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August 17, 2009 · Volume 48, No. 33

Inside This Issue

Table of Contents ....................................................... 5 U.S. Bankruptcy Court: Investiture Ceremony .......... 6 Lawyers Professional Liability and Insurance Committee Disclosure of Liability Insurance: Rule 16-104 ...... 8 Proclamation: August 26, Paralegal Day ..................... 9 Rules/Orders No. 31,583: In the Matter of the Suspension of Active Members of the State Bar of New Mexico for Noncompliance With Rule 18-301 NMRA, Governing Minimum Continuing Legal Education for Compliance Year 2008 ......... 18 No. 09-8300-028: In the Matter of the Amendments of Uniform Jury Instructions 14-5120, 14-5181, 14-5183, and 14-6018 and Adoption of New Uniform Jury Instructions 14-5185 and 14-5186 NMRA for Criminal Cases .................................................................... 18 No. 09-8300-029: In the Matter of the Amendments of Rule 16-104 NMRA of the Rules of Professional Conduct ................... 22 Proposed Revisions to the Rules of Civil Procedure for the District Courts ............ 24 From the New Mexico Court of Appeals

Serena by Todd Lenhoff (see page 5)

2009-NMCA-064, No. 27,338: State v. Smile ........................................................ 25 2009-NMCA-065, No. 24,026: Albuquerque Commons Partnership v. City Council of the City of Albuquerque............. 38

www.nmbar.org

Bar Bulletin - August 17, 2009 - Volume 48, No. 33 1

Cutting-Edge CLE's Inaugural Judicial Summit

with Judges from Across the Nation

Nationally Renown Speakers Entertaining and Exciting

Cultural Events

Exclusive Networking

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Largest Job Fair for Latino

Students

Inspirational Law Student and

Youth Symposium

Join us for our Annual Convention in this Historic Year for the HNBA and register today at www.hnba.com

2 Bar Bulletin - August 17, 2009 - Volume 48, No. 33

Steve Aaron, Paul F. Abrams, Xavier Acosta, Penni Adrian, Esteban A. Aguilar, Sr., Esteban A. Aguilar, Jr., Joseph A. Alarid, Lawrence W. Allred, Steven R. Almanzar, Christina Anaya, Erika Anderson, William R. (Bill) Anderson, Leslie McCarthy Apodaca, David A. Archuleta, Jacquelyn Archuleta-Staehlin, S. Charles Archuleta, Christina Argyres, Catherine D. Arlowe, Deborah A. Armstrong, Sarah Armstrong, Jose L. Arrieta, Tyler John Atkins, Timothy Atler, Gerald Baca, Michelle Baca, George L. Bach, Jr., C. Shannon Bacon, Arthur Brent Bailey, Mark Baker, Shana Baker, Kimberly Marie Bannerman, Bob Barberousse, Paul G. Bardacke, Roger Bargas, Lynn Barnhill, Randy Bartell, Theodore W. Barudin, Ken Bateman, Lloyd O. Bates, Jr., Bennett Baur, Marcy G. Baysinger, Kenneth L. Beal, Alexander Beattie, II, Lori M. Bencoe, Deana Bennett, Linda H. Bennett, David J. Berardinelli, Barbara E. Bergman, David M. Berlin, Gordon Berman, Hannah Best, Carl Bettinger, Greg Biehler, George Bingham, Tom Bird, Billy Blackburn, Michelle Marie Lalley Blake, Neil R. Blake, Thomas F. Blueher, Kristina Bogardus, Mary Lynn Bogle, V. Arthur Bova, Jr., Brian P. Brack, Brian K. Branch, Margaret Moses Branch, Rebecca Branch, Cynthia Ann Braun, Michael Brescia, Michael B. Browde, Natalie Bruce, Jeff Buckels, Jack Burton, Michael E. Cain, Jake Caldwell, David S. Campbell, Roseanne Camunez, Cristy J. Carbon-Gaul, Raul A. Carrillo, Jr., Mary Carmack, William H. Carpenter, Carroll D. Carter, III, Kathleen D. Carter, Ellen Casey, Kelly Mack Cassels, Joseph Cervantes, Mark Chaiken, Susan G. Chappell, Gregory William Chase, Gail Chasey, Frank N. Chavez, Maria Montoya Chavez, Vanessa P. Chavez, Tim Chelpaty, Briggs F. Cheney, Randy K. Clark, Michael Clemens, Carol Clifford, Greig W. Coates, Kari Converse, Robert Cooper, Monica Corica, Alexandra Corwin Aguilar, John P. Cosentino, Amber Creel, Frances A. Crockett, Robert Crollett, Nancy Cronin, Peter V. Culbert, Katie Curry, Hugh Dangler, Tessa Davidson, Joel Davis, Michael Davis, John Day, Richard De Stefano, Daniel A. Dolan, Mark Donatelli, Veronica Dorato, Jocelyn C. Drennan, Katy Duhigg, John A. Duran, Stephen G. Durkovich, Lisa K. Durrett, Roger V. Eaton, Brendan Egan, Kenneth G. Egan, James C. Ellis, Lizbeth G. Ellis, Daymon B. Ely, Leon Encinias, Tatiana Engelmann, Shane A. English, Craig Erickson, Mario A. Esparza, Gail Jane Evans, Josh Ewing, Steven C. Ewing, Hank Farrah, Richard N. Feferman, Dave Ferguson, Mark A. Filosa, Sherrill K. Filter, Elizabeth M. Fisher, Ray Floersheim, Jacqueline Flores, Juan Flores, Josephine Ford, Lisa P. Ford, Tara Ford, Emily Franke, Stephen G. French, Caren I. Friedman, Melanie Fritzsche, Ben Stearman Furth, Rodney L. Gabaldon, Phillip C. Gaddy, Gregory Gahan, Brooke Gamble, David A. Garcia, Matthew L. Garcia, Monica Garcia, Douglas E. Gardner, Michael T. Garrett, Sean Garrett, Eileen Gauna, Kurt Gilbert, Duane C. Gilkey, Bill Gilstrap, Peter I. Giovannini, Jane

THESE SUPPORTERS CONGRATULATE

JUDGE ROBERT E. ROBLES JUDGE LINDA M. VANZI JUDGE TIM L. GARCIA

ON THEIR APPOINTMENTS TO THE NEW MEXICO COURT OF APPEALS

Katherine Girard, Ladonna Giron, Mark A. Glenn, Catherine Goldberg, Joseph Goldberg, Gerald Gonzalez, Bradford K. Goodwin, Marc Gordon, David Gorman, Gail Gottlieb, Ronald Gould, Christopher Graeser, David Graham, Esmerelda Graham, Marc Grano, Al Green, Barry Green, Kim Griffith, Michelle Lujan Grisham, Dana Kanter Grubesic, Andrea I. Gunderson, Elizabeth J. Gutierrez, J. Michele Guttmann, Brad D. Hall, Bruce D. Hall, Glenn D. Hall, Jerry J. Hamilton, Stephen Hamilton, Mary Han, Eric Hannum, Robert E. Hanson, Nikko Harada, Jack Hardwick, F. Michael Hart, Patrick Hart, Dusti Harvey, Scott Hatcher, Helen Hecht, Steven C. Henry, Pamelya P. Herndon, J.D. Herrera, Bryan J. Hess, Corbin P. Hildebrandt, Jay D. Hill, Tom Hnasko, Robyn Hoffman, Christopher A. Holland, J. Edward Hollington, Joseph M. Holmes, Thomas J. Horan, Tracy Howell, Matthew R. Hoyt, James M. Hudson, Lee Hunt, Peter Ives, Richard M Jacquez, David J. Jaramillo, Heather Jaramillo, Tammy M. Jasionowski, Tracy Jenks, Anna L. Juarez, Terrence Kamm, Harutiun Kassakhian, Paul Kastler, Lara Katz, Jenny Kaufman, Justin Ross Kaufman, William R. Keeler, Henry A. Kelly, Jaime Kennedy, John Kennedy, Paul Kennedy, Susan Kery, Kerry C. Kiernan, Cynthia A. Kiersnowski, Peter H. Klages, Randy J. Knudson, Mark Komer, Lawrence B. Kronen, Cherie L. LaCour, Jeff Lahann, William F. Lang, Twila Braun Larkin, Derek V. Larson, Maria M. LaVerde, Christopher David Lee, Jess R. Lilley, Marc A. Lilley, Michael W. Lilley, Anthony G. Lopez, Cid Dagward Lopez, Manuel J. Lopez, Brigitte U. Lotze, Kathleen J. Love, Marc M. Lowry, Donna Lynch, Rosario D. Vega Lynn, Lisa Tourek Mack, Daniel J. Macke, Alan Maestas, Antonio Maestas, Larry Maldegen, Robert Malone, Eileen Mandel, Clinton Marrs, Ganesha Martin, David B. Martinez, Kristina Martinez, Maria Martinez, Vince Martinez, Heather Massoth, Francis Mathew, John McCarthy, Steven McConnell, Sue B. McDowell, Elizabeth V. McGrath, Molly McGraw, Carlotta McInteer, Cliff McIntyre, Seth McMillan, David McNeill, Jr., Mario Michael Medrano, Walter Melendres, Gianna Mendoza, Carolyn N. Merchant, Robert N. Meyer, Kim Middlebrooks, Brandt P. Milstein, Gary Mitchell, Andrea Alicia Montoya, Victor Patrick Montoya, Jean Constance Moore, Thurman W. Moore, III, Lidia Garza Morales, Ronald C. Morgan, Regina Moss, W. Mark Mowery, Cerianne Lynne Mullins, Dennis P. Murphy, Anne Murray, Betsy Musselman, Sarita Nair, Steve Natelson, Jody Neal-Post, Olivia Neidhardt, Mark Kriendler Nelson, Peggy Jean Nelson, Laurel Marie Nesbitt, David Norvell, Erin O'Connell, Jerome A. O'Connell, Dylan O'Reilly, Suzanne Odom, Christa M. Okon, Cathy Oliver, Richard E. Olson, Thomas Olson, Nancy A. Oretskin, Craig Orraj, Lisa Chavez Ortega, LeeAnn Ortiz, Michelle Kay Ostrye, Thomas Outler, S. Thomas Overstreet, Ronald Eugene Owens, Agnes Fuentevilla Padilla, Arnold Padilla, Richard M. Padilla, Barry Paisner, Pedro Palacios, Theresa Parrish, Olga Pedroza, Charles R. Peifer, K. Jan Peterson, Lynn Pickard, Lawrence L. Pickett, Mark L. Pickett, Charles James Piechota, Albert L. Pitts, Edmund Pitts, David L. Plotsky, Brady C. Pofahl, Earl Potter, Michael Pottow, Victor Poulos, John Pound, Lupe Preciado, Maria D. Preciado, Ruth O. Pregenzer, Troy Prichard, Jennifer Pruett, Charles K. Purcell, Charles A. Purdy, Mark Pustay, Bryan L. Query, Feliz Angelica Rael, Marcus J. Rael, Jr., Rory Rank, Roxie Rawls-de Santiago, Barney James Reeves, Edith Marie Reeves, Melissa J. Reeves, Edward R. Ricco, Kimberly A. Richards, Tiffany L. Roach, Andrea K. Robeda, Jackie Robins, Bill Robins, Karl H. Roepke, David E. Romero, Jr., Dennis Romero, Eliu Romero, Geoffrey R. Romero, Joseph Romero, Keith Romero, Margaret Romero, Jay D. Rosenblum, Mary Rosner, Gregory Ross, Antonia Roybal-Mack, K. Stephen Royce, Emeterio L. Rudolfo, Regina Ryanczak, Robert E. Sabin, Angel L. Saenz, Brenda Saiz, Frank Salazar, John Salazar, Pia A. Salazar, Patricia Salazar-Ives, Nell Graham Sale, Andrew Sanchez, Dennis Sanchez, Octavio Sanchez, Maureen A. Sanders, Janet K. Santillanes, Rod Schlagel, David Schmidt, Angie K. Schneider-Cook, Peter Schoenburg, Steven S. Scholl, Andrew G. Schultz, David M. Serna, Eric Serna, Daniel W. Shapiro, Patrick Shay, Tim Sheehan, Frederick H. Sherman, Herbert M. Silverberg, Albert Simms, Beverly J. Singleman, Sarah Singleton, Ellen Thorne Skrak, William D. Slease, Joshua L. Smith, Quentin F. Smith, Bill Snead, James Snead, Jeanne Yvonne Sohn, Kurt Sommer, Daniel Sosa, Jr., Daniel Sosa, III, Frank L. Spring, Travis R. Steele, Luis G. Stelzner, Patricia M. Stelzner, Barbara G. Stephenson, Slate Stern, Stephen L. Stevers, Margaret Strickland, David J. Stout, Michael L. Stout, Raynard Struck, Patrick W. Sullivan, Bill Teel, Paul G. Tellez, Benjamin Thomas, Bruce Evan Thompson, Manuel Tijerina, Victor A. Titus, John R. Tiwald, Denise M. Torres, Mary Torres, Maria Touchet, Sara Traub, Rob Treinen, Larry Trujillo, Ray Twohig, Kim Udall, Gabrielle Valdez, Richard J. Valle, Larry Van Eaton, Laure Van Heijenoort, Julian Varela, Ray M. Vargas, II, Bette Velarde, Charles Vigil, Donald D. Vigil, Jill Johnson Vigil, Lisa K. Vigil, Ramon Vigil, Ryan Villa, Dino R. Villani, Richard Virtue, Steven J. Vogel, Steven Vogel, Scott F. Voorhees, Hans Voss, Bill Walker, David Walther, Stacey A. Ward, Michelle Warren, Stefan Wasserman, Jeffrey Wechsler, Dathan L. Weems, George W. Weeth, Felicia C. Weingartner, Jennifer Wernersbach, John Wentworth, Jerry Wertheim, Jerry Todd Wertheim, John Wertheim, Christina S. West, Little West, Duff H. Westbrook, Peter D. White, Erin E. Wideman, Susan H. Widner, Michael W. Wile, Nann Winter, Jane B. Wishner, Alexander A. Wold, Aaron Wolf, Carolyn Wolf, D. Lyle Wood, Terry M. Word, Jeremy M. Worley, Joshua T. Worley, Michael T. Worley, Paul T. Yarbrough,Wendy York, Joleen K. Youngers, Diego Zamora, Geno Zamora, Joseph M. Zebas, Bradford H. Zeikus.... TO ADD YOUR NAME AS A SUPPORTER PLEASE E-MAIL [email protected]

Paid for by The Committee to Keep Judge Robert E. Robles - Joleen Youngers, Treasurer; The Committee to Keep Judge Linda M. Vanzi ­ Samuel L. Baca, CPA, Treasurer; The Committee to Keep Judge Tim L. Garcia ­ Shana Baker, Treasurer www.nmcourtofappeals2010.com

Bar Bulletin - August 17, 2009 - Volume 48, No. 33 3

Seeking attorney volunteers across New Mexico to teach 5th graders about the Constitution!

