Rule 17-206. Types of discipline.

A. Types of discipline. A violation of the Rules of Professional Conduct or of these rules shall be grounds for (1) disbarment by the Supreme Court; (2) suspension by the Supreme Court for a time certain with automatic reinstatement; (3) indefinite suspension by the Supreme Court with reinstatement upon application as provided under Rule 17-214(B) NMRA unless timely objections are filed; (4) public censure by the Supreme Court; (5) formal reprimand by the Disciplinary Board; (6) informal admonition (a) by disciplinary counsel without formal hearing and when acquiesced in by the respondent and approved by a hearing committee reviewing officer; or (b) by the Disciplinary Board upon recommendation of a hearing committee after formal disciplinary proceedings; or (7) requirement by the Disciplinary Board that an attorney successfully pass the multi-state professional responsibility examination given by the Board of Bar Examiners the next time that it is given or be suspended for a period to be prescribed by the Disciplinary Board. B. Probation. In addition to the foregoing, if the record discloses that a respondent can still perform legal services with proper supervision (1) the Supreme Court, in its discretion and under such conditions as it may specify, may impose probation or other conditions as a type of discipline by itself or may defer the effect of the sanctions specified in Subparagraphs (A)(1), (2), (3) and (4) of this rule, in whole or in part, or the effect of an indefinite suspension imposed on account of incapacity under Rule 17-208 NMRA, upon condition that the respondent accept probationary status for such time as the Court may prescribe, and that the respondent faithfully fulfills all of the conditions thereof; or (2) if the discipline is imposed under Subparagraph (A)(5) or (6) of this rule, the Disciplinary Board may in its discretion impose probation or other conditions as a type of discipline by itself or may defer the sanctions imposed by that subparagraph. C. Restitution. An attorney who has been disciplined under this rule may be required to make restitution and, also, to reimburse the Client Protection Fund of the State Bar of New Mexico for any expenditure that it has made arising out of the attorney’s misconduct. Any order of restitution does not preclude damages being awarded by a court of competent jurisdiction. The order of restitution may be set forth by the Court in the order imposing discipline, or in a separate order by the Court. An order of restitution shall constitute an enforceable judgment as defined by the law, and the person in whose favor the order is entered may enforce any unpaid judgment under the remedies at law to any judgment creditor. Both a hearing committee and the Disciplinary Board may recommend that a respondent make restitution and reimburse the Client Protection Fund of the State Bar of New Mexico for any expenditure that it has made arising out of the attorney’s misconduct, but all such recommendations must be approved and ordered by the Court. D. Publication of discipline. Disbarments, definite and indefinite suspensions, and public censures shall be filed in the Supreme Court clerk’s office and shall be published in the Bar Bulletin and New Mexico Appellate Reports. All formal opinions shall be published in accordance with Rule 12-405(C) NMRA. Formal reprimands by the Disciplinary Board shall be published in the Bar Bulletin and shall be filed in the Supreme Court clerk's office. E. Effective date. The effective date of any discipline imposed under this rule shall be set forth in the order of the Supreme Court or Disciplinary Board. F. Supreme Court order. Any order of the New Mexico Supreme Court suspending or disbarring an attorney shall contain a provision requiring the attorney to comply with the provisions of Rule 17-212 NMRA. G. Contempt. Any condition of probation or terms of any other order of the Disciplinary Board or the Supreme Court imposing discipline under this rule shall be enforceable by the contempt powers of the Supreme Court. Failure by an attorney disciplined under this rule to comply with any such terms or conditions shall be brought to the attention of the Supreme Court by the chief disciplinary counsel in a verified motion for order to show cause. If the Supreme Court finds good cause to enter an order to show cause why the attorney should not be held in contempt, it may direct the attorney to appear before the Court to show cause why additional discipline should not be imposed, or if factual allegations are in dispute, remand the matter to the Disciplinary Board for an expedited evidentiary hearing under Rule 17-314(E) NMRA. If held in contempt of court, the attorney may be censured, fined, suspended, or disbarred. H. Alternatives to formal discipline; diversion programs. (1) Referral to Program. In accordance with the terms of this rule as set forth below, upon recommendation of disciplinary counsel after approval by a hearing committee reviewing officer, and with the consent of the respondent-attorney, disciplinary counsel can