2023 New Mexico Statutes › Chapter 36 - Attorneys › Article 2 - Regulation of Attorneys › Section 36-2-27 - Practice without admission; contempt of court; foreign attorneys.

No person shall practice law in a court of this state, except a magistrate court, nor shall a person commence, conduct or defend an action or proceeding unless he has been granted a certificate of admission to the bar under the provisions of Chapter 36 NMSA 1978. No person not licensed as provided in that chapter shall advertise or display any matter or writing whereby the impression may be gained that he is an attorney or counselor at law or hold himself out as an attorney or counselor at law, and all persons violating the provisions of that chapter shall be deemed guilty of contempt of the court in which the violation occurred, as well as of the supreme court of the state; provided, however, that nothing in this section shall be construed to prohibit persons residing beyond the limits of this state, otherwise qualified, from assisting resident counsel in participating in an action or proceeding.
History:
Laws 1909, ch. 53, § 26; Code 1915, § 352; Laws 1917, ch. 48, § 4; 1925, ch. 24, § 1; 1927, ch. 64, § 1; C.S. 1929, § 9-126; Laws 1935, ch. 124, § 1; 1941 Comp., § 18-126; 1953 Comp., § 18-1-26; Laws 1957, ch. 106, § 1; 1999, ch. 272, § 1.
ANNOTATIONS
Compiler's notes.
— The 1915 Code compilers substituted "this chapter" for "this act," presumably to refer to Code 1915, ch. 8, §§ 327 to 376, the operative provisions of which are compiled as 36-2-10 to 36-2-19, 36-2-21, 36-2-23, 36-2-24 and 36-2-27 NMSA 1978.
The preliminary clause of Laws 1935, ch. 124, § 1, read: "Section 1. That Section 126 of chapter 9 of the New Mexico Statutes Annotated, Compilation of 1929 be amended by adding thereto the following." The provisions of the present final proviso of the section followed that clause. The validity of this method of amendment may be affected by N.M. Const., art. IV, § 18, which provides that each section of a law which is amended shall be set out in full.
The provisions of the final proviso of this section were held to be in conflict with former Rule II(A)9 of Rules Governing Admission to the Bar, adopted effective January 12, 1934, which provided in part that no person, other than one admitted on certificate from another state, should be granted a license to practice law in New Mexico or should be entitled to take an examination for admission to the bar unless such person had graduated from a law school approved by the American Bar Association.
See
In re Sedillo, 66 N.M. 267, 347 P.2d 162 (1959).
For present rule governing qualifications of applicants for admission to the bar,
see
Rule 15-103.
Cross references.
— For rules governing bar examiners, bar examinations and admission to the bar,
see
Rule 15-101 et seq.
For promulgation of rules as to requirements for admission to practice of law by supreme court generally,
see
Rule 15-102.
The 1999 amendment,
effective June 18, 1999, substituted "a magistrate court" for "courts of justice of the peace", substituted "unless he has been granted" for "in any of said courts unless he be an actual and bona fide resident of the state of New Mexico and unless he shall have first obtained a temporary license as herein provided or shall have been granted", and substituted "Chapter 36 NMSA 1978" for "this chapter" in the first sentence; and deleted a further proviso from the end of the section.
Constitutionality of last proviso in section.
— The last proviso in this section, which sets educational requirements for admission to the bar which are less than those found in rules governing admission to the bar, is an unconstitutional invasion of the judicial powers.
In re Sedillo
, 1959-NMSC-095, 66 N.M. 267, 347 P.2d 162 (decided under former Rules Governing Admission to the Bar).
Rule 24-101 NMRA applies to all courts of this state without exception.
— The practice of law in any court is limited to duly licensed attorneys who are members of the state bar or otherwise authorized by the supreme court's rules in specific, limited circumstances. The limited exceptions that allow certain individuals without a bar license to practice law in New Mexico courts require that a proper authority must be notified in writing of their non-licensed status, the state bar in the case of an out-of-state attorney and the judge presiding over the proceeding in the case of a clinical law student.
State v. Rivera
, 2012-NMSC-003, 268 P.3d 40,
rev'g in part
, 2010-NMCA-109, 149 N.M. 406, 249 P.3d 944.
Prosecution of criminal case by a non-licensed individual.
— Where an assistant district attorney and an individual who was not licensed to practice law in New Mexico participated in the prosecution of a DWI case in metropolitan court; the assistant district attorney was present for the entire trial and personally conducted most of the trial; and the unlicensed individual examined only one of the state's witnesses, defendant was not prejudiced by the unlicensed individual's impermissible participation at trial.
State v. Rivera
, 2012-NMSC-003, 268 P.3d 40,
rev'g in part
2010-NMCA-109, 149 N.M. 406, 249 P.3d 944.