Constitution Day is designated by Public Law 108-447 Sec. 111 Division J - SEC. 111(b) which states that all levels of educational institutions receiving federal funds are required to educate students about the U.S. Constitution. Constitution Day is an event taking shape across the country designed to teach 5th graders about the Constitution. Each fifth grader participating will receive a pocket-size Constitution! During the week of September 14-18, volunteer attorneys will be partnered with 5th grade teachers in their area to co-teach a lesson on the Constitution. Suggested course materials will be provided, and you will get to deliver pocket-sized Constitutions to the children! Each presentation should last 1-1.5 hours per classroom. Volunteer attorneys will be given the teacher's name and contact information in advance so that specific planning may take place.

Constitution Day

YES! I'd like to be a Constitution Day Volunteer!*

(*requires $30 donation from each attorney to cover classroom materials)

I am unable to volunteer my time but I would like to donate toward the effort of putting a pocket-size constitution in the hands of all New Mexico fifth graders (Amount $________ )

NAME_____________________________________________________ Bar ID ____________ ADDRESS ___________________________________________________________________ ____________________________________________________________________________

(city) (state) (zip)

____________________________________________________________________________

(phone) (fax) (email)

Send this completed form to Marilyn Kelley Email: [email protected].org; or fax (505) 797-6074; or US mail: New Mexico State Bar Foundation, Public & Legal Services Department Attention Marilyn Kelley PO Box 92860, Albuquerque, NM 87199

4 Bar Bulletin - August 17, 2009 - Volume 48, No. 33

Table of ConTenTs

Notices ................................................................................................................................................................6 Proclamation: August 26, Paralegal Day ..................................................................................................9 Legal Education Calendar ......................................................................................................................... 10 Writs of Certiorari ......................................................................................................................................... 12 List of Court of Appeals' Opinions ........................................................................................................... 14 Recent Rule-Making Activity ..................................................................................................................... 15 Rules/Orders No. 31,583: In the Matter of the Suspension of Active Members of the State Bar of New Mexico for Noncompliance With Rule 18-301 NMRA, Governing Minimum Continuing Legal Education for Compliance Year 2008 ........................................................ 18 No. 09-8300-028: In the Matter of the Amendments of Uniform Jury Instructions 14-5120, 14-5181, 14-5183, and 14-6018 and Adoption of New Uniform Jury Instructions 14-5185 and 14-5186 NMRA for Criminal Cases .............................................. 18 No. 09-8300-029: In the Matter of the Amendments of Rule 16-104 NMRA of the Rules of Professional Conduct ............................................................................................ 22 Proposed Revisions to the Rules of Civil Procedure for the District Courts .................... 24 Opinions From the New Mexico Court of Appeals 2009-NMCA-064, No. 27,338: State v. Smile ............................................................................... 25 2009-NMCA-065, No. 24,026: Albuquerque Commons Partnership v. City Council of the City of Albuquerque ..................................................................................... 38 Advertising ..................................................................................................................................................... 49

Officers, Board of Bar Commissioners Henry A. Alaniz, President Stephen S. Shanor, President-Elect Jessica A. Pérez, Vice President Hans William Voss, Secretary-Treasurer Craig A. Orraj, Immediate-Past President Board of Editors Mark A. Glenn, Chair Janet Blair Paul A. Bleicher Joel McElroy Carson Danny W. Jarrett Joan Marsan Kathryn Joy Morrow Steven K. Sanders Stacey E. Scherer Elizabeth Staley

State Bar Staff Executive Director Joe Conte Membership and Communications Director Chris Morganti Editor Dorma Seago (505)797-6030·[email protected] Graphic Designer Julie Schwartz [email protected] Account Executive Marcia C. Ulibarri (505)797-6058·[email protected] Pressman Brian Sanchez Production Assistant Pam Zimmer Press Shop Assistant Michael Rizzo

©2009, State Bar of New Mexico. No part of this publication may be reprinted or otherwise reproduced without the publisher's written permission. The Bar Bulletin has the authority to edit letters and materials submitted for publication. Publishing and editorial decisions are based on the quality of writing, the timeliness of the article, and the potential interest to readers. Appearance of an article, editorial, feature, column, advertisement or photograph in the Bar Bulletin does not constitute an endorsement by the Bar Bulletin or the State Bar of New Mexico. The views expressed are those of the authors, who are solely responsible for the accuracy of their citations and quotations. State Bar members receive the Bar Bulletin as part of their annual dues. The Bar Bulletin is available at the subscription rate of $125 per year and is available online at www.nmbar.org. The Bar Bulletin (ISSN 1062-6611) is published weekly by the State Bar of New Mexico, 5121 Masthead NE, Albuquerque, NM 87109-4367. Periodicals postage paid at Albuquerque, NM. Postmaster: Send address changes to Bar Bulletin, PO Box 92860, Albuquerque, NM 87199-2860. (505)797-6000·(800)876-6227·Fax:(505)828-3765 E-mail:[email protected]·www.nmbar.org

Professionalism Tip

With respect to opposing parties and their counsel: I will refrain from excessive and abusive discovery, and I will comply with reasonable discovery requests.

Meetings

August

17 Attorney Support Group, 7:30 a.m., First United Methodist Church 19 Law Practice Management Committee, noon, State Bar Center 19 Health Law Section Board of Directors, noon, State Bar Center 20 NREEL Board of Directors, noon, State Bar Center 21 Family Law Section Board of Directors, 9 a.m., State Bar Center 27 Technology Committee, 4 p.m., State Bar Center

State Bar Workshops

August

26 Consumer Debt/Bankruptcy Workshop 6 p.m., State Bar Center, Albuquerque

September

10 Lawyer Referral for the Elderly Workshop 10:30 a.m.­12:30 p.m., Presentation 1:30­5 p.m., Clinics Española Senior Center, Española 16 Lawyer Referral for the Elderly Workshop 10­11:15 a.m., Presentation 12:30­3:30 p.m., Clinics Edgewood Senior Center, Edgewood 23 Consumer Debt/Bankruptcy Workshop 6 p.m., State Bar Center, Albuquerque

August 17, 2009, Vol. 48, No. 33

Cover Artist:PaintingsbyToddLenhoff([email protected])giveanin-depth,vibrantviewofhisinterpretationofpeople.Through color, line, and shape, he is able to bring character, culture and life to the canvas. He sees his work like that of the subject matter--a continuous evolution. To see the cover art in its original color, visit www.nmbar.org and click on Attorneys/Members/Bar Bulletin. Bar Bulletin - August 17, 2009 - Volume 48, No. 33 5

noTiCes

CourT news

N.M. Supreme Court

Board of Legal Specialization Comments Solicited

The following attorney is applying for certification as a specialist in the area of law identified. Application is made under the New Mexico Board of Legal Specialization, Rules 19-101 through 19-312 NMRA, which provide that the names of those seeking to qualify shall be released for publication. Further, attorneys and others are encouraged to comment upon any of the applicant's qualifications within 30 days after the publication of this notice. Address comments to New Mexico Board of Legal Specialization, PO Box 93070, Albuquerque, NM 87199. George R. McFall Recertification Employment/Labor Law of the evaluations also provide judges with information that can be used to improve their professional skills as judicial officers. The commission's next regular meeting will be from 8 a.m. to 5 p.m., Aug. 28, at the State Bar Center, Albuquerque.

U. S. Bankruptcy Court for the District of New Mexico

Investiture Ceremony

Robert H. Jacobvitz will take the oath of office as United States bankruptcy judge for the District of New Mexico at an investiture ceremony to be held at 4 p.m., Aug. 28, in the Ceremonial Courtroom, 6th Floor, Federal Building and United States Courthouse, 421 Gold Ave. SW, Albuquerque. A reception will follow at the Albuquerque Country Club, 601 Laguna Boulevard SW.

Compilation Commission Meeting

The New Mexico Compilation Commission will meet at 9 a.m., Aug. 18, in the Supreme Court Building, Room 208, to discuss the Advisory Committee's recommendations regarding a publishing contract pursuant to NMSA 1978, Section 12-1-3. The commission will convene into executive session immediately and reconvene into general session to announce any final decision.

The Committee on Uniform Jury Instructions for Civil Cases is considering whether to recommend proposed amendments to the Uniform Jury Instructions-- Civil for the Supreme Court's consideration. To comment on the proposed amendments before they are submitted to the Court for final consideration, submit a comment electronically through the Supreme Court's Web site at http://nmsupremecourt.nmcourts.gov/, or send written comments to: Kathleen J. Gibson, Clerk New Mexico Supreme Court PO Box 848 Santa Fe, NM 87504-0848 Comments must be received by the Clerk on or before Aug. 24 to be considered by the Court. Note that any submitted comments may be posted on the Supreme Court's Web site for public viewing. For reference, see the Aug. 3 (Vol. 48, No. 31) Bar Bulletin.

Proposed Revisions to the Uniform Jury Instructions-- Civil

sTaTe bar news

Annual Meeting

Appellate Practice Section

The Appellate Section will hold its annual membership meeting during the lunch break, Sept. 11, at the 20th Annual Appellate Practice Institute. See the CLE-At-a-Glance insert in the July 27 (Vol. 48, No. 30) Bar Bulletin for details. To register call (505) 797-6020; fax (505) 797-6071; visit www.nmbar.org and select CLE; or mail CLE, PO Box 92860, Albuquerque, NM 87199. Contact Chair Jocelyn Drennan, [email protected], to place an item on the agenda.

Judicial Performance Evaluation Commission

Thirteenth Judicial District Court

Attorney Support Group

New Hours for Clerks' Offices

The Judicial Performance Evaluation Commission was created by the New Mexico Supreme Court to provide voters with fair, responsible and constructive evaluations of trial and appellate judges and justices seeking retention in general elections. The results

The 13th Judicial District clerks' offices located in Bernalillo, Grants, and Los Lunas have new business hours. All business with the clerks' offices, in person or by telephone, will be conducted from 9 a.m. to noon and 1 p.m. to 5 p.m. For further information, contact Greg Ireland, (505) 865-2422.

· Afternoon groups meet regularly on the first Monday of the month: Sept. 7, 5:30 p.m. · Morning groups meet regularly on the third Monday of the month: Sept. 21, 7:30 a.m. Both groups meet at the First United Methodist Church at Fourth and Lead SW, Albuquerque. For more information, contact Bill Stratvert, (505) 242-6845.

Judicial Records Retention and Disposition Schedules

Pursuant to the Judicial Records Retention and Disposition Schedules, exhibits (see specifics for each court below) filed with the courts for the years and courts shown below, including but not limited to cases that have been consolidated, are to be destroyed. Cases on appeal are excluded. Counsel for parties are advised that exhibits (see specifics for each court below) can be retrieved by the dates shown below. Attorneys who have cases with exhibits may verify exhibit information with the Special Services Division at the numbers shown below. Plaintiff(s) exhibits will be released to counsel of record for the plaintiff(s), and defendant(s) exhibits will be released to counsel of record for defendant(s) by Order of the Court. All exhibits will be released in their entirety. Exhibits not claimed by the allotted time will be considered abandoned and will be destroyed by Order of the Court. Court lst Judicial District Court (505) 827-4687 Exhibits Exhibits in Criminal, Civil, and Domestic Relations, Children's Court, and Probate Cases For Years 1974­1993 May be Retrieved Through August 28

6 Bar Bulletin - August 17, 2009 - Volume 48, No. 33

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Children's Law Section

The Children's Law Section would like to thank those who have made the Seventh Annual Art and Writing Contest possible. The contest, supported by generous contributions from the legal community, provides children who are involved in the juvenile justice system with a positive opportunity to express their struggles, look toward the future, and celebrate artistic effort. This year, the children will create works on canvas bags based on the theme "Tools for Success." Donations will enable contest organizers to purchase canvas bags, art supplies, and prizes. Mail donations to Children's Law Section, State Bar of New Mexico, PO Box 92860, Albuquerque, NM 87199-2860. Donations are tax deductible through the State Bar Foundation tax exempt number 895-0390079. Members of the legal community are invited to a reception and display of the artwork from 5 to 8 p.m., Oct. 28, at Scalo Northern Italian Grill, Albuquerque. The Children's Law Section is accepting scholarship applications from UNM law students and New Mexico attorneys who have been practicing for no more than three years. The scholarship is being offered to increase awareness of and expertise in the field of children's law by supporting the attendance of law students and recently admitted attorneys at the 2010 Children's Law Institute, or alternate children's law conference, through payment of the recipient's conference registration fee. Forward a completed application to Kelly Waterfall, PO Box 878, Los Lunas, NM 87031; or fax to (505) 866-1338. Direct questions regarding the application to Kelly Waterfall, [email protected] or (505) 480-4148. The application must be submitted by Sept. 15. For more information and an application, visit www.nmbar. org/AboutSBNM/sections/ChildrensLaw/ childrenssection.html.

Annual Art Contest

for section members, government and legal services attorneys and paralegals. Lunch will be provided and attendees will earn 5.0 general and 1.0 ethics CLE credits. See the CLE At-A-Glance insert in the July 27 (Vol. 48, No. 30) Bar Bulletin for more information. To register call (505) 797-6020; fax (505) 797-6071; visit www.nmbar.org and select CLE; or mail CLE, PO Box 92860, Albuquerque, NM 87199.

Law Firm merchant account

Trust your transactions to the only payment solution recommended by the State Bar of New Mexico. · Correctly safeguard and separate client funds into trust and operating accounts. · Credit cards attract clients, improve cash flow, and reduce collections. · Members save up to 25% off credit card processing fees. Call 1-866-376-0950 or visit http://www.affiniscape.com/nmbar.

Public and Legal Services Department

Federal Workers' Compensation Attorney Needed

Attorney James Chakares has retired and is in need of locating a federal workers' compensation attorney to take over cases. Contact Marilyn Kelley, (505) 797-6048.

