NEW MEXICO BOARD OF LEGAL SPECIALIZATION AN AGENCY OF THE SUPREME COURT OF NEW MEXICO STANDARDS FOR LEGAL SPECIALIZATION APPELLATE PRACTICE

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1 NEW MEXICO BOARD OF LEGAL SPECIALIZATION AN AGENCY OF THE SUPREME COURT OF NEW MEXICO Post Office Box Albuquerque, New Mexico (505) Fax (505) STANDARDS FOR LEGAL SPECIALIZATION APPELLATE PRACTICE By virtue of the authority vested in the Appellate Practice Specialty Committee (Committee), and the New Mexico Board of Legal Specialization (Board) by the New Mexico Supreme Court (Court), the Board adopts the following standards and procedures for certification, recertification, and decertification as a specialist in Appellate Practice. I. GENERAL REQUIREMENTS AND DEFINITIONS A. All applicants for certification or recertification in Appellate Practice must be active members in good standing of the New Mexico Bar and shall meet the requirements for certification or recertification governed by the Rules of the New Mexico Board of Legal Specialization and prescribed by the Committee. B. Forms, documents, applications, questionnaires, and examinations involved in the certification, recertification, or decertification process, as well as fees required of applicants and certified lawyers shall be as prescribed by the Committee and the Board. C. Certification shall be for a period of five years at the end of which time recertification shall be permitted as indicated in IV, below. D. Appellate Practice is the practice of law dealing with all procedural and substantive aspects of all matters in federal and state appellate courts. E. Applicants for certification or recertification shall furnish satisfactory evidence of their good character and reputation. Unless otherwise prohibited by the Supreme Court Rules on Disciplinary Procedures, they shall also provide information in whatever form required by the Committee as to whether they are now subject to an investigation, complaint, inquiry, or other disciplinary proceedings by any segment of the Bar, including but not limited to any local, state, or other grievance board, committee, or commission; and if so, the details of such investigation, complaint, inquiry, or proceedings including whether they have ever been reprimanded, suspended, disbarred, or otherwise disciplined by any court or grievance committee. F. The Committee may recommend denial of certification or recertification on a finding of a grievance committee, a court, or administrative agency or other governmental agency that an applicant has been guilty of professional misconduct, or may defer its recommendation on certification or recertification based upon the pendency of such proceedings. However, the Committee will consider the seriousness of the underlying 1

2 facts of the grievance, the passage of time since such discipline, the applicant s experience since that time, and any history of other disciplinary actions or pending actions. Failure to disclose such information is a material misrepresentation and may be cause for denial of the application. G. An applicant shall apply for certification or recertification as a specialist by completing and filing with the Committee an application form furnished by the Board calling for information indicative of and relevant to the applicant's involvement experience, competency, and practice in the field of Appellate Practice in accordance with Rule NMRA. By completing and filing such application, the applicant shall be deemed to have authorized the Committee and the Board to take all appropriate action to resolve any questions with respect to the applicant's involvement, experience, competency, and practice in the field of Appellate Practice and to verify the information furnished by the applicant in making the application. In the appraisal of each applicant, the Committee will take such steps as it deems advisable or necessary under the circumstances to assure that the applicant presented to the Board for certification as a specialist is a lawyer who is technically competent in the field and of whom the Committee has no notice of any personal or ethical deficiencies that might impair the applicant s professional performance as a specialist. Accordingly, the Committee shall require each applicant to disclose any information needed to determine whether to present their application to the Board for certification. The Committee not only may verify information submitted by the applicant, but may, in its discretion, conduct its own investigation into the applicant's competency, experience, involvement and reputation. Should the Committee determine that an applicant's competency, character, experience, involvement, or reputation does not support his/her application for certification, the Committee shall recommend denial of the application subject to such rights of hearing and appeal as may be promulgated by the Board and the Court. H. In accordance with Rule NMRA and II D, an applicant shall submit the names and addresses of at least three (3) lawyers licensed in New Mexico engaged in the practice of law as defined in II A, and at least one (1) of whom has opposed the applicant in appellate proceedings. The applicant shall also submit the names and address of two (2) sitting or former state or federal appellate judges who are familiar with the applicant's practice and who are not partners or associates of the applicant or members of the Committee, the Board or the New Mexico Supreme Court, to be contacted as references to attest to the applicant s experience, involvement, and competency in Appellate Practice, and as otherwise set forth in Rule (E) NMRA and II D below. The Committee may, in its discretion, and without notice to an applicant, secure information concerning an applicant's practice, involvement, experience, and competency in the specialty area from lawyers and judges other than those whose names are submitted by an applicant. I. In addition to other requirements herein, the Committee may, in its sole discretion, require additional information from a particular applicant when in its judgment such additional information is necessary to a decision with respect to certification, recertification, or decertification. 2

