qualified immunity in New Mexico

2008See Carrillo, 114 N.M. at 614-16 , 845 P.2d at 137-39 ; Chavez v. Bd. of County Comm’rs, 2001-NMCA-065, ¶ 10 , 130 N.M. 753 , 31 P.3d 1027 ; Sugg v. Albuquerque Pub.

2008See Carrillo, 114 N.M. at 614-16 , 845 P.2d at 137-39 ; Chavez v. Bd. of County Comm’rs, 2001-NMCA-065, ¶ 10 , 130 N.M. 753 , 31 P.3d 1027 ; Sugg v. Albuquerque Pub.

2008See, e.g., Baker, 117 N.M. at 282-83 , 871 P.2d at 378-79 (observing that statements made by a former employer to the governor’s office and the attorney general about a candidate for employment with the New Mexico State Police were subject to a qualified privilege, insofar as the statements were made by and to persons or entities with legitimate interests at stake).

2008See, e.g., Baker, 117 N.M. at 282-83 , 871 P.2d at 378-79 (observing that statements made by a former employer to the governor’s office and the attorney general about a candidate for employment with the New Mexico State Police were subject to a qualified privilege, insofar as the statements were made by and to persons or entities with legitimate interests at stake).

2006Hourigan v. Cassidy, 2001-NMCA-085, ¶ 12 , 131 N.M. 141 , 33 P.3d 891 ; see also Cockrell v. Bd. of Regents of NMSU, 1999-NMCA-073, ¶¶ 25, 26 , 127 N.M. 478 , 983 P.2d 427 (holding that where there are no “core, fact-related disputes” as to what occurred, then qualified immunity may be decided as a matter of law), cert. granted, 129 N.M. 250 , 4 P.3d 1241 , cert. granted, judgment vacated on other grounds by 527 U.S. 1032 , 119 S.Ct. 2389 , 144 L.Ed.2d 791 (1999), appeal after remand, 2002-NMSC-009 , 132 N.M. 156 , 45 P.3d 876 . {12} Qualified immunity grants not only immunity from damages but

2006Hourigan v. Cassidy, 2001-NMCA-085, ¶ 12 , 131 N.M. 141 , 33 P.3d 891 ; see also Cockrell v. Bd. of Regents of NMSU, 1999-NMCA-073, ¶¶ 25, 26 , 127 N.M. 478 , 983 P.2d 427 (holding that where there are no “core, fact-related disputes” as to what occurred, then qualified immunity may be decided as a matter of law), cert. granted, 129 N.M. 250 , 4 P.3d 1241 , cert. granted, judgment vacated on other grounds by 527 U.S. 1032 , 119 S.Ct. 2389 , 144 L.Ed.2d 791 (1999), appeal after remand, 2002-NMSC-009 , 132 N.M. 156 , 45 P.3d 876 . {12} Qualified immunity grants not only immunity from damages but

2022See Garcia v. Gordon, 2004-NMCA-114, ¶ 8 , 136 N.M. 394 , 98 P.3d 1044 (“Pure comparative negligence denies recovery for one’s own fault; it permits recovery to the extent of another’s fault; and it holds all parties fully responsible for their own respective acts to the degree that those acts have caused harm.” (internal quotation marks and citation omitted)).

2022See Garcia v. Gordon, 2004-NMCA-114, ¶ 8 , 136 N.M. 394 , 98 P.3d 1044 (“Pure comparative negligence denies recovery for one’s own fault; it permits recovery to the extent of another’s fault; and it holds all parties fully responsible for their own respective acts to the degree that those acts have caused harm.” (internal quotation marks and citation omitted)).

2015The “common law” with which courts begin their analyses is “the general common 9 law tradition, rather than . . . the law as defined by the jurisdiction where the action 10 originated.” Pierce, 359 F.3d at 1289 . 11 {6} “The doctrine of qualified immunity protects government officials from 12 liability for civil damages insofar as their conduct does not violate clearly established 13 statutory or constitutional rights of which a reasonable person would have known.” 14 Pearson v. Callahan, 555 U.S. 223, 231 (2009) (internal quotation marks and citation 15 omitted).

2015The “common law” with which courts begin their analyses is “the general common law tradition, rather than . . . the law as defined by the jurisdiction where the action originated.” Pierce, 359 F.3d at 1289 . {6} “The doctrine of qualified immunity protects government officials from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (internal quotation marks and citation omitted).

2007See Reynolds, 142 P.3d at 1069 (stating that the qualified privilege "does not protect lawyers who are representing clients but who act only in their own self-interest and contrary to their clients' interest" and does not protect lawyers whose actions "fall within the `crime or fraud' exception" to the attorney-client privilege provided in the rules of professional conduct); see also Rule 16-102(D) NMRA (discussing crime or fraud in the context of scope of representation); Rule 16-106(B), (C) NMRA (discussing crime or fraud in the context of confidentiality).