Public Law Section

Annual Meeting and CLE

Scholarship

The Public Law Section will hold its annual meeting at 12:30 p.m., Sept. 18, in conjunction with the Craig Othmer Memorial Procurement Code Institute at the State Personnel Office Auditorium, 2600 Cerrillos Rd., Santa Fe, NM. All section members are encouraged to attend. Agenda items should be sent to Chair Stephen Ross, [email protected] or call (505) 986-6279. The cost of the CLE program is $149; and $129 for section members, government and legal services attorneys and paralegals. See the CLE At-A-Glance insert in the July 27 (Vol. 48, No. 30) Bar Bulletin for more information. To register call (505) 797-6020; fax (505) 797-6071; visit www. nmbar.org and select CLE; or mail CLE, PO Box 92860, Albuquerque, NM 87199.

at the section meeting to be held at noon, Sept. 15, at the State Bar Center. Sanchez will speak about the upcoming 2010 legislative session and will address issues related to the budget, the legislative process, and other important issues facing our state. Lunch will be provided to section members compliments of the section. Non-members may purchase lunch for $7.50 per person. Non-members are encouraged to join the section for a $15 membership fee, which will pay for lunch and for section membership dues through 2010. Join the section and pay the annual dues prior to the section meeting and speaker presentation. R.S.V.P. to Tony Horvat, [email protected]

Young Lawyers Division

Real Property, Trust and Estate Section

Annual Meeting and CLE

The Real Property, Trust and Estate Section will hold its annual membership meeting during lunch, Sept. 24, at the 2009 Estate Planning, Probate and Trust Law Symposium at the State Bar Center. Contact Chair Patrick Dolan, [email protected] or (505) 988-2901, to place an item on the agenda.

"Meet the Judges" Luncheon

Employment and Labor Law Section

The Employment and Labor Law Section will hold its annual meeting during lunch, Oct. 9, in conjunction with the 2009 Employment and Labor Law Institute at the State Bar Center. Agenda items should be sent to Chair Danny Jarrett, [email protected] jacksonlewis.com or (505) 878-0515. The cost of the CLE program is $199; and $169

Annual Meeting and CLE

Solo and Small Firm Section

Section Meeting

New Mexico Senate Majority Leader Michael S. Sanchez will be the guest speaker

The Young Lawyer's Division will host a "Meet the Judges" luncheon from noon to 1:15 p.m., Aug. 28, at the 2nd Judicial District Attorney's Office, 1st Floor Conference Room, 520 Lomas NW, Albuquerque. Members are invited to have lunch with the Honorable Linda Vanzi, the Honorable Tim Garcia, the Honorable Robert Robles, the Honorable Beatrice Brickhouse, the Honorable Alan Malott, the Honorable Gerard Lavelle, and the Honorable Briana Zamora. Space is limited to the first 55 guests to respond. R.S.V.P. by Aug. 21 to Clara Moran, [email protected]

Bar Bulletin - August 17, 2009 - Volume 48, No. 33 7

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oTher bars

Albuquerque Bar Association

Member Luncheon

The Albuquerque Bar Association's Member Luncheon will be held at noon, Sept. 1, at the Embassy Suites Hotel, 1000 Woodward Pl. NE, Albuquerque. Professor Erik Gerding of the UNM School of Law will present Grading the Obama Administration's Financial Reform Proposals. The CLE (1.0 ethics and 1.0 professionalism CLE credits) will immediately follow the luncheon from 1:15 to 3:15 p.m. Judge Bill Lang will moderate a judges' panel on May It Peeve the Court 2009. Lunch only: $25 members/$35 nonmembers with reservations; lunch and CLE: $85 members/$115 non-members with reservations; CLE only: $60 members/$80 non-members. Register for lunch by noon, Aug. 28. To register: 1. log onto www.abqbar.com; 2. e-mail [email protected]; 3. call (505) 842-1151 or (505) 2432615; 4. by fax to (505) 842-0287; or 5. by mail to PO Box 40, Albuquerque, NM 87103.

School of Law

unM

oTher news

Fund-raising Event

Free Library Services for New Mexico Attorneys

Disability Rights N.M.

In celebration of their 30-year anniversary, Disability Rights New Mexico (formerly New Mexico Protection and Advocacy) is having a fund-raising golf tournament on Sept. 15 at Sandia Resort and Casino Golf Course. Lunch is provided for all participants and prizes will be awarded. Tee off time is 7:30 a.m. and fees are $100 per golfer. For more information, call (505) 256-3100 or toll free 1-800-432-4682.

· Check out circulating books. · Delivery (fax, e-mail, or mail) of articles or other documents available in our collection. (Requests must include an exact citation.) · Interlibrary loan of materials from other law libraries. (The Law Library does not charge a fee for this service, but the attorney will be responsible for any fees assessed by the lending library.) · Onsite access to research databases such as Westlaw-Pro, LexisNexis Academic, Loislaw, Shepard's, RIA Checkpoint, and many others. · Onsite access to LexisNexis Academic and Loislaw at the UNM branch campus libraries in Valencia County, Gallup, and Los Alamos (licenses provided by UNM Law Library). · Advice concerning the licensing of lowcost online legal resources. For more information about the UNM Law Library and any of these free services, visit http://lawlibrary.unm.edu, call (505) 277-0935, or e-mail [email protected]

Oliver Seth American Inn of Court

New Pupillages

In preparation for the upcoming year, the Oliver Seth American Inn of Court is forming new pupillages. Interested parties involved in litigation in northern New Mexico should send brief biographies to the Oliver Seth American Inn of Court, c/o Hon. Paul J. Kelly, Jr., U.S. Circuit Judge, PO Box 10113, Santa Fe, NM 87504-6113.

Samaritan Counseling Center

Seminar

Samaritan Counseling Center is sponsoring Ethical Principles for Interprofessional Collaboration in Working with Separated and Divorced Families from 8 a.m. to 4 p.m., Aug. 28, at the Presbyterian Administration Center, 2501 Buena Vista SE, Albuquerque. The seminar will foster more effective cooperation between mental health and legal professionals who work with families struggling with high-conflict divorce. Keynote speakers are Joan McIver Gibson, PhD, retired director of the Health Sciences Ethics Program and senior bioethicist with the Institute for Ethics at UNM; the Honorable Gerard Lavelle, Family Law Division of the 2nd Judicial District Court; and other mental health and legal experts. Six CEU credits are available for psychologists and counselors. Attorneys may earn 1.5 general, 2.7 ethics, and 1.0 professional CLE credits. Call the Samaritan Counseling Center, (505) 842-5300, to register or request information. The cost is $125 and registration deadline is Aug. 21.

N.M. Criminal Defense Lawyers Association

August CLE

Using networking sites like My Space and Facebook for investigation is just one highlight of the upcoming Aug. 28 CLE sponsored by the New Mexico Criminal Defense Lawyers Association. Michele Stuart of JAG Investigations in Arizona will be the key presenter. For more information, visit www.nmcdla.org, e-mail [email protected] org, or call (505) 992-0050.

Summer Library Hours

Building and Circulation Monday­Thursday Friday Saturday Sunday Reference Monday - Friday Saturday Sunday 8 a.m.­9 p.m. 8 a.m.­6 p.m. 9 a.m.­6 p.m. Noon­9 p.m. 9 a.m.­6 p.m. Closed Noon­4 p.m.

STATE BAR OF NEW MEXICO

DisClosure of liabiliTy insuranCe: rule 16-104

Order No. 09-8300-029, In the Matter of the Amendments of Rule 16-104 NMRA of the Rules of Professional Conduct (see page 22 of this issue of the Bar Bulletin), amends Rule 16-104 regarding disclosure of professional liability insurance. The Lawyers Professional Liability and Insurance Committee has assembled information to assist members regarding compliance with the new rule. Visit the committee's Web site, http://www.nmbar.org/AboutSBNM/Committees/LPL/LPL.html, for questions and answers and lists of brokers and carriers. Also available is a helpful article, "What Attorneys Need to Know About Professional Liability Insurance."

8 Bar Bulletin - August 17, 2009 - Volume 48, No. 33

Bar Bulletin - August 17, 2009 - Volume 48, No. 33 9

legal education

august

18 2008 Civil Procedures Update Video Replay Center for Legal Education of NMSBF 6.7 G (505) 797-6020 www.nmbarcle.org Attorneys Guide to Good Lawyering for People with Disabilities Video Replay Center for Legal Education of NMSBF 1.0 P (505) 797-6020 www.nmbarcle.org Corporate Governance for Non-Profits Teleseminar Center for Legal Education of NMSBF 1.0 G (505) 797-6020 www.nmbarcle.org 24 18 Legal Ethics of Representing Unpopular Causes and Clients Teleconference TRT, Inc. 2.0 E 1-800-672-6253 www.trtcle.com 25 18 What's Next? How to Refresh, Refocus and Recharge Your Legal Career Video Replay Center for Legal Education of NMSBF 3.0 G (505) 797-6020 www.nmbarcle.org Rules of Evidence and Procedure: State and Federal Albuquerque NBI, Inc. 5.0 G, 1.0 E 1-800-930-6182 www.nbi-sems.com 20 Litigating Bad Faith Insurance Claims Albuquerque NBI, Inc. 6.0 G 1-800-930-6182 www.nbi-sems.com Medicaid and Medicaid Planning in New Mexico Albuquerque Medical Educational Services PDN 5.5 G (715) 836-9900 Should Corporate Counsel Be Corporate Conscience? Teleconference TRT, Inc. 2.0 E 1-800-672-6253 www.trtcle.com Ethics Workout: Mental Aerobics for Solving Ethics Problems Teleconference TRT, Inc. 2.0 E 1-800-672-6253 www.trtcle.com Advising Trustees: Duties, Disclosures, and Liability Teleseminar Center for Legal Education of NMSBF 1.0 G (505) 797-6020 www.nmbarcle.org Conflicts Between Federal and State Laws Teleconference Cannon Financial Institute 1.5 G (706) 353-3346 Collections: Seeking and Collecting a Judgment Albuquerque NBI, Inc. 6.0 G 1-800-930-6182 www.nbi-sems.com 26 Need to Tame or Train the Billable Beast? Teleconference TRT, Inc. 2.0 E 1-800-672-6253 www.trtcle.com Prudent Investor Rule: Understanding the Rules of Trust Investments Teleseminar Center for Legal Education of NMSBF 1.0 G (505) 797-6020 www.nmbarcle.org Defying Gravity: Out of This World Creative Approaches for Defending Your Client Las Cruces New Mexico Criminal Defense Lawyers Association 7.0 G (505) 992-0050 or [email protected] www.nmcdla.org Ethical Principles for Interprofessional Collaboration Samaritan Counseling Center 1.5 G, 2.7 E, 1.0 P (505) 842-5300 www.samaritancc.com Subordinate Lawyers: Sit, Stay, Roll Over No More Telephone Seminar TRT Inc. 1.0 E, 1.0 P 1-800-672-6271 www.trtcle.com Lawyer Substance Abuse Addictions and Consequences Telephone Seminar TRT Inc. 1.0 E, 1.0 P 1-800-672-6253 www.trtcle.com

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P = Professionalism VR = Video Replay Programs have various sponsors; contact appropriate sponsor for more information.

10 Bar Bulletin - August 17, 2009 - Volume 48, No. 33

legal education

septemBer

1 6th Annual Elder Law Seminar Video Replay Center for Legal Education of NMSBF 2.9 G, 1.0 P (505) 797-6020 www.nmbarcle.org Attorneys Guide to Good Lawyering for People with Disabilities Video Replay Center for Legal Education of NMSBF 1.0 P (505) 797-6020 www.nmbarcle.org Kinship Guardianship Video Replay Center for Legal Education of NMSBF 4.0 G, 1.0 E, 1.0 P (505) 797-6020 www.nmbarcle.org 15 1­2 Understanding the Economics of LLC Deals, Parts 1 and 2 Teleseminar Center for Legal Education of NMSBF 2.0 G (505) 797-6020 www.nmbarcle.org Oil Gas and Mineral Land Law Albuquerque Halfmoon, LLC 6.0 G (715) 835-5900 Need to Tame or Train the Billable Beast? Teleconference TRT, Inc. 2.0 E 1-800-672-6253 www.trtcle.com Title Insurance Update Teleseminar Center for Legal Education of NMSBF 1.0 G (505) 797-6020 www.nmbarcle.org Family Law Santa Fe Paralegal Division, Santa Fe 1.0 G (505) 986-2502 9 Natural Resources Law Albuquerque Paralegal Division, Albuquerque 1.0 G (505) 247-0411 or (505) 222-9356 Your Family Law Practice in the 21st Century NBI Inc. Albuquerque 5.0 G, 1.0 E (715) 835-8529 www.nbi-sems.com 20th Annual Appellate Practice Institute State Bar Center Center for Legal Education of NMSBF 6.9 G (505) 797-6020 www.nmbarcle.org 2008 Estate Planning Symposium Video Replay Center for Legal Education of NMSBF 6.0 G, 1.0 E (505) 797-6020 www.nmbarcle.org Attorneys Guide to Good Lawyering for People with Disabilities Video Replay Center for Legal Education of NMSBF 1.0 P (505) 797-6020 www.nmbarcle.org Avoiding Oops! Uh-oh and Yikes! Some Ethical Dilemmas for Lawyers Video Replay Center for Legal Education of NMSBF 1.0 E (505) 797-6020 www.nmbarcle.org Medicare Set Asides Video Replay Center for Legal Education of NMSBF 2.7 G (505) 797-6020 www.nmbarcle.org 15

www.nmbar.org

Retirement Benefits and Estate Planning Teleconference Cannon Financial Institute 1.5 G (706) 353-3346 Special Issues in Small Trusts Teleseminar Center for Legal Education of NMSBF 1.0 G (505) 797-6020 www.nmbarcle.org Craig Othmer Memorial Procurement Code Institute Santa Fe Center for Legal Education of NMSBF 3.0 G, 1.0 E (505) 797-6020 www.nmbarcle.org When a Prosecutor Withholds Exculpatory Evidence Teleconference TRT, Inc. 2.0 E 1-800-672-6253 www.trtcle.com Advanced Sales and Use Tax Albuquerque Lorman Education 6.6 G (866) 352-9539 www.lorman.com Lawyer Exposure in Public Offerings Teleconference TRT, Inc. 2.0 E 1-800-672-6253 www.trtcle.com Understanding "Earn-Outs": Proving the Value of a Business Over Time Teleseminar Center for Legal Education of NMSBF 1.0 G (505) 797-6020 www.nmbarcle.org