3 II. MINIMUM STANDARDS FOR CERTIFICATION A. REQUIRED PERIOD OF LAW PRACTICE Applicants shall have been engaged in the practice of law for a period of 5 years on a full-time basis. Practice of law means full-time legal work done primarily for the purpose of providing legal advice or representation services, after admission to the Bar of any state or the District or Columbia, including service as a judge of any court of record, administrative law judge, arbitrator, law teacher or judicial clerk (at state and federal courts and administrative agencies). Corporate or government service, including military service, as an attorney, after admission to the Bar of any state or the District of Columbia, shall be considered practice of law if the work done was legal in nature and primarily for the purpose of giving legal advice to, or representation of, the corporation or government agency or individuals primarily connected with the corporation or government agency. B. SUBSTANTIAL INVOLVEMENT Applicants must show substantial involvement and special competency in Appellate Practice as a licensed New Mexico attorney during the three years immediately preceding application by providing such information as may be required by the Committee and as set forth in Rules19-203(C) NMRA. During each of the three years immediately preceding application, applicants must show compliance with either II B.1 or II B.2. For purposes of II B.1 and II B.2, an attorney primarily responsible shall mean an attorney who had primary decision-making responsibility with regard to the procedural and substantive aspects of the matter. 1. Time-Spent Unless the applicant qualifies under II B.2, the applicant s time devoted to the practice of Appellate Practice as defined herein (see I D) during each of the three (3) years immediately preceding application was not less than 25% of a normal full-time practice of law, or the equivalent annual hours (i.e., 520 hours based on a work year of 2080 hours). a. For purposes of this requirement, appellate practice shall include any legal services related to an appellate proceeding or extraordinary writ proceeding performed by an attorney primarily responsible for the matter. b. In addition to time spent in Appellate Practice as defined in II B.1.a, time spent in the preparation for or attendance at Appellate Rules Committee meetings and time spent in the preparation and performance of teaching or lecturing courses in Appellate Practice, in legal research, in legal writing, or in oral advocacy either at an accredited law school or at an accredited continuing legal education program approved by the Minimum Continuing Legal Education Board, or in attendance at such courses or programs, shall be equivalent to time spent in Appellate Practice for purposes of this requirement. c. Service as a justice or judge on a state or federal appellate court or as a staff attorney in the pre-hearing division of a New Mexico appellate 3

4 court for twenty-four (24) months or more during the three (3) years preceding the application shall be considered to have satisfied the requirements of II B.1 for two (2) of those years. The applicant under this section must also demonstrate that during the one (1) year immediately before or after such service, regardless of the length of such service, the applicant s time spent in Appellate Practice meets the requirements of II B.1. d. Service as a law clerk to a state or federal appellate judge or as a staff attorney for an appellate court outside of New Mexico for twelve (12) months or more during the three (3) years preceding application shall be considered to have satisfied the requirement of II B.1.a for one (1) of those years. The applicant under this section must also demonstrate that during the two (2) years immediately before or after such service, regardless of the length of such service, the applicant s time spent in Appellate Practice meets the requirements of II B Number of Matters Unless the applicant qualifies under II B.1, the applicant shall have been primarily responsible for handling nine (9) or more appeals, at least through the briefing on the merits, during the three (3) year period immediately preceding the application. a. The term "appeal" shall mean one of the following: (i) an appeal from a New Mexico district court or administrative agency to the New Mexico Supreme Court or the New Mexico Court of Appeals, or a comparable appeal from a trial court of general jurisdiction of another state to one of the state s appellate courts; (ii) proceedings in a state appellate court on a writ of error where the writ of error is issued and the proceedings are treated as an appeal; (iii) an action removed from the State Corporation Commission to the New Mexico Supreme Court; (iv) an appeal from a federal district court, bankruptcy court, or a federal administrative agency to a federal circuit court of appeals; (v) proceedings on a petition for writ of certiorari or appeal to the Supreme Court of the United States where the petition or appeal is granted; or (vi) an interlocutory appeal to a state or federal appellate court where the application for interlocutory appeal is granted by the appellate court; b. The phrase "briefing on the merits" means the filing by the applicant of the main brief on the merits of the appeal. It does not include 4