offer a respondent-attorney participation in an alternative to formal discipline program ("diversion"). Diversion may include the following: (a) mediation between the respondent-attorney and the respondent-attorney's client by a mediator selected by disciplinary counsel; (b) fee arbitration; (c) law office management assistance or monitoring; (d) evaluation and treatment for substance abuse, psychological evaluation and treatment, medical evaluation and treatment, or other similar evaluation and treatment in coordination with and through the New Mexico Judges and Lawyers Assistance Program ("JLAP") or an equivalent assistance program; (e) auditing of, education on, and monitoring of the respondent-attorney's practice or accounting procedures, including the respondent-attorney's IOLTA; (f) continuing legal education in excess of the amount otherwise required of all practicing attorneys in New Mexico including, but not limited to, ethics school (a/k/a/ “Ethicspalooza”); (g) requiring the respondent-attorney to retake the Multistate Professional Responsibility Examination; or (h) any other program authorized by the Disciplinary Board or the Supreme Court. (2) Participation in the program permitted. A respondent-attorney may participate in a diversion program in cases where (a) the alleged violations of the Rules of Professional Conduct are relatively minor; (b) there is little likelihood that the respondent-attorney will harm the public during the period of participation; (c) disciplinary counsel can adequately supervise the conditions of diversion; and (d) participation in the diversion program is likely to improve the respondent- attorney’s future professional conduct and accomplish the goals of attorney discipline and the diversion program. (3) Participation in the program prohibited. A respondent-attorney will not be offered nor able to participate in diversion when (a) the presumptive form of discipline for the alleged violations, as set forth in the ABA Standards for Imposing Lawyer Sanctions is greater than a reprimand, taking into account all relevant mitigating and aggravating factors; (b) the misconduct involves misappropriation of funds or property of a client or a third party; (c) the misconduct involves a felony charge or conviction, or an alleged or proven criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects; (d) the misconduct involves dishonesty, deceit, misrepresentation, or fraud; (e) the misconduct involves false statements of law or fact, or the tendering of false evidence to a tribunal; (f) the misconduct resulted in actual injury (loss of money, legal rights, or valuable property rights) to a client or other person, unless full restitution is made prior to the respondent-attorney entering into the diversion program; (g) the respondent-attorney has been publicly disciplined in the last three (3) years; (h) the matter is of the same nature as misconduct for which the respondent- attorney has been disciplined in the last five (5) years; or (i) the misconduct is part of a pattern of similar misconduct. (4) Diversion Agreement. If a respondent-attorney agrees to an offer of diversion as provided by this rule, the terms of the diversion shall be set forth in a written consent agreement prior to the filing of a specification of charges as otherwise provided for in the Rules Governing Discipline. The agreement shall (a) recite the issues and Rules of Professional Conduct at issue which led to the referral of the matter to diversion; (b) specify the type of program, or programs, to which the respondent- attorney shall be diverted; (c) specify the goals, general purpose, and expected outcome of the diversion program; (d) specify the manner in which compliance is to be monitored; (e) set forth any requirement for payment of restitution or cost; (f) provide for the affirmative agreement to all terms by the respondent- attorney, including confirmation that the respondent-attorney understands that by agreeing the respondent-attorney is waiving the right to a formal hearing and voluntarily and without coercion, force, or threat agrees to the diversion program; and (g) provide for the signature of the respondent-attorney and disciplinary counsel. The agreement, along with the hearing committee reviewing officer’s approval of the proposed diversion and any underlying investigation, shall then be tendered to the chair of the Disciplinary Board, or the chair's designee, for review and approval. The chair, or the chair’s designee, may approve or reject the agreement or may recommend and approve a modified agreement if approved by disciplinary counsel and the respondent- attorney. If the chair, or the chair’s designee, rejects the agreement or proposes a modified agreement that is not approved by both disciplinary counsel and the respondent-attorney, the agreement, and any and all factual stipulations or admissions or legal conclusions made in connection with the agreement shall be withdrawn and cannot be used against the respondent-attorney or disciplinary counsel in any subsequent disciplinary proceedings or in any other judicial