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Bar Bulletin - August 17, 2009 - Volume 48, No. 33 11

as updated By the clerk of the neW mexico supreme court

Kathleen Jo Gibson, Chief Clerk New Mexico Supreme Court PO Box 848 · Santa Fe, NM 87504-0848 · (505) 827-4860

Writs of certiorari

effeCTive augusT 17, 2009

petitions for Writ of certiorari filed and pending:

Date Petition Filed

certiorari granted But not yet suBmitted to the court:

(Parties preparing briefs) Date Writ Issued NO. 30,827 State v. Sims (COA 26,590) 1/22/08 NO. 31,092 State v. Mailman (COA 27,966) 5/30/08 NO. 31,117 State v. Moore (COA 28,243) 6/12/08 NO. 31,101 State v. Montano (COA 28,002) 6/19/08 NO. 31,191 State v. Schwartz (COA 28,349) 7/21/08 NO. 31,218 State v. Henley (COA 27,925) 7/25/08 NO. 31,187 State v. Aragon (COA 26,185) 7/31/08 NO. 31,224 State v. Harrison (COA 27,224) 8/6/08 NO. 31,294 State v. Marquez (COA 27,735) 9/22/08 NO. 31,315 D'Antonio v. Garcia (COA 27,681) 10/1/08 NO. 31,328 Garcia v. State (On rehearing) (12-501) 12/29/08 NO. 31,430 State v. Ochoa (COA 28,175) 12/30/08 NO. 31,287 Waterhouse v. Heredia (12-501) 1/6/09 NO. 31,480 City of Aztec v. Gurule (COA 28,705) 2/3/09 NO. 31,491 Ideal v. Burlington Resources Oil & Gas (COA 29,025) 2/3/09 NO. 31,526 State v. Phillips (COA 27,019) 2/23/09 NO. 31,549 City of Santa Fe v. Travelers Casualty (COA 28,944) 2/25/09 NO. 31,433 Romero v. Philip Morris, Inc. (COA 26,993) 2/27/09 NO. 31,510 State v. Smith (COA 27,704) 3/13/09 NO. 31,100 Allen v. LeMaster (12-501) 3/13/09 NO. 31,546 Gomez v. Chavarria (COA 28,072/28,073) 3/24/09 NO. 31,567 State v. Guthrie (COA 27,022) 3/24/09 NO. 31,603 Guest v. Allstate Ins. Co. (COA 27,253) 4/2/09 NO. 31,602 Allstate Ins. Co. v. Guest (COA 27,253) 4/2/09 NO. 31,612 Ortiz v. Overland Express (COA 28,135) 4/20/09 NO. 31,656 State v. Rivera (COA 25,798) 5/5/09 NO. 31,637 Akins v. United Steel (COA 27,132) 5/14/09 NO. 31,686 McNeill v. Rice Engineering (COA 29,207) 5/20/09 NO. 31,717 State v. Johnson (COA 27,867) 6/17/09 NO. 31,719 State v. Lara (COA 27,166) 6/17/09 NO. 31,738 State v. Marlene C. (COA 28,352) 6/17/09 NO. 31,723 State v. Mendez (COA 28,261) 6/23/09 NO. 31,733 State v. Delgado (COA 27,192) 6/23/09 NO. 31,724 Albuquerque Commons v. City/Albuquerque (COA 24,026/24,027/24,042/24,425) 7/1/09 NO. 31,732 State v. Smile (COA 27,338) 7/1/09 NO. 31,739 State v. Marquez (COA 27,971) 7/1/09 NO. 31,740 State v. McCorkle (COA 29,124) 7/1/09 NO. 31,743 State v. Marquez (COA 28,938) 7/1/09 NO. 31,741 State v. Gardner (COA 27,234) 7/1/09 NO. 31,775 State v. Warren (COA 29,147) 7/15/09 NO. 31,703 State v. Nez (COA 26,811) 7/23/09 NO. 31,745 State v. Jackson (COA 28,107) 7/23/09 NO. 31,813 State v. Soliz (COA 28,018) 7/29/09

State v. Cline (COA 29,173) 8/7/09 State v. Harris (COA 28,887) 8/7/09 Padilla v. Hoisington (12-501) 8/10/09 State v. Cauffman (COA 29,012) 8/6/09 Lopez v. Tapia (12-501) 8/10/09 Esquibel v. City of Santa Fe (COA 27,548) 8/5/09 NO. 31,871 State v. Jordan (COA 29,303) 8/3/09 NO. 31,870 Reyes v. Janecka (12-501) 8/3/09 NO. 31,872 State v. Dombos (COA 28,994) 7/31/09 NO. 31,869 State v. Thompson (COA 29,419) 7/31/09 NO. 31,868 State v. Martinez (COA 29,199) 7/31/09 NO. 31,867 State v. Shelby (COA 29,100) 7/31/09 NO. 31,864 Arias v. Phoenix Indemnity (COA 28,282) 7/29/09 NO. 31,863 State v. Creighton M. (COA 29,210) 7/29/09 NO. 31,862 Gutierrez v. State (12-501) 7/28/09 NO. 31,861 State v. Dixon (COA 29,240) 7/27/09 NO. 31,812 State v. Sena (COA 24,156) 7/24/09 NO. 31,857 State v. Maez (COA 27,528) 7/21/09 NO. 31,855 State v. Romero (COA 29,060) 7/20/09 NO. 31,854 State v. Albarez (COA 29,468) 7/20/09 NO. 31,853 State v. Garcia (COA 27,939) 7/20/009 NO. 31,852 State v. Ordunez (COA 28,996) 7/20/09 NO. 31,851 State v. Benioh (COA 27,920) 7/20/09 NO. 31,850 Pruyn v. Lam (COA 28,103) 7/20/09 NO. 31,856 State v. Judd (COA 27,550) 7/17/09 NO. 31,780 Lacour v. Heredia (12-501) 7/17/09 Response due 9/2/09 by extn NO. 31,846 Houde v. Firri (COA 28,796) 7/16/09 NO. 31,845 Guzman v. Laguna Development Corp. (COA 27,827) 7/15/09 NO. 31,746 State v. Kirby (COA 28,828) 7/15/09 NO. 31,839 State v. Lopez (COA 27,862) 7/13/09 NO. 31,828 Kavel v. Romero (12-501) 7/9/09 Response due 8/27/09 NO. 31,734 Santiago v. Tapia (12-501) 7/1/09 Response due 8/26/09 by extn NO. 31,806 Loera v. Moya (12-501) 6/30/09 Response due 8/17/09 by extn NO. 31,799 Garcia v. Tapia (12-501) 6/25/09 Response due 8/26/09 by extn NO. 31,701 State v. Brusuelas (COA 27,107) 6/24/09 Response due 8/25/09 by extn NO. 31,791 State v. Atcitty (COA 27,189/27,940/27,333) 6/22/09 NO. 31,763 Parmentier v. Heredia (12-501) 6/12/09 Response due 8/5/09 by extn

NO. 31,880 NO. 31,879 NO. 31,878 NO. 31,877 NO. 31,876 NO. 31,875

12 Bar Bulletin - August 17, 2009 - Volume 48, No. 33

Writs of certiorari

NO. 31,750 NO. 31,840 Kilgore v. Fuji State v. Garcia (COA 27,470) (COA 28,465) 7/30/09 8/11/09 NO. 31,365 NO. 31,215 NO. 30,766 NO. 31,363 NO. 31,318 NO. 31,364 NO. 31,325 NO. 31,213 NO. 31,288 NO. 31,265 NO. 31,416 NO. 31,539 NO. 31,308 NO. 31,151 NO. 31,245 NO. 31,186 NO. 31,360

http://nmsupremecourt.nmcourts.gov.

State v. Lucero (COA 27,364) 5/13/09 State v. Johnson (COA 26,878) 5/27/09 State v. Jones (COA 27,342) 5/27/09 Hanosh v. King (COA 28,175) 7/20/09 Dept. of Transportation v. S & S Trezza (COA 28,475) 8/10/09 Mountain States v. Allstate Ins. Co. (COA 28,686) 8/10/09 Kersey v. Hatch (12-501) 8/10/08 State v. Dodson (COA 28,382) 8/11/09 State v. Savedra (COA 27,288/27,289/27,290) 8/11/09 State v. Hill (COA 27,401) 8/31/09 Carlsbad Hotel Associates v. Patterson (COA 27,922) 9/14/09 McGary v. AMS Staff Leasing (COA 28,867) 9/14/09 State v. Sosa (COA 26,863) 9/15/09 State v. Munoz (COA 26,956) 9/30/09 State v. Littlefield (COA 27,504) 9/30/09 State v. Bullcoming (COA 26,413) 10/14/09 State v. Morales (COA 26,969) 11/10/09

certiorari granted and suBmitted to the court:

(Submission = date of oral argument or briefs-only submission)

Submission Date

NO. 30,657 NO. 30,787 NO. 30,937 NO. 30,953 NO. 31,329 NO. 30,956 NO. 30,957 NO. 30,958 NO. 31,263 NO. 31,192 NO. 31,258 NO. 31,153 NO. 31,279 NO. 31,106 NO. 31,244 NO. 31,374

State v. Nick R. (COA 27,145) 10/29/08 Cable v. Wells Fargo Bank (On reconsideration) (COA 26,357) 12/15/08 State v. Garcia (COA 27,091) 12/16/08 State v. Santiago (COA 26,859) 1/12/09 Kirby v. Guardian Life (COA 27,624) 2/9/09 Davis v. Devon (COA 28,147/28,154) 2/9/09 Ideal v. BP America (COA 28,148/28,153) 2/9/09 Smith v. Conocophillips (COA 28,151/28,152) 2/9/09 Garcia v. Gutierrez (COA 26,484) 2/10/09 Reule Sun Corporation v. Valles (On rehearing) (COA 27,254) 3/9/09 Marchstadt v. Lockheed (COA 27,222) 3/11/09 State v. Wyman (COA 28,237) 3/25/09 Lions Gate v. D'Antonio (COA 28,668) 4/13/09 State v. Anaya (COA 27,114) 4/15/09 State v. Slayton (COA 27,892) 4/29/09 Schultz v. Pojoaque Tribal Police Dept.(COA 28,508) 5/11/09

petition for Writ of certiorari denied:

NO. 31,837 NO. 31,838 NO. 31,866 State v. Valenzuela State v. Judd Crawford v. State (COA 29,351) (COA 29,460) (12-501) 8/7/09 8/7/09 8/7/09

Bar Bulletin - August 17, 2009 - Volume 48, No. 33 13

opinions

as updated By the clerk of the neW mexico court of appeals

Gina M. Maestas, Chief Clerk New Mexico Court of Appeals PO Box 2008 · Santa Fé, NM 87504-2008 · (505) 827-4925

effeCTive augusT 7, 2009

Date Opinion Filed

puBlished opinions

unpuBlished opinions

No. 29314 6th Jud Dist Hidalgo CR-08-22, STATE v L ALVERAZ (affirm) No. 29353 1st Jud Dist Santa Fe JQ-07-8, CYFD v ALFRED Q (affirm) No. 29562 1st Jud Dist Rio Arriba DV-03-156, E MARTINEZ v P MARTINEZ (dismiss) No. 29344 3rd Jud Dist Dona Ana CR-07-1424, STATE v S COLWELL (affirm) No. 29366 4th Jud Dist Mora CV-08-61, J OLIVER v A WALCK (dismiss) No. 29512 12th Jud Dist Otero CR-07-241, STATE v A TROUT (affirm) 8/3/2009 8/6/2009 8/6/2009 8/7/2009 8/7/2009 8/7/2009

Slip Opinions for Published Opinions may be read on the Court's Web site: http://coa.nmcourts.com/documents/index.htm

14 Bar Bulletin -August 17, 2009 - Volume 48, No. 33

recent rule-making activity

as updated By the clerk of the neW mexico supreme court

Kathleen Jo Gibson, Chief Clerk New Mexico Supreme Court PO Box 848 · Santa Fe, NM 87504-0848 · (505) 827-4860

effeCTive augusT 10, 2009

· To view pending proposed rule changes visit the New Mexico Supreme Court's Web site: http://nmsupremecourt.nmcourts.gov/ · To view recently approved rule changes, visit the New Mexico Compilation Commission's Web site: http://www.nmcompcomm.us/

Pending ProPosed rule Changes

13-1636 13-1637 13-1638 13-1639 13-1640 13-1641 13-1642 Malicious abuse of process defined; general statement of elements (UJI Civil) Malicious abuse of process; "judicial proceeding" defined (UJI Civil) Malicious abuse of process; "active participation" defined (UJI Civil) Misuse of process; lack of probable cause (UJI Civil) Misuse of process; procedural impropriety, defined (UJI Civil) Malicious abuse of process; illegitimate motive (UJI Civil) Malicious abuse of process; bifurcated trial; instructions prior to bifurcated claim of malicious abuse of process (UJI Civil) Summons (Rules of Civil Procedure for the Metropolitan Courts) Certificate of recusal (Criminal forms) Notice of recusal (Criminal forms) Court's certificate of service (Civil forms) Court's certificate of service (Criminal forms) Certificate of service (Civil forms) Party's certificate of service (Civil forms) Certificate of service (Criminal forms) Party's certificate of service (Criminal forms) Certificate of excusal or recusal (Civil forms) Notice of excusal (Civil forms) Notice of recusal (Civil forms) Certificate of excusal or recusal (Civil forms) Notice of excusal (Civil forms) Notice of recusal (Civil forms) Notice of assignment (Civil forms) Notice of assignment (Criminal forms) Judgment (Rules of Criminal Procedure for the Magistrate Courts) Judgment (Rules of Procedure for the Municipal Courts) Appeal (Rules of Criminal Procedure for the Magistrate Courts) Appeal (Rules of Procedure for the Municipal Courts)

Comment Deadline

2-105 6-105 08/24/09 9-612 08/24/09 08/24/09 9-615 08/24/09 08/24/09 08/24/09 9-616 9-617 9-618 9-619 9-620 08/10/09 07/27/09 07/27/09 07/27/09 07/27/09 07/27/09 07/27/09 07/27/09 07/27/09 07/27/09 07/27/09 07/27/09 07/27/09 07/27/09 07/27/09 07/27/09 07/27/09 07/27/09 07/27/09 07/27/09 07/27/09 1-037 1-038 1-045 1-045 1-045.1 10-313.1 12-502 10-343 9-613 9-614

08/24/09

3-202 9-102B 9-103B 4-225 9-222 4-221 4-221A 9-221 9-221A 4-102 4-103 4-104 4-102A 4-103A 4-104A 4-104B 9-103C 6-701 8-701 6-703 8-703