5 memoranda in support of, or in opposition to, summary disposition proposed in a calendar notice. c. An appeal which meets the requirements of II B.2.a-b may be included in the number of appeals required if the applicant performed any substantial services in connection with that appeal during the three (3) years immediately preceding application. C. CONTINUING LEGAL EDUCATION - MINIMUM REQUIREMENTS During the three years preceding application for initial certification, applicants must have earned credit for not less than 30 hours of continuing legal education (CLE) in approved courses or programs dealing with Appellate Practice, Legal Research, Legal Writing, or Oral Advocacy. For the purpose of this requirement, approved courses or programs shall mean courses/programs approved by the Committee for the Appellate Practice specialty or courses/programs that would qualify for such approval as set forth in Rules (D) and NMRA. D. PEER REVIEW The applicant shall make a satisfactory showing of qualification through peer review by providing five (5) references of whom two (2) shall be sitting or former, state or federal appellate judges and three (3) shall be attorneys, at least one (1) of whom has opposed the applicant in appellate proceedings. The references provided must be familiar with the competence and qualifications of the applicant within the three (3) years preceding application, and must otherwise meet criteria set forth in Rules (E) and NMRA. E. REQUIRED SUBMISSION The applicant shall submit with the application the following documents prepared primarily by the applicant during the time in which the applicant is required to satisfy II B.1 or II B.2: a principal brief for the appellant, a principal brief for the appellee, and one of either a motion for rehearing, petition for writ of certiorari, petition for extraordinary writ, or application for writ of error or interlocutory appeal. F. EXAMINATION No written or oral examination is presently required in the specialty area of Appellate Practice. However, the Board may require a written or oral examination in the future for either initial recognition, recertification or both. G. FEES Applicants shall timely pay the fees established from time to time by the Committee and/or Board, including but not limited to application fees, filing fees, examination fees, and certification fees. 5

6 H. FAILURE, TO FURNISH INFORMATION; MISREPRESENTATION Certification or recertification may be denied because of an applicant's failure to furnish requested information or because of misrepresentation of any material fact requested by the Committee. III. REQUIREMENTS FOLLOWING CERTIFICATION A. The annual continuing legal education (CLE) requirement for all certified Appellate Practice specialists shall be 10 hours of approved specialty CLE. CLE credit in excess of 10 hours may be carried forward to the next calendar year. Provided, however, that each calendar year, certified specialists in Appellate Practice shall complete at least six (6) hours of specialty CLE without regard to any carry forward credit from the prior year. Approved specialty continuing legal education means educational activities approved by the Committee for the specialty and as set forth in Rules (B)(2) and NMRA. B. Each certified specialist must pay such fees as the Board may from time to time prescribe. C. During the period of certification, all certified specialists must continue to practice law and to be substantially involved in the practice of Appellate Practice (see II, A & B, regarding the meaning of practice of law and substantially involved in the practice of Appellate Practice). Should any certified specialist cease to practice law or to be substantially involved in the practice of Appellate Practice, he/she shall promptly notify the Committee for such action with respect to decertification as the Committee shall deem to be appropriate. The failure of a certified specialist to notify the Committee that he/she is no longer engaged in the practice of law or substantially involved in the practice of Appellate Practice may constitute grounds for decertification of the individual concerned. D. During any period of initial or subsequent certification, each certified specialist shall report to the Board any administrative action or malpractice claim in which settlement is made or suit is filed and unless otherwise prohibited by Supreme Court Rules on Disciplinary Procedures, shall likewise report to the Board any case in which he/she learns that he/she is the subject of an investigation, inquiry or other disciplinary proceedings by any segment of the Bar, including but not limited to any local, state or other grievance board, committee or commission. IV. RECERTIFICATION A. Renewal of certification shall be required every five years as set forth in Rule NMRA and the additional standards set forth above for initial certification as a specialist in Appellate Practice. B. Applicants must demonstrate their continuing substantial involvement and special competency in the practice of Appellate Practice as may be required by the Committee. However, except as provided in IV C and IV D below, requirements for recertification shall not exceed the requirements for original certification. 6

7 C. To qualify for recertification, applicants must demonstrate the completion of a minimum of 50 hours of approved specialty continuing legal education (CLE) in the five years since their original or latest certification. D. Unless the applicant qualifies under II B.1, the applicant shall have been primarily responsible for handling twelve (12) or more appeals, at least through the briefing on the merits, during the five (5) year period immediately preceding the recertification application. V. WAIVERS In cases of rare and unusual circumstances, the Appellate Practice Specialty Committee may request a waiver of compliance with any of the standards for certifying or recertifying an individual as a specialist in Appellate Practice. The Board, upon recommendation from the Committee, may waive a showing of compliance with these standards for certification or continued certification as a specialist in Appellate Practice if circumstances so warrant. Such waiver must be based upon specific findings of fact by the Committee showing why such waiver is not inconsistent with the objectives of these Appellate Practice standards. Such waiver may be conditioned by the Board upon meeting substitute requirements. A waiver may not be granted to certify an individual who has not practiced law for at least three years and who has not been substantially involved in the practice of Appellate Practice for at least three years, or who does not meet the minimum standards set forth in the Rules of the New Mexico Board of Legal Specialization (Rules to NMRA). VI. AMENDMENT The Board reserves the right at any time, and from time to time, to amend the standards for specialization in Appellate Practice, whether or not applications are pending. VII. EFFECTIVE DATE These Standards and Procedures shall be effective January 1997 or whenever approved by the New Mexico Board of Legal Specialization, whichever date is later. [Amended January 1997; August 14, 2004; December 11, 2004; February 4, 2006] 7