proceeding. Thereafter, the disciplinary matter shall proceed in accordance with the Rules Governing Discipline as if no diversion program was proposed or accepted. (5) Costs of the diversion. The respondent-attorney shall pay all the direct costs incurred in connection with participation in any diversion program. The respondent-attorney shall also pay the administrative cost of the proceeding as determined by the Disciplinary Board. (6) Effect of diversion. When the recommendation for diversion becomes final, the respondent-attorney shall enter into the diversion program, or diversion programs, and complete the requirements thereof. Upon the respondent-attorney’s entry into the diversion program, or diversion programs, the underlying matter shall be held by disciplinary counsel and classified as “pending successful completion of diversion.” Diversion shall not constitute a form of discipline. (7) Effect of successful completion of the diversion program. If disciplinary counsel determines that the respondent-attorney has successfully completed all aspects of the agreed upon diversion program, the matter will be closed and any inquiry concerning the complaint, or complaints, that led to the investigation and diversion program will be handled by disciplinary counsel in the same manner as a dismissed complaint, subject to the fact that any complaining party will be notified by disciplinary counsel that the respondent-attorney was referred to a diversion program and successfully completed the program. Otherwise, the fact of the complaint, the investigation, and the diversion agreement and program will be held confidential by disciplinary counsel in accordance with Rule 17-304 NMRA, subject to disciplinary counsel’s need to make any inquiries or disclosures necessary to achieve, determine, and report successful completion of the diversion program. (8) Breach of diversion agreement. If disciplinary counsel has reason to believe that the respondent-attorney has breached the diversion agreement, disciplinary counsel shall notify the respondent-attorney of the apparent breach and the respondent- attorney will have the opportunity to respond. If disciplinary counsel is not satisfied with the respondent-attorney’s response, the matter shall be referred to a three (3)-member panel of the Disciplinary Board for hearing. Disciplinary counsel will have the burden by a preponderance of the evidence to establish the breach itself and the materiality of the breach, and the respondent-attorney will have the burden by a preponderance of the evidence to establish justification for the breach. The hearing shall proceed before the Disciplinary Board panel in the same manner as formal hearings before a hearing committee under Rule 17-213(D) NMRA, subject to the fact that the matter remains confidential under subparagraph (10) of this paragraph. Within fourteen (14) days of the court reporter notifying the parties that the transcript of hearing is complete, disciplinary counsel and the respondent-attorney shall submit to the Disciplinary Board panel proposed written findings of fact, conclusion of law, and a recommendation. Within thirty (30) days of receipt of the parties’ submissions, the Disciplinary Board panel will enter its findings of fact, conclusions of law, and determination. If the Disciplinary Board panel determines that the respondent-attorney has materially breached the diversion agreement, the diversion agreement shall be terminated by the Disciplinary Board, the complaint or complaints that led to the diversion agreement shall be reclassified as “open,” and the matter will proceed in accordance with the Rules Governing Discipline. If the Disciplinary Board determines that the respondent-attorney breached the diversion agreement, but the breach was immaterial, the Disciplinary Board may, to the extent it deems necessary, modify the original diversion agreement to obviate any future immaterial breaches or it may simply order that the original diversion agreement remain in full force and effect. If the Disciplinary Board determines that the respondent-attorney did not breach the diversion agreement, the original diversion agreement shall remain in full force and effect and the matter will proceed under the terms of the original diversion agreement. (9) Effect of rejection of recommendation for diversion. If a respondent- attorney rejects a diversion offer, the matter shall proceed as otherwise provided in the Rules Governing Discipline. (10) Confidentiality. Subject to notice to the complaining party of the status of the complaint as otherwise provided for in the Rules Governing Discipline, complaints against respondent-attorneys, including the fact of the complaint, the investigation, and the diversion agreement and program will be held confidential by disciplinary counsel in accordance with Rule 17-304 NMRA unless and until the diversion agreement is breached by the respondent-attorney and terminated as set forth in this rule, and the matter thereafter proceeds to formal disciplinary charges or otherwise becomes public in accordance with Rule 17-304 NMRA.