Assignment and designation of judges (Rules of Civil Procedure for the Magistrate Courts) Assignment and designation of judges (Rules of Criminal Procedure for the Magistrate Courts) Order on direct criminal contempt (Criminal forms) Judgment and sentence on indirect criminal contempt (Criminal forms) Order on direct civil contempt (Criminal forms) Order on indirect civil contempt (Criminal forms) Conditional discharge order (Criminal forms) Final order of discharge (Criminal forms) Order finding no violation of probation (Criminal forms) Order finding probation violation and continuing sentence (Criminal forms) Probation violation, judgment, and sentence (Criminal forms) Representation of multiple siblings (Children's Court) Certiorari to the Court of Appeals (Rules of Appellate Procedure) Adjudicatory hearing; time limits; continuances (Children's Court Rules)

07/27/09 07/27/09 07/27/09 07/27/09 07/27/09 07/27/09 07/27/09 07/27/09 07/27/09 07/27/09 07/27/09 07/20/09 05/04/09 04/17/09

reCently aPProved rule Changes sinCe release of 2009 nMra

Effective Date

rules of civil procedure for the district courts

1-096.1 1-016 1-026 1-033 1-034 Review of election recall petitions. Pretrial conferences; scheduling; management. General provisions governing discovery. Interrogatories to parties. Production of documents and things and entry upon land for inspection and other purposes. Failure to make discovery; sanctions. Jury trial in civil actions. Subpoena. Subpoena. Interstate subpoenas. 09/04/09 05/15/09 05/15/09 05/15/09 05/15/09 05/15/09 12/15/08 05/15/09 08/07/09 08/07/09

Bar Bulletin - August 17, 2009 - Volume 48, No. 33 15

rule-making activity

1-071.1 1-071.2 1-071.3 1-071.4 1-071.5 1-074 1-075 1-088 1-125 Statutory stream system adjudication suits; service and joinder of water rights claimants; responses. Statutory stream adjudication suits; stream system issues and expedited inter se proceedings. Statutory stream adjudication suits; annual joint working session. Statutory stream adjudication suits; ex parte contacts; general problems of administration. Statutory stream adjudication suits; excusal or recusal of a water judge. Administrative appeals; statutory review by district court of administrative decisions or orders. Constitutional review by district court of administrative decisions and orders. Designation by judge. Domestic Relations Mediation Act programs. 04/08/09 04/08/09 04/08/09 04/08/09 04/08/09 12/15/08 12/15/08 04/08/09 05/18/09 7-110A 7-502 7-106 7-401 7-506 7-602 7-703

http://nmsupremecourt.nmcourts.gov.

rules of criminal procedure for the metropolitan courts

Audio and audio-visual appearance of defendant. Pleas and plea agreements. Excusal; recusal; disability. Bail. Time of commencement of trial. Jury trial. Appeal. 09/10/09 09/10/09 01/15/09 02/02/09 01/15/09 01/15/09 01/15/09

rules of procedure for the municipal courts

8-103 8-109A 8-111 8-201 8-401 8-403 8-501 8-502 8-506 8-703 Rules; forms; fees. Audio and audio-visual appearances of defendant. Non-attorney prosecutions. Commencement of action. Bail. Revocation of Release. Arraignment; first appearance. Pleas. Time of commencement of trial. Appeal. 12/31/08 12/31/08 12/31/08 12/31/08 12/31/08 12/31/08 12/31/08 12/31/08 01/15/09 01/15/09

rules of civil procedure for the magistrate courts

2-802 Garnishment. 12/31/08

civil forms

4-805 4-805B 4-803 4-805B Application for writ of garnishment. Application for writ of garnishment. Claim of exemptions on execution. Application for writ of garnishment. 09/04/09 09/04/09 05/06/09 12/31/08

criminal forms

9-102 9-102A 9-406A 9-408A 9-604 9-701 Certificate of excusal or recusal. Certificate of excusal or recusal. Guilty plea or no contest plea proceeding. Plea and disposition agreement. Judgment and Sentence. Petition for writ of habeas corpus. 09/10/09 09/10/09 12/31/08 12/31/08 05/06/09 05/06/09

rules of criminal procedure for the district courts

5-104 5-121 5-207 5-604 5-614 5-704 5-801 5-802 Time. Orders; preparation and entry. Withdrawn. Time of commencement of trial. Motion for new trial. Death penalty; sentencing. Modification of sentence. Habeas corpus. 05/06/09 05/06/09 04/06/09 11/24/08 05/06/09 05/06/09 05/06/09 05/06/09

rules of appellate procedure

12-202 12-308 12-505 12-603 Appeals as of right; how taken. Computation of time. Certiorari to the district court; decisions on review of administrative agency decisions. Appeals in actions challenging candidates or nominating petitions; primary or general elections; school board recalls and recalls of elected county officials. Appearance, withdrawal or substitution of attorneys. Form of papers prepared by parties. Rehearings. Certiorari to the district court from denial of habeas corpus. Certification from other courts. 09/04/09 09/04/09 09/04/09

rules of criminal procedure for the magistrate courts

6-108 6-110A 6-113 6-201 6-401 6-403 6-502 6-506 6-703 Non-attorney prosecutions. Audio and audio-visual appearances of defendant. Victim's rights. Commencement of action. Bail. Revocation of release. Plea and plea agreements. Time of commencement of trial. Appeal. 12/31/08 12/31/08 12/31/08 12/31/08 12/31/08 12/31/08 12/31/08 01/15/09 01/15/09

09/04/09 05/06/09 05/25/09 05/06/09 05/06/09 04/08/09

12-302 12-305 12-404 12-501 12-607

uJi civil

13-110A 13-110B 13-1406 Instruction to jury. Oath to interpreter. Strict products liability; care not an issue. 12/31/08 12/31/08 05/15/09

16 Bar Bulletin - August 17, 2009 - Volume 48, No. 33

rule-making activity

13-1430 13-305 13-306 13-820 Breach of implied warranty of merchantability. Causation (proximate cause). Independent intervening cause. Third-party beneficiary; enforcement of contract. 02/02/09 02/02/09 02/02/09 12/31/08 17-204

http://nmsupremecourt.nmcourts.gov.

rules governing discipline

Required records. 01/01/10

rules for minimum continuing legal education

18-203 Accreditation; course approval; provider reporting. 12/31/08

uJi criminal

14-5120 14-5181 14-5183 14-5185 14-5186 14-6018 14-111 14-120 14-203 14-2212 14-2217 Ignorance or mistake of fact. Self defense; nondeadly force by defendant. Self defense; deadly force by defendant. Self defense against excessive force by a peace officer; nondeadly force by defendant. Self defense against excessive force by a peace officer; deadly force by defendant. Special verdict; kidnapping. Supplemental jury questionnaire. Voir dire of jurors by court. Act greatly dangerous to life; essential elements. Aggravated battery on a peace officer with a deadly weapon; essential elements. Aggravated fleeing a law enforcement officer. 09/16/09 09/16/09 09/16/09 09/16/09 09/16/09 09/16/09 02/02/09 02/02/09 02/02/09 02/02/09 02/02/09 21-400 21-300

code of Judicial conduct

Disqualification. A judge shall perform the duties of office impartially and diligently. 09/04/09 03/23/09

rules governing the recording of Judicial proceedings

22-202 22-201 Licensing of firms engaged in court reporting or tape monitoring. Licensing of court reporters and monitors; power to administer oaths. 09/10/09 12/31/08

rules governing revieW of Judicial standards commission

27-104 Filing and service. 09/04/09

local rules for the second Judicial district court

Opposed motions and other opposed matters; filings; hearings. 06/01/09 LR2-504 Court clinic mediation program and other services for child-related disputes. 05/18/09 LR2-Form T Court clinic referral order. 05/18/09 LR2-123

rules governing admission to the Bar

15-301.2 Legal services provider limited law license for emeritus and non-admitted attorneys. 01/14/09

rules of professional conduct

16-104 Communication (Rules of Professional Conduct) 11/02/09

Bar Bulletin - August 17, 2009 - Volume 48, No. 33 17

rules/orders

NO. 31,583

From the New Mexico Supreme Court

http://www.nmcompcomm.us/

IN the Matter Of the SuSpeNSION Of actIve MeMberS Of the State bar Of New MexIcO fOr NONcOMplIaNce wIth rule 18-301 NMra, GOverNING MINIMuM cONtINuING leGal educatION fOr cOMplIaNce Year 2008 Order Of SuSpeNSION

WHEREAS, this matter came on for consideration by the Court upon the certification filed herein by the Minimum Continuing Legal Education Board that certain active members of the State Bar of New Mexico failed to comply with MCLE requirements for the 2008 reporting year; and WHEREAS, Herman E. Ortiz was granted an extension of time until August 3, 2009, to comply with MCLE requirements for the 2008 reporting year, and having failed to comply by said date, and the Court being sufficiently advised, Chief Justice Edward L. Chávez, Justice Patricio M. Serna, Justice Petra Jimenez Maes, Justice Richard C. Bosson, and Justice Charles W. Daniels concurring;

NOW, THEREFORE, IT IS ORDERED, ADJUDGED, AND DECREED that effective August 4, 2009, the following named member of the State Bar of New Mexico be and hereby is SUSPENDED from the practice of law in the courts of this state by reason of noncompliance with MCLE requirements for the 2008 reporting year. IT IS FURTHER ORDERED that the Clerk of this Court shall change the status of membership in the bar for each attorney listed below as shown on the official roll of attorneys, and that notice thereof be given to each judge in the state of New Mexico and be published in the Bar Bulletin: Herman E. Ortiz P.O. Box 75 Garfield, NM 87936-0075 IT IS SO ORDERED. WITNESS, Honorable Edward L. Chávez, Chief Justice of the Supreme Court of the State of New Mexico, and the seal of said Court this 4th day of August, 2009. _________________________________________ Kathleen Jo Gibson, Chief Clerk of the Supreme Court of the State of New Mexico

NO. 09-8300-028 IN the Matter Of the aMeNdMeNtS Of uNIfOrM JurY INStructIONS 14-5120, 14-5181, 14-5183, aNd 14-6018 aNd adOptION Of New uNIfOrM JurY INStructIONS 14-5185 aNd 14-5186 NMra fOr crIMINal caSeS Order

WHEREAS, this matter came on for consideration by the Court upon recommendation from the Uniform Jury Instructions for Criminal Cases Committee to approve amendments of 14-5120, 14-5181, 14-5183, and 14-6018 NMRA and to adopt new Uniform Jury Instructions 14-5185 and 14-5186 NMRA for criminal cases, and the Court having considered said recommendation and being sufficiently advised, Chief Justice Edward L. Chávez, Justice Patricio M. Serna, Justice Petra Jimenez Maes, Justice Richard C. Bosson, and Justice Charles W. Daniels concurring; NOW, THEREFORE, IT IS ORDERED that the amendments of 14-5120, 14-5181, 14-5183, and 14-6018 NMRA hereby are APPROVED; IT IS FURTHER ORDERED that new Uniform Jury Instructions 14-5185 and 14-5186 NMRA for criminal cases hereby are ADOPTED; IT IS FURTHER ORDERED that the amendments of 145120, 14-5181, 14-5183, and 14-6018 NMRA and adoption of new Uniform Jury Instructions 14-5185 and 14-5186 NMRA for criminal cases shall be effective September 16, 2009;

IT IS FURTHER ORDERED that the Clerk of the Court hereby is authorized and directed to give notice of the amendments of the above-referenced instructions and adoption of the new instructions by publishing the same in the Bar Bulletin and NMRA and posting the same on the New Mexico Compilation Commission web site, www.nmcompcomm.us/nmrules. IT IS SO ORDERED. WITNESS, Honorable Edward L. Chávez, Chief Justice of the Supreme Court of the State of New Mexico, and the seal of said Court this 31st day of July, 2009. _________________________________________ Kathleen Jo Gibson, Chief Clerk of the Supreme Court of the State of New Mexico ________________________________ 14-5120. Ignorance or mistake of fact.1 Evidence has been presented that the defendant believed that __________________2. The burden is on the state to prove beyond a reasonable doubt that the defendant did not [act] [fail to act] under an honest and reasonable belief in the existence of those facts. If you have a reasonable doubt as to whether the defendant's [action] [or] [failure to act] resulted from a mistaken belief of those facts, you must find the defendant not guilty. USE NOTE 1. If this instruction is given, add to the essential elements instruction for the offense charged, "The defendant did not [act] [fail to act] under a mistake of fact." 2. Describe the facts constituting a mistake of fact. [As amended, effective January 1, 1997.]