2007See Reynolds, 142 P.3d at 1069 (stating that the qualified privilege “does not protect lawyers who are representing clients but who act only in their own self-interest and contrary to their clients’ interest” and does not protect lawyers whose actions “fall within the ‘crime or fraud’ exception” to the attorney-client privilege provided in the rules of professional conduct); see also Rule 16-102(D) NMRA (discussing crime or fraud in the context of scope of representation); Rule 16-106(B), (C) NMRA (discussing crime or fraud in the context of confidentiality).

2006Yount v. Millington, 117 N.M. 95, 102 , 869 P.2d 283, 290 (Ct.App.1993).

2006Yount v. Millington, 117 N.M. 95, 102 , 869 P.2d 283, 290 (Ct.App.1993).

2006Ctr., 112 N.M. 441, 443-44 , 816 P.2d 510, 512-13 (Ct.App.1991). {11} However, under § 1983, an individual official’s liability is limited by the doctrine of qualified immunity, which shields government officials performing discretionary functions “from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Id. (internal quotation marks and citation omitted); see also Doe v. Leach, 1999-NMCA-117, ¶ 11 , 128 N.M. 28 , 988 P.2d 1252 (stating that qualified immunity “provides ampl

2006Ctr., 112 N.M. 441, 443-44 , 816 P.2d 510, 512-13 (Ct.App.1991). {11} However, under § 1983, an individual official’s liability is limited by the doctrine of qualified immunity, which shields government officials performing discretionary functions “from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Id. (internal quotation marks and citation omitted); see also Doe v. Leach, 1999-NMCA-117, ¶ 11 , 128 N.M. 28 , 988 P.2d 1252 (stating that qualified immunity “provides ampl

2006Ctr., 112 N.M. 441, 443-44 , 816 P.2d 510, 512-13 (Ct.App.1991). {11} However, under § 1983, an individual official’s liability is limited by the doctrine of qualified immunity, which shields government officials performing discretionary functions “from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Id. (internal quotation marks and citation omitted); see also Doe v. Leach, 1999-NMCA-117, ¶ 11 , 128 N.M. 28 , 988 P.2d 1252 (stating that qualified immunity “provides ampl

2006Ctr., 112 N.M. 441, 443-44 , 816 P.2d 510, 512-13 (Ct.App.1991). {11} However, under § 1983, an individual official’s liability is limited by the doctrine of qualified immunity, which shields government officials performing discretionary functions “from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Id. (internal quotation marks and citation omitted); see also Doe v. Leach, 1999-NMCA-117, ¶ 11 , 128 N.M. 28 , 988 P.2d 1252 (stating that qualified immunity “provides ampl

2006Hourigan v. Cassidy, 2001-NMCA-085, ¶ 12 , 131 N.M. 141 , 33 P.3d 891 ; see also Cockrell v. Bd. of Regents of NMSU, 1999-NMCA-073, ¶¶ 25, 26 , 127 N.M. 478 , 983 P.2d 427 (holding that where there are no “core, fact-related disputes” as to what occurred, then qualified immunity may be decided as a matter of law), cert. granted, 129 N.M. 250 , 4 P.3d 1241 , cert. granted, judgment vacated on other grounds by 527 U.S. 1032 , 119 S.Ct. 2389 , 144 L.Ed.2d 791 (1999), appeal after remand, 2002-NMSC-009 , 132 N.M. 156 , 45 P.3d 876 . {12} Qualified immunity grants not only immunity from damages but

2006Hourigan v. Cassidy, 2001-NMCA-085, ¶ 12 , 131 N.M. 141 , 33 P.3d 891 ; see also Cockrell v. Bd. of Regents of NMSU, 1999-NMCA-073, ¶¶ 25, 26 , 127 N.M. 478 , 983 P.2d 427 (holding that where there are no “core, fact-related disputes” as to what occurred, then qualified immunity may be decided as a matter of law), cert. granted, 129 N.M. 250 , 4 P.3d 1241 , cert. granted, judgment vacated on other grounds by 527 U.S. 1032 , 119 S.Ct. 2389 , 144 L.Ed.2d 791 (1999), appeal after remand, 2002-NMSC-009 , 132 N.M. 156 , 45 P.3d 876 . {12} Qualified immunity grants not only immunity from damages but

1973We have found no better expression for the reasoning that immunity in a qualified form is applicable than is set forth in Jobson v. Henne, 355 F.2d 129, 133 (2nd Cir. 1966), as follows: “It should be equally clear that both the language and the purpose of the Civil Rights Acts are inconsistent with the application of common law notions of official immunity in all suits brought under these provisions.

