A.Initiation. Chief disciplinary counsel, deputy disciplinary counsel or assistant disciplinary counsel shall initiate all investigations, whether upon complaint or otherwise. Investigations shall be conducted by disciplinary counsel staff attorneys or, when necessary because of a conflict of interest referred by chief disciplinary counsel to an appropriate special assistant disciplinary counsel or commissioned investigator, for investigation, report, recommendations, and, when appropriate, prosecution. Investigations, examinations and verifications shall be conducted so as to preserve the private confidential nature of the lawyer's records insofar as is consistent with these rules and law.B.Disposition prior to formal investigation. If the complaint does not set forth allegations which if true state reasonable cause to believe that a respondent-attorney has violated the Rules of Professional Conduct, or, if in the discretion of chief disciplinary counsel or chief disciplinary counsel's designee, sufficient proof of a violation of the Rules of Professional Conduct is lacking, a disciplinary counsel staff attorney may dismiss the complaint, provided that all doubts shall be resolved in favor of conducting a formal hearing. Within thirty (30) days after receipt of a complaint, if the allegations are serious enough to warrant a formal investigation the office of disciplinary counsel shall notify the respondent-attorney of the nature of the complaint. Upon good cause shown to the Supreme Court, the Court may order the delay in notifying the respondent-attorney of the pending investigation. Upon the request of any person affected by a dismissal, or sua sponte, the chair of the Disciplinary Board or a board member designated by the chair may, at any time, order further investigation of a complaint that has been dismissed by a disciplinary counsel staff attorney. C.Procedure of formal investigation. Prior to the filing of a formal specification of charges with the Disciplinary Board the respondent-attorney shall always be advised of the general nature of the allegations and shall be given a fair opportunity to present any matter of fact or mitigation the respondent-attorney wants disciplinary counsel to consider. With the consent of the respondent-attorney, disciplinary counsel may conduct any part of the investigation in the form of an informal hearing allowing parties to present evidence and requiring them to answer questions in compliance with Rule 17-306 NMRA.D.Investigation report. If disciplinary counsel determines the file should be reviewed by a reviewing officer pursuant to Paragraph B of Rule 17-104 NMRA, disciplinary counsel shall write a brief summary report to include the following: (1) a summary statement of the facts of the situation with reference to the provisions of the Rules of Professional Conduct or other rule or law claimed to have been violated, and a statement of whether or not disciplinary counsel believes that there is probable cause to believe any violation has occurred;(2) a statement of the opposing positions of the parties and of the facts disciplinary counsel believes would find support in the evidence, together with an analysis of the probable result of a hearing in the event formal charges were filed; and(3) recommendations for further handling in accordance with this rule.E.Review prior to filing formal charges. Any deputy disciplinary counsel or assistant counsel shall present a draft of the proposed specification of charges to chief disciplinary counsel or, when necessary, to chief disciplinary counsel's designee, prior to filing the specification of charges. Chief disciplinary counsel or, when necessary, chief disciplinary counsel's designee, shall either (1) approve the filing of the specification of charges; or(2) recommend an alternate course of action consistent with these rules.F.Special assistant disciplinary counsel; special board. If, after chief disciplinary counsel reviews the initial response to a complaint and determines that the matter cannot be summarily dismissed, and further investigation pursuant to Paragraph A of this rule appears appropriate, whether upon complaint filed or otherwise, relating to disciplinary counsel, a member of a hearing committee, or a member of the board; relating to a spouse, parent, child, or sibling of disciplinary counsel or a board member; or relating to a partner or associate of a board member, the matter shall proceed in accordance with these rules except that (1) chief disciplinary counsel or, when necessary, chief disciplinary counsel's designee shall refer the matter to a special assistant disciplinary counsel who is not a paid employee of the board;(2) special assistant disciplinary counsel shall proceed in accordance with these rules in investigating and, if appropriate, prosecuting the complaint;(3) if special assistant disciplinary counsel prosecutes the matter and a hearing must be held, the Chief Justice shall be notified by special assistant disciplinary counsel and shall appoint a special board consisting of three (3) members of the bar who are not members of the board; and(4) the special board shall perform the functions of a hearing committee under these rules and shall submit its recommendations directly to the Supreme Court for review under Rule 17-316 NMRA.N.M. R. Gov. Disc. 17-307