18 Bar Bulletin - August 17, 2009 - Volume 48, No. 33

Committee commentary. -- In State v. Bunce, 116 N.M. 284, 285, 861 P.2d 965 (1993), the Supreme Court held it was fundamental error to fail to instruct on mistake-of-fact as a defense of embezzlement. "Ordinarily, a defendant is not entitled to a specific instruction where the jury has already been adequately instructed upon the matter by other instructions." State v. Venegas, 96 N.M. 61, 63, 628 P.2d 306, 308 (1981). See also, State v. Long, 121 N.M. 333, 911 P.2d 227 (Ct. App. 1995) relying on State v. Venegas, 96 N.M. at 62-63, 628 P.2d at 307-08. [As amended by Supreme Court Order No. 09-8300-028, effective September 16, 2009.] ________________________________ 14-5181. Self defense; nondeadly force by defendant.1 Evidence has been presented that the defendant acted in self defense. The defendant acted in self defense if: 1. There was an appearance of immediate danger of bodily harm to the defendant as a result of __________________ 2; and 2. The defendant was in fact put in fear of immediate bodily harm and __________________3 because of that fear; and 3. The defendant used an amount of force that the defendant believed was reasonable and necessary to prevent the bodily harm; and [4. The force used by defendant ordinarily would not create a substantial risk of death or great bodily harm; and]4 5. The apparent danger would have caused a reasonable person in the same circumstances to act as the defendant did. The burden is on the state to prove beyond a reasonable doubt that the defendant did not act in self defense. If you have a reasonable doubt as to whether the defendant acted in self defense, you must find the defendant not guilty. USE NOTE 1. For use in nonhomicide cases when the self defense theory is based upon: necessary defense of self against any unlawful action; reasonable grounds to believe a design exists to commit an unlawful act; or reasonable grounds to believe a design exists to do some bodily harm. If this instruction is given, add to the essential elements instruction for the offense charged, "The defendant did not act in self defense." 2. Describe unlawful act which would result in some bodily harm as established by the evidence. Give at least enough detail to put the act in the context of the evidence. 3. Describe the act of defendant; e.g. "struck Richard Roe," "choked Richard Roe." 4. Use bracketed material only if the defendant's action resulted in death or great bodily harm. If bracketed material is used, the definition of great bodily harm, UJI 14-131 NMRA, must be given if not already given. [As amended, effective January 1, 1997; as amended by Supreme Court Order No. 09-8300-028, effective September 16, 2009.] Committee commentary. -- Subsections A and B of NMSA 1978, Section 30-2-7 (1963) provide that a person may act in self-defense if necessarily or reasonably defending himself or herself against any unlawful action, felony or great personal injury. It is never reasonable to use deadly force against a nondeadly attack. A person may use a deadly force in self-defense only if defending himself or herself against an attack which creates a substantial risk of death or great bodily harm. See commentary

to UJI 14-5171 NMRA and LaFave & Scott, Criminal Law 392 (1972). Element 4 is bracketed and is to be used only if there is evidence that the defendant used a force which ordinarily would not cause death or great bodily harm but which resulted in death or great bodily harm. A person is not guilty of homicide if he or she unintentionally kills a third person in self-defense. State v. Sherwood, 39 N.M. 518, 50 P.2d 968 (1953). See generally, Annot., 55 A.L.R.3d 620 (1974). NMSA 1978, Sections 30-3-2 (Aggravated assault) and 30-3-4 (Battery) (1963) provide that an aggravated assault or a battery must be unlawful. The term "unlawfully" means simply that the action is not authorized by law. State v. Mascarenas, 86 N.M. 692, 526 P.2d 1285 (Ct. App. 1974). The words "without excuse or justification" have been held to be "clearly equivalent to the word unlawful." Territory v. Gonzales, 14 N.M. 31, 89 P. 250 (1907). Cf. State v. Woods, 82 N.M. 449, 483 P.2d 504 (Ct. App. 1971). The phrase "without excuse or justification" identifies a defense theory, i.e., even if all of the acts constituting the crime were committed, the act is otherwise excusable or justifiable. Cf. NMSA 1978, § 30-2-8 (1963). The committee took the position that unlawfulness was generally present in an assault or a battery if the other elements were proved. It is, of course, possible for the state to proceed with a prosecution when the defense is based on some theory of lawfulness other than self-defense. See e.g., Perkins, Criminal Law 987 (2d ed. 1969). In the event that the case does go to the jury and there is evidence to establish the defense of a lawful assault, an instruction must be drafted for that purpose. The burden on the defendant is only to produce evidence which raises a reasonable doubt in the minds of the jurors. See State v. Harrison, 81 N.M. 623, 471 P.2d 193 (Ct. App.), cert. denied, 81 N.M. 668, 472 P.2d 382 (1970). The burden is then on the state to prove beyond a reasonable doubt that the assault or battery was not justifiable. Cf. Mullaney v. Wilbur, 421 U.S. 684 (1975). The committee revised this instruction in 1981 to resolve the problem presented in State v. Brown, 93 N.M. 236, 599 P.2d 389 (Ct. App.), writ quashed, 93 N.M. 172, 598 P.2d 215, cert. denied, 444 U.S. 1084, 100 S. Ct. 1041, 62 L. Ed. 2d 769 (1979), where the defendant is charged with a nondeadly assault. See UJI 14-5185 NMRA and UJI 14-5186 NMRA if the victim is a law enforcement officer. [As amended by Supreme Court Order No. 09-8300-028, effective September 16, 2009.] ________________________________ 14-5183. Self defense; deadly force by defendant.1 Evidence has been presented that the defendant acted in self defense. The defendant acted in self defense if: 1. There was an appearance of immediate danger of death or great bodily harm2 to the defendant as a result of __________________3; and 2. The defendant was in fact put in fear of immediate death or great bodily harm and ____________4 because of that fear; and 3. The apparent danger would have caused a reasonable person in the same circumstances to act as the defendant did. The burden is on the state to prove beyond a reasonable doubt that the defendant did not act in self defense. If you have a reasonable doubt as to whether the defendant acted in self defense, you must find the defendant not guilty. USE NOTE 1. For use in nonhomicide cases when the self defense theory

Bar Bulletin - August 17, 2009 - Volume 48, No. 33 19

is based upon: necessary defense of self against any unlawful action; reasonable grounds to believe a design exists to commit a felony; or reasonable grounds to believe a design exists to do some great bodily harm. If this instruction is given, add to the essential elements instruction for the offense charged, "The defendant did not act in self defense." 2. The definition of "great bodily harm," UJI 14-131 NMRA, must be given if not already given. 3. Describe unlawful act, felony or act which would result in death or some great bodily harm as established by the evidence. Give at least enough detail to put the act in context of the evidence. 4. Describe act of defendant; e.g., "struck Richard Roe," "choked Richard Roe." [As amended, effective January 1, 1997; as amended by Supreme Court Order No. 09-8300-28, effective September 16, 2009.] ______________________________ 14-5185. Self defense against excessive force by a peace officer; nondeadly force by defendant.1 Evidence has been presented that the defendant acted in self defense. A defendant has the right to defend himself or herself against an officer only if the officer used excessive force. Excessive force means greater force than reasonably necessary. The defendant acted in self defense if: 1. The officer used greater force than reasonable and necessary by __________________2; and 2. There was an appearance of immediate danger of bodily harm to the defendant as a result of __________________ 3; and 3. The defendant was in fact put in fear of immediate bodily harm and __________________4 because of that fear; and 4. The defendant used an amount of force that the defendant believed was reasonable and necessary to prevent the bodily harm; and [5. The force used by defendant ordinarily would not create a substantial risk of death or great bodily harm; and]5 6. The apparent danger would have caused a reasonable person in the same circumstances to act as the defendant did. The burden is on the state to prove beyond a reasonable doubt that the defendant did not act in self defense. If you have a reasonable doubt as to whether the defendant acted in self defense, you must find the defendant not guilty. USE NOTE 1. For use in nonhomicide cases when the self defense theory is based upon the limited right of self-defense against excessive force by a peace officer. If this instruction is given, add to the essential elements instruction for the offense charged, "The defendant did not act in self defense." 2. Describe the act of the officer. 3. Describe unlawful act which would result in some bodily harm as established by the evidence. Give at least enough detail to put the act in the context of the evidence. 4. Describe the act of defendant; e.g. "struck Officer Richard Roe," "choked Officer Richard Roe." 5. Use bracketed material only if the defendant's action resulted in death or great bodily harm. If bracketed material is used, the definition of great bodily harm, UJI 14-131 NMRA, must be given if not already given. [Adopted by Supreme Court Order No. 09-8300-028, effective September 16, 2009.]

Committee commentary. -- When asserting self-defense against a private citizen, a defendant has an "unqualified right to a self-defense instruction in a criminal case when there is evidence which supports the instruction." State v. Ellis, 2008-NMSC-032, ¶ 15, 144 N.M. 253, 186 P.3d 245 (quoting State v. Kraul, 90 N.M. 314, 318, 563 P.2d 108, 112 (Ct. App. 1977), cert. denied, 90 N.M. 637, 567 P.2d 486 (1977)). "By comparison, a person has only a qualified right to assert self-defense against a police officer, because police officers have a duty to make arrests and a right to use reasonable force when necessary." Ellis, 2008-NMSC-032, ¶ 15 (citing Kraul, 90 N.M. at 319, 563 P.2d at 113). The burden is on the defendant to persuade the court that reasonable minds could differ on whether the officer's use of force was excessive, in order for this issue to be submitted to the jury. Ellis, 2008-NMSC-032, ¶ 34. Element 5 is bracketed and is to be used only if there is evidence that the defendant used a force which ordinarily would not cause death or great bodily harm but which resulted in death or great bodily harm. A person is not guilty of homicide if he or she unintentionally kills a third person in self-defense. State v. Sherwood, 39 N.M. 518, 50 P.2d 968 (1953). See generally, Annot., 55 A.L.R.3d 620 (1974). [Adopted by Supreme Court Order No. 09-8300-028, effective September 16, 2009.] __________________________________ 14-5186. Self defense against excessive force by a peace officer; deadly force by defendant.1 Evidence has been presented that the defendant acted in self defense. A defendant has the right to defend himself or herself against an officer only if the officer used excessive force. Excessive force means greater force than reasonably necessary. The defendant acted in self defense if: 1. The officer used greater force than reasonable and necessary by __________________2; and 2. There was an appearance of immediate danger of death or great bodily harm3 to the defendant as a result of __________________4; and 3. The defendant was in fact put in fear of immediate death or great bodily harm and ____________5 because of that fear; and 4. The apparent danger would have caused a reasonable person in the same circumstances to act as the defendant did. The burden is on the state to prove beyond a reasonable doubt that the defendant did not act in self defense. If you have a reasonable doubt as to whether the defendant acted in self defense, you must find the defendant not guilty. USE NOTE 1. For use in nonhomicide cases when the self defense theory is based upon the limited right of self-defense against excessive force by a peace officer. If this instruction is given, add to the essential elements instruction for the offense charged, "The defendant did not act in self defense." 2. Describe the act of the officer. 3. The definition of "great bodily harm," UJI 14-131 NMRA, must be given if not already given. 4. Describe unlawful act, felony or act which would result in death or some great bodily harm as established by the evidence. Give at least enough detail to put the act in context of the evidence. 5. Describe act of defendant; e.g., "struck Officer Richard Roe," "choked Officer Richard Roe." [Adopted by Supreme Court Order No. 09-8300-028, effective September 16, 2009.]

20 Bar Bulletin - August 17, 2009 - Volume 48, No. 33

Committee commentary. -- When asserting self-defense against a private citizen, a defendant has an "unqualified right to a self-defense instruction in a criminal case when there is evidence which supports the instruction." State v. Ellis, 2008-NMSC-032, ¶ 15, 144 N.M. 253, 186 P.3d 245 (quoting State v. Kraul, 90 N.M. 314, 318, 563 P.2d 108, 112 (Ct. App. 1977), cert. denied, 90 N.M. 637, 567 P.2d 486 (1977)). "By comparison, a person has only a qualified right to assert self-defense against a police officer, because police officers have a duty to make arrests and a right to use reasonable force when necessary." Ellis, 2008-NMSC-032, ¶ 15 (citing Kraul, 90 N.M. at 319, 563 P.2d at 113). The burden is on the defendant to persuade the court that reasonable minds could differ on whether the officer's use of force was excessive, in order for this issue to be submitted to the jury. Ellis, 2008NMSC-032, ¶ 34. [Adopted by Supreme Court Order No. 09-8300-028, effective September 16, 2009.] _______________________________ 14-6018. Special verdict; kidnapping.1 If you find the defendant guilty of kidnapping [as charged in Count ________]2, then you must determine whether the defendant [voluntarily freed __________________ (name of victim) in a safe place] [and] [whether the defendant inflicted physical injury upon __________________ (name of victim)] [and] [whether a sexual offense was committed]3. You must complete the special [form] [forms] to indicate your findings. [For you to make a finding of "yes," [to the first question,]4 the state must prove to your satisfaction beyond a reasonable doubt that the defendant did not voluntarily free __________________ (name of victim) in a safe place.] [For you to make a finding of "yes," [to the second question,]4 the state must prove to your satisfaction beyond a reasonable doubt that the defendant inflicted physical injury upon __________________ (name of victim).] [For you to make a finding of "yes," [to the third question,]4 the state must prove to your satisfaction beyond a reasonable doubt that the defendant committed a sexual offense upon __________________ (name of victim).] (style of case) QUESTION [1]4 Do you unanimously find beyond a reasonable doubt that the defendant did not voluntarily free __________________ (name of victim) in a safe place? ________ (Yes or No) ____________________ FOREPERSON (style of case) QUESTION [2]4 Do you unanimously find beyond a reasonable doubt that the defendant inflicted physical injury upon __________________ (name of victim)? ________ (Yes or No) ____________________ FOREPERSON

(style of case) QUESTION [3]4 Do you unanimously find beyond a reasonable doubt that the defendant committed a sexual offense upon __________________ (name of victim)?5 ________ (Yes or No) ____________________ FOREPERSON USE NOTE 1. This instruction is to be used if there is an issue as to whether the defendant voluntarily freed the victim in a safe place or as to whether the defendant inflicted physical injury on the victim or as to whether the defendant committed a sexual offense upon the victim. All kidnapping is first degree kidnapping unless the defendant voluntarily frees the victim and does not inflict physical injury upon the victim and does not commit a sexual offense upon the victim. The defendant may be found guilty of first degree kidnapping if the jury answers any or all of the above questions, "yes." If none of the questions is answered "yes," the defendant is guilty of second degree kidnapping. 2. Insert the count number if more than one count is charged. 3. Use applicable alternative or alternatives. 4. For use if more than one question is given to the jury. 5. Unless the court has instructed on the essential elements of the sexual offense, these elements must be given in a separate instruction, generally worded as follows: "For you to find that the defendant committed _________________, the state must prove to your satisfaction beyond a reasonable doubt that _______________." (Add elements of the sexual offense unless they are set out in another essential elements instruction.) [Effective for crimes occurring after February 3, 2004.] [Adopted, effective August 1, 1997; as amended by Supreme Court Order No. 09-8300-028, effective September 16, 2009.] Committee commentary. -- The uniform jury instructions do not include any definition of "physical injury" because the term is not defined by statute or case law. [Adopted by Supreme Court Order No. 09-8300-028, effective September 16, 2009.] Statutory reference. -- Subsection B of Section 30-4-1 NMSA 1978. __________________________________

Bar Bulletin - August 17, 2009 - Volume 48, No. 33 21

NO. 09-8300-029 IN the Matter Of the aMeNdMeNtS Of rule 16-104 NMra Of the ruleS Of prOfeSSIONal cONduct Order