1973We have found no better expression for the reasoning that immunity in a qualified form is applicable than is set forth in Jobson v. Henne, 355 F.2d 129, 133 (2nd Cir.1966), as follows: "It should be equally clear that both the language and the purpose of the Civil Rights Acts are inconsistent with the application of common law notions of official immunity in all suits brought under these provisions.

2001Qualified immunity "shield[s] [government officials performing *1089 discretionary functions] from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Id. at 818 , 102 S.Ct. 2727 .

2001Qualified immunity "shield[s] [government officials performing *1089 discretionary functions] from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Id. at 818 , 102 S.Ct. 2727 .

2001On appeal, Plaintiff does not assert that Defendants waived qualified immunity by failing to appeal the trial court’s denial of summary judgment; however, we address the issue of waiver as a preliminary matter to clarify the law regarding when the defense of qualified immunity may be asserted below and raised on appeal by defendants. {10} Qualified immunity is not only a defense to liability but also “an entitlement not to stand trial or face the other burdens of litigation.” Mitchell v. Forsyth, 472 U.S. 511, 526 , 105 S.Ct. 2806 , 86 L.Ed.2d 411 (1985).

2001On appeal, Plaintiff does not assert that Defendants waived qualified immunity by failing to appeal the trial court’s denial of summary judgment; however, we address the issue of waiver as a preliminary matter to clarify the law regarding when the defense of qualified immunity may be asserted below and raised on appeal by defendants. {10} Qualified immunity is not only a defense to liability but also “an entitlement not to stand trial or face the other burdens of litigation.” Mitchell v. Forsyth, 472 U.S. 511, 526 , 105 S.Ct. 2806 , 86 L.Ed.2d 411 (1985).

1999Qualified immunity “provides ample protection to all but the plainly incompetent or those who knowingly violate the law.” Malley, 475 U.S. at 341 , 106 S.Ct. 1092 ; accord Cockrell v. Board of Regents, 1999-NMCA-073, ¶ 8 , 127 N.M. 478 , 983 P.2d 427 (Ct.App.1999).

1999Qualified immunity “provides ample protection to all but the plainly incompetent or those who knowingly violate the law.” Malley, 475 U.S. at 341 , 106 S.Ct. 1092 ; accord Cockrell v. Board of Regents, 1999-NMCA-073, ¶ 8 , 127 N.M. 478 , 983 P.2d 427 (Ct.App.1999).

2007Baker v. Bhajan, 117 N.M. 278, 283 , 871 P.2d 374, 379 (1994) (“A conditional or qualified privilege will be lost if it is abused.”); Bookout v. Griffin, 97 N.M. 336, 339 , 639 P.2d 1190, 1193 (1982) (“[Qualified privilege exists where there is a good faith publication in the discharge of a public or private duty.”); see, e.g., Williams v. Bd. of County Comm’rs, 1998-NMCA-090, ¶ 22 , 125 N.M. 445 , 963 P.2d 522 (assuming without deciding for purposes of the discussion).

2007Baker v. Bhajan, 117 N.M. 278, 283 , 871 P.2d 374, 379 (1994) (“A conditional or qualified privilege will be lost if it is abused.”); Bookout v. Griffin, 97 N.M. 336, 339 , 639 P.2d 1190, 1193 (1982) (“[Qualified privilege exists where there is a good faith publication in the discharge of a public or private duty.”); see, e.g., Williams v. Bd. of County Comm’rs, 1998-NMCA-090, ¶ 22 , 125 N.M. 445 , 963 P.2d 522 (assuming without deciding for purposes of the discussion).

2001See Anderson, 483 U.S. at 640 , 107 S.Ct. 3034 .

1994Qualified immunity shields government officials from liability “as long as their actions could reasonably have been thought consistent with the rights they are alleged to have violated.” Id.