Guardians ad litem.
— The provision of Rule 1-017C NMRA allowing a child's representative to sue or defend on the child's behalf does not constitute an exception to the general prohibition against unauthorized practice of law.
Chisholm v. Rueckhaus
, 1997-NMCA-112, 124 N.M. 255, 948 P.2d 707, cert. denied, 124 N.M. 268, 949 P.2d 282.
When filling in blanks in legal instruments constitutes "practice of law".
— Filling in blanks in legal instruments where the forms have been drafted by attorneys, and where filling in the blanks requires only the use of common knowledge regarding the information to be inserted, does not constitute the "practice of law"; but when the filling in of the blanks affects substantial legal rights, and if the reasonable protection of such rights requires legal skill and knowledge greater than that possessed by the average citizen, then such practice is restricted to members of the legal profession.
State Bar v. Guardian Abstract & Title Co.
, 1978-NMSC-016, 91 N.M. 434, 575 P.2d 943.
Likewise, where separate additional charges made by title company for filling in blanks.
— The making of separate additional charges to fill in blanks on legal instruments by employees of a title company is considered the "practice of law," for the reason that it would place emphasis on conveyancing and legal drafting as a business rather than on the business of the title company.
State Bar v. Guardian Abstract & Title Co.
, 1978-NMSC-016, 91 N.M. 434, 575 P.2d 943.
Where title company personnel use information to advise.
— Persons working for title companies who confer with parties to obtain facts and information about their personal and property status, who obtain more information than that necessary to fill in the blank spaces in standardized forms used for company purposes and who use the information instead for the purpose of advising the parties of their rights and the action to be taken concerning them are engaging in the "practice of law," such practice being restricted to members of the legal profession.
State Bar v. Guardian Abstract & Title Co.
, 1978-NMSC-016, 91 N.M. 434, 575 P.2d 943.
Layman may not hold self out as expert or consultant at closing loans.
— A layman, regardless of whether he is expert at closing loans, may not hold himself out to the public as an expert or consultant in this field or describe himself by any similar phrase which implies that he has a knowledge of the law.
State Bar v. Guardian Abstract & Title Co.
, 1978-NMSC-016, 91 N.M. 434, 575 P.2d 943.
Power to bring suits to prevent unauthorized practice of law.
— A state bar, even though it is not a corporate "person," may have conferred upon it the power to bring suits to prevent the unauthorized practice of law to protect both itself and the public. Statute creating the board of bar commissioners and giving it power to make and enforce rules "generally for the control and regulation of . . . the state bar" necessarily gave it the power to seek the court's help to prevent the unauthorized practice of law.
State Bar v. Guardian Abstract & Title Co.
, 1978-NMSC-016, 91 N.M. 434, 575 P.2d 943.
The board of bar commissioners and the committee on unauthorized practice of law were both empowered to maintain and prosecute suits to prevent the unauthorized practice of law, but under circumstances where suit is not entered by the bar association or its branches and it becomes necessary for individual attorneys to act in the public interest, the individuals have standing to bring action.
State Bar v. Guardian Abstract & Title Co.
, 1978-NMSC-016, 91 N.M. 434, 575 P.2d 943.
Metropolitan court.
— Where an assistant district attorney and a person who was not licensed to practice law entered their appearances on behalf of the state in defendant's DWI bench trial in metropolitan court; the unlicensed person conducted the direct and redirect examination of the supervising officer of the roadblock where defendant was arrested; and the unlicensed person was supervised by a licensed attorney at all times, did not commence the prosecution of defendant, and did not exert control over the prosecution, the participation of the unlicensed person in defendant's case in metropolitan court was expressly authorized by Section 36-2-27 NMSA 1978.
State v. Rivera
, 2010-NMCA-109, 149 N.M. 406, 249 P.3d 944,
aff'd in part, rev'd in part
, 2012-NMSC-003, 268 P.3d 40.
Arrangements in which a credit bureau represents clients on a contingency fee basis constitutes unlawful practice of law.
State ex rel. Norvell v. Credit Bureau of Albuquerque, Inc.
, 1973-NMSC-087, 85 N.M. 521, 514 P.2d 40.
Medical malpractice actions.
— A non-attorney parent was required to be represented by counsel in order to bring a medical malpractice claim on behalf of his minor son.
Chisholm v. Rueckhaus
, 1997-NMCA-112, 124 N.M. 255, 948 P.2d 707, cert. denied, 124 N.M. 268, 949 P.2d 282.
Right of unlicensed person to practice in magistrate court.
— The court would not permit the practice of law by unlicensed magistrate courts' lawyers who are unfettered by the strictures which apply to the rest of the legal profession.
State ex rel. Norvell v. Credit Bureau of Albuquerque, Inc.