WHEREAS, this matter came on for consideration by the Court upon recommendation of the New Mexico State Bar Board of Bar Commissioners to amend Rule 16-104 NMRA of the Rules of Professional Conduct, and the Court having considered said recommendation and being sufficiently advised, Chief Justice Edward L. Chávez, Justice Patricio M. Serna, Justice Petra Jimenez Maes, Justice Richard C. Bosson, and Justice Charles W. Daniels concurring; NOW, THEREFORE, IT IS ORDERED that the amendments of Rule 16-104 NMRA of the Rules of Professional Conduct hereby are APPROVED; IT IS FURTHER ORDERED that the amendments of Rule 16-104 NMRA of the Rules of Professional Conduct shall be effective November 2, 2009; and IT IS FURTHER ORDERED that the Clerk of the Court hereby is authorized and directed to give notice of the amendments of the above-referenced rule by publishing the same in the Bar Bulletin and NMRA and posting the same on the New Mexico Compilation Commission web site <www.nmcompcomm.us/nmrules>. IT IS SO ORDERED. WITNESS, Honorable Edward L. Chávez, Chief Justice of the Supreme Court of the State of New Mexico, and the seal of said Court this 24th day of July, 2009. _________________________________________ Kathleen Jo Gibson, Chief Clerk of the Supreme Court of the State of New Mexico ________________________________ 16-104. Communication. A. Status of matters. A lawyer shall: (1) promptly inform the client of any decision or circumstance with respect to which the client's informed consent, as defined in Paragraph E of Terminology of the Rules of Professional Conduct, is required by these rules; (2) reasonably consult with the client about the means by which the client's objectives are to be accomplished; (3) keep the client reasonably informed about the status of the matter; (4) promptly comply with reasonable requests for information; and (5) consult with the client about any relevant limitation on the lawyer's conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law. B. Client's informed decision-making. A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation. C. Disclosure of professional liability insurance. (1) If, at the time of the client's formal engagement of a lawyer, the lawyer does not have a professional liability insurance policy with limits of at least one-hundred thousand dollars ($100,000) per claim and three-hundred thousand dollars ($300,000) in the aggregate, the lawyer shall inform the client

22 Bar Bulletin - August 17, 2009 - Volume 48, No. 33

in writing using the form of notice prescribed by this rule. If during the course of representation, an insurance policy in effect at the time of the client's engagement of the lawyer lapses, or is terminated, the lawyer shall provide notice to the client using the form prescribed by this rule. (2) The form of notice and acknowledgment required under this Paragraph shall be: NOTICE TO CLIENT Pursuant to Rule 16-104(C) NMRA of the New Mexico Rules of Professional Conduct, I am required to notify you that ["I" or "this Firm"] [do not][does not][no longer] maintain[s] professional liability malpractice insurance of at least one-hundred thousand dollars ($100,000) per occurrence and three-hundred thousand dollars ($300,000) in the aggregate. _________________________________ Attorney's signature CLIENT ACKNOWLEDGMENT I acknowledge receipt of the notice required by Rule 16-104(C) NMRA of the New Mexico Rules of Professional Conduct that [insert attorney or firm's name] does not maintain professional liability malpractice insurance of at least one-hundred thousand dollars ($100,000) per occurrence and three-hundred thousand dollars ($300,000) in the aggregate. _________________________________ Client's signature (3) As used in this Paragraph, "lawyer" includes a lawyer provisionally admitted under Rule 24-106 NMRA and Rules 26-101 through 26-106 NMRA; however it does not include a lawyer who is a full-time judge, in-house corporate counsel for a single corporate entity, or a lawyer who practices exclusively as an employee of a governmental agency. (4) A lawyer shall maintain a record of the disclosures made pursuant to this rule for six (6) years after termination of the representation of the client by the lawyer. (5) The minimum limits of insurance specified by this rule include any deductible or self-insured retention, which must be paid as a precondition to the payment of the coverage available under the professional liability insurance policy. (6) A lawyer is in violation of this rule if the lawyer or the firm employing the lawyer maintain a professional liability policy with a deductible or self-insured retention that the lawyer knows or has reason to know cannot be paid by the lawyer or the lawyer's firm in the event of a loss. [Amended by Supreme Court Order No. 08-8300-29, effective November 3, 2008; by Supreme Court Order No. 09-8300-029, effective November 2, 2009.] Committee Commentary [1] Reasonable communication between the lawyer and the client is necessary for the client effectively to participate in the representation. Communicating with Client [2] If these rules require that a particular decision about the representation be made by the client, Subparagraph (1) of Paragraph A of this rule requires that the lawyer promptly consult with and secure the client's consent prior to taking action unless prior discussions with the client have resolved what action the client wants the lawyer to take. For example, a lawyer who receives from opposing counsel an offer of settlement in a civil controversy or a proffered

plea bargain in a criminal case must promptly inform the client of its substance unless the client has previously indicated that the proposal will be acceptable or unacceptable or has authorized the lawyer to accept or to reject the offer. See Paragraph A of Rule 16-102 NMRA of the Rules of Professional Conduct. [3] Subparagraph (2) of Paragraph A requires the lawyer to reasonably consult with the client about the means to be used to accomplish the client's objectives. In some situations­depending on both the importance of the action under consideration and the feasibility of consulting with the client­this duty will require consultation prior to taking action. In other circumstances, such as during a trial when an immediate decision must be made, the exigency of the situation may require the lawyer to act without prior consultation. In such cases the lawyer must nonetheless act reasonably to inform the client of actions the lawyer has taken on the client's behalf. Additionally, Paragraph A(3) requires that the lawyer keep the client reasonably informed about the status of the matter, such as significant developments affecting the timing or the substance of the representation. [4] A lawyer's regular communication with clients will minimize the occasions on which a client will need to request information concerning the representation. When a client makes a reasonable request for information, however, Paragraph A(4) requires prompt compliance with the request, or if a prompt response is not feasible, that the lawyer, or a member of the lawyer's staff, acknowledge receipt of the request and advise the client when a response may be expected. Client telephone calls should be promptly returned or acknowledged. Explaining Matters [5] The client should have sufficient information to participate intelligently in decisions concerning the objectives of the representation and the means by which they are to be pursued, to the extent the client is willing and able to do so. Adequacy of communication depends in part on the kind of advice or assistance that is involved. For example, when there is time to explain a proposal made in a negotiation, the lawyer should review all important provisions with the client before proceeding to an agreement. In litigation a lawyer should explain the general strategy and prospects of success and ordinarily should consult the client on tactics that are likely to result in significant expense or to injure or coerce others. On the other hand, a lawyer ordinarily will not be expected to describe trial or negotiation strategy in detail. The guiding principle is that the lawyer should fulfill reasonable client expectations for information consistent with the duty to act in the client's best interests, and the client's overall requirements as to the character of representation. In certain circumstances, such as when a lawyer asks a client to consent to a representation affected by a conflict of interest, the client must give informed consent, as defined in Paragraph E of Terminology of the Rules of Professional Conduct.

[6] Ordinarily, the information to be provided is that appropriate for a client who is a comprehending and responsible adult. However, fully informing the client according to this standard may be impracticable, for example, where the client is a child or suffers from diminished capacity. See Rule 16-114 NMRA of the Rules of Professional Conduct. When the client is an organization or group, it is often impossible or inappropriate to inform every one of its members about its legal affairs; ordinarily, the lawyer should address communications to the appropriate officials of the organization. See Rule 16-113 NMRA of the Rules of Professional Conduct. Where many routine matters are involved, a system of limited or occasional reporting may be arranged with the client. Withholding Information [7] In some circumstances, a lawyer may be justified in delaying transmission of information when the client would be likely to react imprudently to an immediate communication. Thus, a lawyer might withhold a psychiatric diagnosis of a client when the examining psychiatrist indicates that disclosure would harm the client. A lawyer may not withhold information to serve the lawyer's own interest or convenience or the interests or convenience of another person. Rules or court orders governing litigation may provide that information supplied to a lawyer may not be disclosed to the client. Paragraph C of Rule 16-304 NMRA of the Rules of Professional Conduct directs compliance with such rules or orders. Disclosure of professional liability insurance [8] Paragraph C of this rule requires a lawyer to disclose to the clients whether the lawyer has professional liability insurance satisfying the minimum limits of coverage set forth in the rule. Subparagraph (3) of Paragraph C defines "lawyer" to include lawyers provisionally admitted under Rule 24-106 NMRA and Rules 26-101 to 26-106 NMRA. Rule 24-106 NMRA applies to out-of-state lawyers who petition to be allowed to appear before the New Mexico courts. Rules 26-101 to 26-106 NMRA apply to foreign legal consultants. Subparagraph (4) of Paragraph C requires a lawyer to maintain a record of disclosures made under this rule for six (6) years after termination of the representation of the client by the lawyer. In this regard, the lawyer should note that trust account records must be kept for five (5) years but the statute of limitations for a breach of contract claim is six (6) years. Subparagraph (5) of Paragraph C provides that the minimum limits of insurance specified by the rule includes any deductible or selfinsured retention. In this regard, the use of the term "deductible" includes a claims expense deductible. The professional liability insurance carrier must agree to pay, subject to exclusions set forth in the policy, all amounts that an insured becomes legally obligated to pay in excess of the deductible or self-insured retention shown on the declarations page of the policy. [Adopted by Supreme Court Order 08-8300-26, effective November 3, 2008; amended by Supreme Court Order 09-8300-029, effective November 2, 2009.]

Bar Bulletin - August 17, 2009 - Volume 48, No. 33 23

rules/orders

From the New Mexico Supreme Court

prOpOSed revISIONS tO the ruleS Of cIvIl prOcedure fOr the dIStrIct cOurtS

The Rules of Civil Procedure Committee is considering whether to recommend proposed amendments to the Rules of Civil Procedure for the District Courts for the Supreme Court's consideration. If you would like to comment on the proposed amendments set forth below before they are submitted to the Court for final consideration, you may do so by either submitting a comment electronically through the Supreme Court's web site at http://nmsupremecourt. nmcourts.gov/ or sending your written comments to: Kathleen J. Gibson, Clerk New Mexico Supreme Court P.O. Box 848 Santa Fe, New Mexico 87504-0848 Your comments must be received on or before September 8, 2009, to be considered by the Court. Please note that any submitted comments may be posted on the Supreme Court's web site for public viewing. __________________________________ 1-096. Challenge of nominating petition. A. Complaint; filing deadline. Court action challenging a nominating petition provided for in the Primary Election Law, Sections 1-810 through 1-8-52 NMSA 1978, shall be initiated by filing a complaint no later than ten (10) days after the last day for filing the declaration of candidacy with which the nominating petition was filed. B. Service of process. The complaint shall be served in accordance with Rule 1-004 NMRA upon the proper [In addition to serving process on the] filing officer as provided in Section 1-8-35(B) NMSA 1978[ Comp.] and as defined by Section 1-8-25 NMSA 1978, and the plaintiff shall, immediately after filing the complaint, also deliver a copy of the complaint and notice of hearing to the candidate whose nominating petition is challenged. Delivery shall be effected in the manner provided in Subparagraph (a) of Subparagraph (1) of Paragraph F of Rule 1-004 NMRA. C. Challenges to [;] signatures[ should not be counted]; separate counts and specificity in complaint required. If claim is made that any signature on [the] a nominating petition should not be counted, the complaint shall; (1) specify in separate counts each signature so challenged;[ and the specific] (2) specify the grounds on which [it] the signature is challenged as required by Paragraphs D and E of this rule; [it shall further] (3) identify the line number and the page of the nominating petition where each such signature appears; (4) attach a copy of the nominating petition upon which the signature appears; and (5) attach any exhibits required by Paragraph D of this rule. D. Challenges based on duplicate signatures[; signator signed two petitions]. If any signature is challenged on the ground that the person signing has signed more than one nominating petition for the same office, or has signed one petition more than once, the complaint shall attach as an exhibit all nominating petitions containing such signatures and identify the page and line number on each such [other] petition where the person is alleged to have signed[ and shall attach such other nominating petition as an exhibit]. E. Challenges to the qualifications of the[; unqualified] person

24 Bar Bulletin - August 17, 2009 - Volume 48, No. 33

http://www.nmcompcomm.us/

[signed] signing the petition. If any signature [or signatures are] is challenged on the ground that the person signing is not [a voter of the state, district, county or area to be represented by the office for which the person seeking the nomination is a candidate or on the ground that the person signing is not of the same political party as the candidate named in the nominating petition] qualified to sign the nominating petition, the complaint shall[, in a separate numbered paragraph, allege that the challenge is based on a diligent search of all registration records of the appropriate county and shall] specify as to each signature: (1) that the qualifications of the person signing the nominating petition are challenged because that person: (a) was not a registered member of the candidate's political party ten (10) days prior to the filing of the nominating petition; (b) failed to provide information required by the nominating petition sufficient to determine that the person is a qualified voter of the state, district, county or area to be represented by the office for which the person seeking the nomination is a candidate; (c) is not of the same political party as the candidate named in the nominating petition as shown by the signer's certificate of registration; or (d) is not the person whose name appears on the nominating petition; (2) the voter registration records upon which the challenge relies [the county in which the search was made]; the name and address of each person [making the] ([2]3) who searched the voter registration records upon which the challenge relies; the date on which each search was made; and ([3]4) any variations in names, spelling or addresses for ([4]5) which search was made. F. Waiver. Objection to counting a signature and any ground for rejecting a signature shall be conclusively waived unless set out in the manner above provided within ten (10) days after the last day for filing the challenged nominating petition. G. Disqualification of judge. The provisions of Paragraph C of Rule 1-088.1 NMRA notwithstanding, the plaintiff may exercise the statutory right to excuse the district judge assigned to the case by filing a peremptory election to excuse on the same day the complaint is filed. The plaintiff shall serve notice of the peremptory election to excuse at the same time that the complaint is served and delivered in accordance with Paragraph B of this rule. If more than one plaintiff is named in the complaint, the plaintiffs only may exercise one collective peremptory election to excuse the district judge. The candidate whose nominating petition is challenged may file a peremptory election to excuse the district judge within two (2) days after delivery of the complaint. In all other respects, Rule 1-088.1 NMRA governs the exercise of peremptory elections to excuse the district judge. If there is an excusal for cause or a recusal, the chief justice shall reassign the case to another judge, justice or judge pro tempore to hear all further proceedings. H, Hearing and decision. Within ten (10) days after the complaint is filed, the district court shall hold a hearing and render a decision. I. Appeal. The decision of the district court may be appealed to the Supreme Court in accordance with Rule 12-603 NMRA. [As amended by Supreme Court Order ________________, effective ______________] Committee commentary. ­ The time periods in this rule are to be computed under Rule 1-006 NMRA. [Commentary, adopted by Supreme Court Order ___________, effective ______.]

