Mexico. Those who violate the standards of professional conduct are subject to discipline which, in serious matters, could result in the suspension of the right to practice law or even the permanent loss of that right. Therefore, it takes more than a charge of misconduct to justify the imposition of discipline. It takes evidence — proof of misconduct — to justify discipline of a lawyer, just as it takes proof for any member of society to be penalized for wrongdoing.
A lawyer may lose the trust and confidence of a client for various reasons. Although the client may become dissatisfied, the circumstances may not constitute grounds for disciplinary action. A lawyer may be disciplined only if the provisions of the Rules of Professional Conduct have been violated.
A complaint of professional misconduct against a lawyer is a serious matter. It immediately puts into action the investigative and adjudicative processes of the Disciplinary Board. The Disciplinary Board will not pursue anonymous complaints and once a complaint has been filed, it cannot be withdrawn. The decision to close the file is then in the hands of the Disciplinary Board.
An honest disagreement about how a case should be handled — or should have been handled — does not constitute misconduct. Neither does a mistake. Lawyers are human. Sometimes they make mistakes just like everyone else. If the mistake causes a loss, the client may be able to recover the loss from the lawyer through civil remedies. But a mistake or an error in judgment is not unethical conduct.
There are situations that a client may find very annoying, but which do not constitute misconduct. For example, the lawyer’s failure to fully explain what is going to happen to the client’s case, or perhaps the lawyer’s failure to respond to the client’s telephone calls inquiring about the progress of the case. The State Bar provides written information on dealing with the attorney from the beginning of the relationship until it ends. http://www.nmbar.org/Public/caap.html
If you believe your complaint is well founded, by all means make it. On the other hand, if you feel that your grievance may be the result of inadequate communications, lack of sufficient agreement or some misunderstanding, it may be that the problem can best be resolved by a frank talk with the lawyer. Tell your attorney of your dissatisfaction and ask for a full explanation of the matter involved. Such a discussion will often eliminate the problem or lead to a solution.
Fee matters are not ordinarily a basis for discipline for a lawyer because they usually do not involve questions of ethics or professional misconduct. However, in some cases they do involve professional misconduct, such as where the fee charged is either illegal or clearly excessive. In those cases where the attorney is found to have acted unethically, discipline will follow.
Most fee disputes result from a lack of understanding by the client of the basis for the fee and the factors that go into the charge made by the lawyer for his or her services. Often, when this occurs, the attorney failed to make the client aware of what is involved. Clients are often reluctant or embarrassed to discuss fees with their lawyer. They should not be.
Situations in which the parties are not able to reach an understanding and in which there is a controversy over fees, like other disputes over the value of services rendered, may be resolved by court action.
The Disciplinary Board does not have the authority to compel arbitration of a fee dispute. However, the State Bar General Counsel’s office does provide fee arbitration. If both you and your attorney agree to submit the matter to arbitration and to be bound by the result, the dispute can be resolved quickly. There is no cost for this service. http://www.nmbar.org/Public/feearbitration.html. If you wish to consider arbitration of a fee dispute, you may call the State Bar of New Mexico at (505) 797-6054 or 1-800-876-6657 for more information.
How To File A Complaint
A formal complaint should not be filed with the State Bar of New Mexico; it should be filed with the Supreme Court entity called the Disciplinary Board. You may file a disciplinary complaint by submitting a letter signed by you, preferably under oath and notarized, setting forth the facts on which the complaint is based. No special format or language is necessary. A complaint form is available at the office of the Disciplinary Board and will be mailed to you upon written or telephone request. To file a formal complaint with the Disciplinary Board you can go to www.nmdisboard.org or call (505) 842-5781, in Albuquerque. You should attach to your complaint copies of any documents or other materials which will aid in understanding the complaint. Written complaints should be sent to:
The Disciplinary Board
Post Office Box 1809
Albuquerque, New Mexico 87103-1809
What Types of Discipline Can Be Imposed?
The Disciplinary Board can impose five different types of sanctions against an attorney:
The Chief Disciplinary Counsel* may issue a non-public informal admonition informing the lawyer that the Disciplinary Board has determined that his conduct was improper and warning him to see that such conduct does not recur. Although the informal admonition is not announced to the public, the complainant is informed of the disposition of his complaint.
The Disciplinary Board may issue a public formal reprimand to the attorney.
The Supreme Court may publicly censure the attorney.
The Supreme Court may prohibit the attorney from working as an attorney for a certain period of time. This is called a suspension.
The Supreme Court may revoke an attorney’s license to practice law. This is called a disbarment.
*This Chief Disciplinary Counsel may write to an attorney and caution him or her about his or her conduct when there is insufficient evidence or jurisdiction to take further formal action but when, nonetheless, there is cause for concern. Letters of caution are not sanctions and they do not denote a finding of any violation of the Rules of Professional Conduct.
What You May Expect If You File a Complaint
The Disciplinary Board will be genuinely concerned with your complaint. The complaint will receive full and prompt attention. No complaint will be disregarded. Some complaints, however, are dismissed after a preliminary review because they do not concern professional misconduct.
You may be asked for one or more interviews by an investigating attorney. You may be asked to provide documentary proof such as cancelled checks. If there is a hearing, you will be allowed to be present.
You may be called as a witness to testify under oath at any disciplinary hearing that is held on your complaint. The procedures involved will take time, and in some instances, a rather long period of time. You will be notified of the final outcome of your complaint.
What You Should Not Expect
With the exception of formal discipline, an attorney’s discipline history, including filed complaints, is confidential. You should not expect to receive, in the disciplinary proceeding, any money damages or reimbursement of loss.
You should not expect to receive any individual legal advice or services from the Disciplinary Board, a local bar association, or the State Bar of New Mexico.
It is the policy of the Disciplinary Board not to give detailed reasons for the final disposition that is made of a complaint.Special Note - This information has been issued to inform and not to advise. It is based on New Mexico law in effect at the time of writing. The statements are general and individual facts in any given situation may alter their application or involve other laws not referred to here. You should always seek advice from an attorney if any questions arise. This document is intended as a public service and is not an endorsement of any attorney or law firm.