, 1973-NMSC-087, 85 N.M. 521, 514 P.2d 40.
The indicia of practice of law,
insofar as court proceedings are concerned, include the following: (1) representation of parties before judicial or administrative bodies, (2) preparation of pleadings and other papers incident to actions and special proceedings, (3) management of such action and proceeding, and noncourt-related activities such as (4) giving legal advice and counsel, (5) rendering a service that requires the use of legal knowledge or skill and (6) preparing instruments and contracts by which legal rights are secured.
State ex rel. Norvell v. Credit Bureau of Albuquerque, Inc.
, 1973-NMSC-087, 85 N.M. 521, 514 P.2d 40.
Meaning of "practice of law".
— It is the character of the services rendered and not the denomination of the tribunal before whom they are rendered which controls in determining whether such services constitute the practice of law. 1958 Op. Att'y Gen. No. 58-200.
The practice of law, as generally understood, is the doing or performing of services in a court of justice, in any matter pending therein, throughout its various stages, and in conformity with the adopted rules or procedure, but, is not confined to performing services in an action or proceeding pending in courts of justice, and, in a larger sense, it includes legal advice and counsel, and the preparation of legal instruments and contracts by which legal rights are secured, although such matter may or may not be pending in a court. To "practice law" is to carry on the business of an attorney at law; to do or practice that which an attorney or counselor at law is authorized to do and practice; to exercise the calling or profession of the law, usually for the purpose of gaining a livelihood, or at least for gain; to make it one's business to act for, and by the warrant of, others in legal formalities, negotiations, or proceedings. 1960 Op. Att'y Gen. No. 60-173.
If a layman or an attorney appears in a representative capacity as an advocate in hearings before any commissioner, hearing officer, referee, board, body, committee or commission of the state of New Mexico which considers legal questions, applies legal principles and weighs facts under legal rules, and, in that representative capacity, files pleadings, qualifies, examines and cross-examines witnesses, proves and introduces exhibits into evidence or performs any of the other duties normally associated with an attorney requiring specialized training and skill, such layman or attorney is practicing law within the meaning of the term as it is used in this section. 1958 Op. Att'y Gen. No. 58-200 (superseded by statute,
see
Section 12-8-11 NMSA 1978).
All foreign licensed attorneys must associate themselves with resident counsel
before commencing, conducting or otherwise participating in any administrative proceeding. 1958 Op. Att'y Gen. No. 58-200 (superseded by statute,
see
Section 12-8-11 NMSA 1978).
Law reviews.
— For article, "Constitutional Limitations on the Exercise of Judicial Functions by Administrative Agencies,"
see
7 Nat. Resources J. 599 (1972).
For note, "Group and Prepaid Legal Services in New Mexico,"
see
4 N.M.L. Rev. 225 (1974).
For note, "The Unauthorized Practice of Law in New Mexico,"
see
9 N.M.L. Rev. 403 (1979).
Am. Jur. 2d, A.L.R. and C.J.S. references. —
7 Am. Jur. 2d Attorneys at Law §§ 8 to 11.
Tax matters, services in connection with, as practice of law, 9 A.L.R.2d 797.
Land contracts: drafting, or filling in blanks in printed forms, of instruments relating to land by real estate agents, brokers, or managers as constituting practice of law, 53 A.L.R.2d 788.
Trust company's acts as fiduciary as practice of law, 69 A.L.R.2d 404.
Title examination activities by lending institution, insurance company, or title and abstract company, as illegal practice of law, 85 A.L.R.2d 184.
Handling, preparing, presenting, or trying workmen's compensation claims or cases as practice of law, 2 A.L.R.3d 724.
Representation of another before state public utilities or service commission as involving practice of law, 13 A.L.R.3d 812.
Activities of law clerks as illegal practice of law, 13 A.L.R.3d 1137.
Collection agency: operation of collection agency as unauthorized practice of law, 27 A.L.R.3d 1152.
Books and forms: sale of books or forms designed to enable layman to achieve legal results without assistance of attorney as unauthorized practice of law, 71 A.L.R.3d 1000.
Drafting of will or other estate-planning activities as illegal practice of law, 22 A.L.R.3d 1112.
Attorney's right to appear pro hac vice in state court, 20 A.L.R.4th 855.
Disciplinary action against attorney for aiding or assisting another person in unauthorized practice of law, 41 A.L.R.4th 361.
Attorneys: revocation of state court pro hac vice admission, 64 A.L.R.4th 1217.
Handling, preparing, presenting, or trying workers' compensation claims or cases as practice of law, 58 A.L.R.5th 449.
What constitutes "unauthorized practice of law" by out-of-state counsel?, 83 A.L.R.5th 497.
7 C.J.S. Attorney and Client §§ 13 to 16, 26 to 28, 30, 31, 39 to 42.