For the New Mexico Supreme Court and New Mexico Court of Appeals opinions, visit http://www.nmcompcomm.us/

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Bar Bulletin - August 17, 2009 - Volume 48, No. 33 49

New Mexico Board of Legal Specialization

An Agency of the New Mexico Supreme Court

Offering certifications in the following practice areas:

· AppellatePractice · BankruptcyPractice · Employment&LaborLaw · EnvironmentalLaw · EstatePlanning,Trusts&Probate · FamilyLaw · FederalIndianLaw · LocalGovernmentLaw · NaturalResourcesLaw · RealEstateLaw · TaxationLaw · CivilTrialPractice · CriminalTrialPractice · Worker'sCompensation Barry M. Diskant, MD

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M E D I 505.768.7260 r b e i t l e r @ r o d e y. c o m A Over 30 years litigation experience with emphasis T on medical malpractice and tort litigation. I O N

Listed in Best Lawyers in America for medical malpractice law New Mexico Business Weekly's Best of the Bar-2009 AV-rated - Martindale-Hubbell Offices also in Santa Fe www.rodey.com

To schedule an evaluation for your client, please call 505.247.0481 or download our Scheduling Forms at www.drdiskant.com

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Mustafa D. Chudnoff Consulting, LLC

Providing Technical Support and Advice in New Mexico Water and Water Rights, including: Transactional Work, Litigation Support, and Hydrology

505.670.2028 · [email protected]

50 Bar Bulletin - August 17, 2009 - Volume 48, No. 33

Te n a c i o u s

SCRUTINIZERS

{ Tim Kelly, CPA/ABV/CFF, ASA, CMEA Business Valuation, Forensic & Litigation Services }

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Using our extensive experience to your advantage.

BUSINESS VALUATIONS FOR ESTATE AND GIFT TAXES, BUSINESS SUCCESSION, DISPUTE RESOLUTION & PLANNING PURPOSES, COMMERCIAL AND PERSONAL DAMAGES, FORENSIC ACCOUNTING AND EXPERT WITNESS SERVICES

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Would you like to practice law in the cool pines?

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No need for another associate Bespoke lawyering for a new millennium

THE BEZPALKO LAW FIRM Legal Research and Writing

(505) 341-9353 www.bezpalkolawfirm.com

Thriving family law and civil litigation practice along with brand new 8 office location for sale in beautiful Ruidoso, New Mexico.

Visit us at www.LawInThePines.com

Bar Bulletin - August 17, 2009 - Volume 48, No. 33 51

R. LAR THOMAS

B.S. Animal Science/International Agriculture J.D. with over 17 years experience Certified Equine and Livestock Appraiser

Is it time for a fresh assessment of investments and financial plans?

T.C. Schwab Financial Planning LLC offers you and your clients Comprehensive planning from a Certified Financial PlannerTM Professional targeted to individual needs Experienced, ethical, unbiased, independent advice on a strictly hourly-fee only basis Free from conflicts of interest: no product sales, no commissions, no percentage fee based on assets, and no custody of investment portfolio

Please call or visit my website today to arrange a free initial consultation Thomas C. Schwab is a CERTIFIED FINANCIAL PLANNERTM

professional, a Registered Investment Adviser (RIA) in the State of New Mexico, and a member of The Financial Planning Association (National and New Mexico Chapters). Certified Financial Planner Board of Standards Inc. owns the certification marks CFP® and Certified Financial PlannerTM, which it awards to individuals who successfully complete initial and ongoing certification requirements.

505-450-7673 ... for you or your clients?

Consultant/Expert Witness for equine and livestock matters. Dissolution, liquidation and liability cases Phone: considered.

Gratefully Accepting Referrals

Loretta R. Lopez E-mail:

Family Law (505) 243-9293 [email protected]

T. C. Schwab Financial Planning, LLC

WALTER M. DREW

Construction Defects Expert 35 years experience 505-982-9797 [email protected]

52 Bar Bulletin - August 17, 2009 - Volume 48, No. 33 or visit our website:

505-466-2313

tcschwabfinancialplanning.com

David Stotts

Attorney at Law

Business Litigation Real Estate Litigation

Save the Date Alumni Reunion Weekend of September 11 and 12th Honoring Classes of 1954,1959, 1964, 1969, 1974, 1979, 1984, 1989, 1994, 1999 and 2004 http://lawschool.unm.edu/news/reunion-09.php

Please Contact Carmen Rawls for more information 505-277-8184 or [email protected]

242-1933

SECURITY NEGLIGENCE

Special expertise in premise liability, security training and security procedures. Authored four security textbooks, 33 years' combined experience in security and law enforcement. Contact Ron Vause, 918-747-7794. 1-800-728-0191.

Gerald S. Fredman, M.D.

Board Certified Forensic Psychiatrist ­ 32 years experience · Expert Consultations, reports and testimony · Civil Matters including mental anguish, competency of elderly, undue influence, psychiatric malpractice and other psychiatric issues · Criminal Matters including diminished capacity, diminished responsibility, various competencies and other psychiatric issues · Treatment of accident victims for depression, anxiety, PTSD, traumatic brain injury and fear of driving 7113 Prospect Place NE, Albuquerque, NM 87110 505.837.9696 · Email: [email protected]

Bar Bulletin - August 17, 2009 - Volume 48, No. 33 53

WILLIAM LAZAR

Appellate Practice

505-988-7100 [email protected]

Kelly A. Genova, with 20 years experience in liability and workers' compensation defense announces the expansion of her practice. She will now offer mediation and consultation services in cases involving workers' compensation, workers' compensation reimbursement and other complex litigation. Board Recognized Specialist in Workers' Compensation. Multiple Civil Jury Trials.

E-mail: [email protected] | Phone: 505-244-0547

Accepting applications for the 2009-2010 school year. Beginning August 2009, we will be accepting applications for the 2010-2011 school year. Call the Admission Office at 243-6659. Independent, non-profit pre-kindergarten through grade five Manzano Day School admits students without regard to religion, race, color, creed, gender, gender identification, disability, age, sexual orientation, or ethnic background. Bus service available from the Westside & NE Heights.

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Steven L. Tucker

Appeals Specialist AppellateSpecialist

www.stevetucker.net [email protected] (505) 982-3467

Office of the State Engineer/ Interstate Stream Commission (OSE/ISC) Special Assistant Attorney General/ Lawyer - Advanced

ClassifieD

PosiTions

Family Law Attorney Great Opportunity

New Mexico Legal Group, PC, is seeking a family law attorney to join our firm. This is an incredible professional and financial opportunity for the right person. Go to www. NewMexicoDivorce.com and click on the Job Listings link for the full job listing.

The New Mexico Interstate Stream Commission seeks attorney to represent the Agency & its staff in connection with interstate & intrastate water-related matters. Position is located in Santa Fe. Requires a Juris Doctorate from an accredited law school; 4 years experience in the practice of law with a concentration in water law including 1 year transactional experience & current membership in the New Mexico State Bar. Salary range $20.70 - $36.80. Open 8/3/09 ­ 8/31/09. Apply at www.spo.state. nm.us. Refer to Job ID # 20613. The OSE/ISC is an Equal Opportunity Employer.

Commercial Litigation Associate

Rubin Katz Law Firm seeks an associate with 3 to 5 years experience in commercial litigation and courtroom experience. Candidates must have strong academic credentials, good writing skills and work ethic. NM Bar license preferred. Firm practice areas for this position include complex commercial litigation, banking, construction and land use disputes, and other civil litigation. Visit us at www.rubinkatzlaw.com. Please submit cover letter, résumé, transcript, references and writing samples to [email protected]

Associate Attorney

5-10 years experience in Family Law and Civil Litigation: 2019 Galisteo, C3, SF, NM, 87505. Fax 505.989.3440

54 Bar Bulletin - August 17, 2009 - Volume 48, No. 33

www.nmbar.org

Legal Assistant

Law firm specializing in residential foreclosure seeks person with minimum one year of legal experience. Must be detail oriented, able to work independently, accurately and efficiently. Knowledge of WP 9.0 helpful. Fax resume, including salary history & requirements to 2544706 or mail to PO Box 3509, Alb 87190.

Go Have A Beer ­ We'll Handle The Research & Writing

Virtual Litigation Support, LLC provides the highest quality research and writing at irresistibly affordable rates (rates begin at $75/hour). Built-in quality control, all U.S. attorneys, no project too large or too small. VirtualLitigationSupport.com or call today: (877) 727-7176.

Santa Fe Lawyer/ Lobbying Location

One or two offices with ample parking, adjacent to the capitol and the Supreme Court. $700/m/each. Call Greg 505-670-0030.

Top Notch Office Space

Legal Secretary

Downtown insurance defense firm seeking FT legal secretary with 3+ yrs. recent, litigation experience. Current knowledge of State and Federal District Court rules a must. Prior insurance defense experience preferred. Strong work ethic, positive attitude and superior grammar, clerical and organizational skills required. Good benefits. Salary DOE. Send resume and salary requirements to: Personnel, Madison Harbour & Mroz, P.A., P.O. Box 25467, Albuquerque, NM 87125 or fax to 242-7184.

ERISA Referrals Accepted

ERISA referrals accepted for all Federal and State court actions involving Employees Retirement Income Security Act (29 U.S.C., Sec. 1001 et seq), and federal preemption arising thereunder, by Colbert N. Coldwell and Enrique Palomares, of El Paso, Texas, both licensed in New Mexico and Texas. There are real alternatives to most claims of ERISA pre-emption. Call: 915-544-6646 or 915-2252269, or email: [email protected], or [email protected] yahoo.com

Top notch office space approx. 250 sq. ft. Downtown/close to Federal, District, Metro Courts & city-county offices, available August 1st. Share building with well-established law firms at 500 Tijeras NW, Albq. Principal benefits include receptionist [using your existing number], ample on-site parking, 2 large conference rooms, large waiting area, copier/fax equipment with client coding system, stocked kitchen, and more. Must see to appreciate. Good collegiality among 11 attorneys and opportunity for case referrals. Contact Terry Word at 842-1905.

MisCellaneous

Wanted

Attorney to litigate/get to confirmation my Chapter 13 cases. Larry Leshin - 255-4859.

Litigation Paralegal

Walsh, Anderson, Brown, Aldridge & Gallegos P.C., is seeking a Litigation Paralegal for its Albuquerque, New Mexico office. Candidates should possess 2+ years paralegal experience in a Governmental or Legal setting, be familiar with Word/Word Perfect, Access, Power Point and Westlaw. Strong research, database management and document management skills are essential Please note all candidates are subject to a criminal background check. Please email resume, with cover letter and salary requirements, to [email protected] or mail to P. O. Box 2156, Austin, Texas 78768.

offiCe sPaCe

Small Office Available

One small office available in the downtown historic Hudson House. Rent includes telephone, equipment, access to fax, copier, conference rooms, parking, library and reference materials. Referrals and co-counsel opportunities. For more info., call the offices of Leonard DeLayo at 243-3300, ask for Jodi.

Executive Suites

Legal Secretary/Assistant

Move in special $299 downtown 11th/Lomas. Near courthouse. Restroom, lobby, alarm, kitchen, utilities included Call Michael 9072480 own/bkr.

SUBMiSSioN DeADliNeS

All advertising must be submitted by e-mail by 5 p.m. Wednesday, two weeks prior to publication (Bulletin publishes every Monday). Advertising will be accepted for publication in the Bar Bulletin in accordance with standards and ad rates set by the publisher and subject to the availability of space. No guarantees can be given as to advertising publication dates or placement although every effort will be made to comply with publication request. The publisher reserves the right to review and edit classified ads, to request that an ad be revised prior to publication or to reject any ad. Cancellations must be received by 10 a.m. on Thursday, two weeks prior to publication.

A busy general civil litigation firm seeks an experienced full time legal secretary/assistant to join our firm. Skills in Microsoft Word, the ability manage multiple calendars and provide customer service to our clients is required. We request a minimum of five years experience, medical malpractice, and/or insurance defense experience preferred. We offer a pleasant work environment and competitive salary. Generous insurance and 401k benefits offered. Please fax resume to Human Resources at (505) 341-3434 or send to P.O. Box 94750, Albuquerque, NM 87199-4750

Large Uptown Suite

Upscale, 1030 sq.ft. Corner of LA/Candelaria. Reception area, two offices, snack room/office machines area, bathroom. Parking, janitorial. 293-3776.

Lease/Purchase

serviCes

Experienced Lawyer Will Research

Creative, innovative, multi-disciplined, reported cases. R. Kelley (505) 503-7587. [email protected]

Lease/Purchase 1 or 2 offices in landscaped modern 1700sq. ft. bldg. w/conf. rm. kitchen, reception area in lawyers' compound on St. Michael's Dr. near hospital: AC, carpeted, ample parking, high speed machines available. Wi-Fi Comcast. $18 sq. ft. Please contact Mike or Beverly at 505-995-8066 or 505-984-2921.

Beautiful Adobe

Close to downtown, courthouses, hospitals. Reception area, conference rooms, employee lounge included. Copy machine available. Ample free parking and easy freeway access. From $ 195.00 per mo. Utilities included. Oak Street Professional Bldg., 500 Oak St. N. E. Call Jon, 507-5145; Orville or Judy, 867-6566.

For more advertising information, contact: Marcia C. Ulibarri at 505.797.6058 or e-mail [email protected]

Bar Bulletin - August 17, 2009 - Volume 48, No. 33 55

Introduces our two newest OF COUNSEL Attorneys

Licensed in New Mexico, Washington DC, and Virginia (pending) Chambers USA America's Leading Lawyer for Native American Law NM Board Certified Specialist in Federal Indian Law

Nancy J. Appleby

On-reservation and Tribal Financing, Secured Transactions

DC Superlawyer

JD Herrera NM Board Certified Criminal Trial Specialist Southwest Superlawyer *** Nancy and JD join us at Stetson Law to offer a unique range of legal services in Indian Country. Cate Stetson NM Board Certified Specialist in Federal Indian Law Southwest Superlawyer Timothy Humphrey Sr. Jana L. Walker (Loyal Shawnee/Cherokee/Delaware) NM Board Certified Specialist in Federal Indian Law Southwest Superlawyer Jennifer Lee Bradley Philomena Hausler W. Richard West, Jr., Of Counsel (Southern Cheyenne) Founding Director of the Smithsonian's National Museum of the American Indian Kelly A. Skalicky, Of Counsel

Offices

In Indian Country: 1305 Rio Grande NW, Albuquerque, NM 87104 On the Hill: 1455 Pennsylvania NW, Suite 400, Washington DC 20004 In the Big Apple: 415 Madison Avenue, 15th floor, NYC, NY 10017

www.StetsonLaw.com

(505) 256-4911

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