As amended, effective 10/25/1996;11/30/2004; as amended by Supreme Court Order No. 06-8300-032, effective 1/15/2007; by Supreme Court Order No. 12-8300-008, effective 4/5/2012; as amended by Supreme Court Order No. 13-8300-045, effective 12/31/2013. ANNOTATIONS The 2013 amendment, approved by Supreme Court Order No. 13-8300-045, effective December 31, 2013, eliminated the designation of attorneys by the Disciplinary Board to investigate or review complaints; provided that investigations shall be conducted by disciplinary counsel staff; provided for the appointment of special assistant disciplinary counsel; in Paragraph A, in the first sentence, after "disciplinary counsel of assistant", added "disciplinary" and after "assistant disciplinary counsel" deleted "designated by the chair of the Disciplinary Board" and in the second sentence, after "staff attorneys or", added "when necessary because of a conflict of interest", after "conflict of interest referred", added "by chief disciplinary counsel", after "to an appropriate", added "special", after "appropriate special assistant", added "disciplinary", after "investigator for", added "investigation", and after "report, recommendations", added "and, when appropriate, prosecution"; in Paragraph D, in the first sentence, after "Professional Conduct", added "or, if in the discretion of chief disciplinary counsel or chief disciplinary counsel's designee, sufficient proof of a violation of the Rules of Professional Conduct is lacking"; in Paragraph E, after "disciplinary counsel or assistant counsel", deleted "designated by the chair of the Disciplinary Board"; in Paragraph F, in the title of the paragraph, after "Special", added "assistant disciplinary" and at the beginning of the sentence, after "If", deleted "an" and added "after chief disciplinary counsel reviews the initial response to a complaint and determines that the matter cannot be summarily dismissed, and further", in Subparagraph (1) of Paragraph F, at the beginning of the sentence, deleted "the board" and added "chief disciplinary counsel or, when necessary, chief disciplinary counsel's designee", after "chief disciplinary counsel's designee", deleted "the board", after "chief disciplinary counsel's designee shall", deleted "appoint" and added "refer the matter to", after "refer the matter to a special", added "assistant disciplinary", and after "special assistant disciplinary counsel who", added the remainder of the sentence; in Subparagraph (2) of Paragraph F, at the beginning of the sentence added "special assistant disciplinary counsel", and after "shall proceed in accordance with", deleted "Paragraph B of Rule 17-105 NMRA" and added the remainder of the sentence; in Subparagraph (3) of Paragraph F, at the beginning of the sentence, deleted "and if the respondent is a member of the board or is a spouse, parent, child, or sibling of a board member, the chief justice" and added "if special assistant disciplinary counsel prosecutes the matter and a hearing must be held, the Chief Justice shall be notified by special assistant disciplinary counsel and", and after "members of the bar", deleted "to hear the case and to report its findings, conclusions and recommendations directly to the Supreme Court" and added "who are not members of the board; and"; and added Subparagraph (4) of Paragraph F. The 2012 amendment, approved by Supreme Court Order No. 12-8300-008, effective April 5, 2012, permitted a draft of the proposed specification of charges to be presented to the chief disciplinary counsel's designee; in Paragraph E, in the first sentence, after "charges to chief disciplinary counsel", added "or, when necessary, to chief disciplinary counsel's designee" and in the second sentence, after "Chief disciplinary counsel", added "or, when necessary, chief disciplinary counsel's designee". The 2006 amendment, approved by Supreme Court Order No. 06-8300-032, effective January 15, 2007, revised Paragraph D to require that probable cause of a violation of the Rules of Professional Conduct be found by "disciplinary counsel" instead of an investigator. The 2004 amendment, effective November 30, 2004, inserted "or a board member designated by the chair" and substituted "further" for "an" in the last sentence of Paragraph B. The 1996 amendment, effective October 25, 1996, in Paragraph A, substituted "disciplinary counsel staff attorneys" for "chief disciplinary counsel personally" in the second sentence; in Paragraph B, substituted "respondent-attorney" for "attorney" throughout, substituted "a disciplinary counsel staff attorney" for "chief disciplinary counsel" near the end of the first sentence, substituted "a formal investigation" for "an investigation" and "office of disciplinary counsel" for "Disciplinary Board" in the second sentence, and substituted "a disciplinary counsel staff attorney" for "staff" in the last sentence; rewrote Paragraph D; deleted former Paragraph E relating to counsel's recommendation and added current Paragraph E; and made gender neutral and other stylistic changes throughout the rule. Am. Jur. 2d, A.L.R. and C.J.S. references. - 7 Am. Jur. 2d Attorneys at Law § 88. Propriety of attorney's resignation from bar in light of pending or potential disciplinary action, 54 A.L.R.4th 264. 7A C.J.S. Attorney and Client §§ 93, 95.