2002Qualified privilege allows the fact finder to “balance the competing interests at stake: shielding corporate officers when they act in good faith in furtherance of corporate goals, but withdrawing that protection if they use corporate power simply to serve their own, personal ends.” Ettenson v. Burke, 2001-NMCA-003, ¶ 26 , 130 N.M. 67 , 17 P.3d 440 (discussing qualified privilege in the context of a tortious interference with contract claim) (citation omitted). {14} Courts that reject the intracorporate communication exception conclude that a qualified privilege adequately protects the corpora

2002Qualified privilege allows the fact finder to “balance the competing interests at stake: shielding corporate officers when they act in good faith in furtherance of corporate goals, but withdrawing that protection if they use corporate power simply to serve their own, personal ends.” Ettenson v. Burke, 2001-NMCA-003, ¶ 26 , 130 N.M. 67 , 17 P.3d 440 (discussing qualified privilege in the context of a tortious interference with contract claim) (citation omitted). {14} Courts that reject the intracorporate communication exception conclude that a qualified privilege adequately protects the corpora

1973As was stated in Stewart v. Ging, 64 N.M. 270 , 327 P.2d 333 (1958), “[ajbsolute immunity from responsibility without regard to purpose, motive, or reasonableness of conduct is, and should be, confined to a very few rather well-recognized situations.” However, we do believe that the facts of this case give rise to a qualified immunity.

1973As was stated in Stewart v. Ging, 64 N.M. 270 , 327 P.2d 333 (1958), “[ajbsolute immunity from responsibility without regard to purpose, motive, or reasonableness of conduct is, and should be, confined to a very few rather well-recognized situations.” However, we do believe that the facts of this case give rise to a qualified immunity.

2006Hourigan v. Cassidy, 2001-NMCA-085, ¶ 12 , 131 N.M. 141 , 33 P.3d 891 ; see also Cockrell v. Bd. of Regents of NMSU, 1999-NMCA-073, ¶¶ 25, 26 , 127 N.M. 478 , 983 P.2d 427 (holding that where there are no “core, fact-related disputes” as to what occurred, then qualified immunity may be decided as a matter of law), cert. granted, 129 N.M. 250 , 4 P.3d 1241 , cert. granted, judgment vacated on other grounds by 527 U.S. 1032 , 119 S.Ct. 2389 , 144 L.Ed.2d 791 (1999), appeal after remand, 2002-NMSC-009 , 132 N.M. 156 , 45 P.3d 876 . {12} Qualified immunity grants not only immunity from damages but

2006Hourigan v. Cassidy, 2001-NMCA-085, ¶ 12 , 131 N.M. 141 , 33 P.3d 891 ; see also Cockrell v. Bd. of Regents of NMSU, 1999-NMCA-073, ¶¶ 25, 26 , 127 N.M. 478 , 983 P.2d 427 (holding that where there are no “core, fact-related disputes” as to what occurred, then qualified immunity may be decided as a matter of law), cert. granted, 129 N.M. 250 , 4 P.3d 1241 , cert. granted, judgment vacated on other grounds by 527 U.S. 1032 , 119 S.Ct. 2389 , 144 L.Ed.2d 791 (1999), appeal after remand, 2002-NMSC-009 , 132 N.M. 156 , 45 P.3d 876 . {12} Qualified immunity grants not only immunity from damages but

1995However, if the qualified immunity defense presents "disputed factual issues, or ... mixed questions of fact and law, an immediate appeal will not lie, and review of the qualified immunity determination will have to await the district court's resolution of the factual questions." DiMarco v. Rome Hosp., 952 F.2d 661 , 665 (2d Cir.1992); see also Johnson v. Jones, --- U.S. ----, ----, 115 S.Ct. 2151, 2159 , 132 L.Ed.2d 238 (1995) (holding that "a defendant, entitled to invoke a qualified-immunity defense, may not appeal a district court's summary judgment order insofar as that order determines w

1995However, if the qualified immunity defense presents "disputed factual issues, or ... mixed questions of fact and law, an immediate appeal will not lie, and review of the qualified immunity determination will have to await the district court's resolution of the factual questions." DiMarco v. Rome Hosp., 952 F.2d 661 , 665 (2d Cir.1992); see also Johnson v. Jones, --- U.S. ----, ----, 115 S.Ct. 2151, 2159 , 132 L.Ed.2d 238 (1995) (holding that "a defendant, entitled to invoke a qualified-immunity defense, may not appeal a district court's summary judgment order insofar as that order determines w

1992In adopting the qualified privilege, the Supreme Court recognized “a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” New York Times, 376 U.S. at 270 , 84 S.Ct. at 720 .

1992In adopting the qualified privilege, the Supreme Court recognized “a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” New York Times, 376 U.S. at 270 , 84 S.Ct. at 720 .

2025This may well be the reason New Mexico 8 appellate jurisprudence is bereft of authority bestowing any degree of immunity to 9 retained counsel, and given no such precedent has emerged, we decline to so hold. 10 {16} Third, although we acknowledge a qualified privilege of immunity for 11 attorneys, as agents of their clients, is recognized in some other jurisdictions, see 12 Heffernan v. Hunter, 189 F.3d 405, 411-14 (3d Cir. 1999) (acknowledging “the 13 general rule that a corporation cannot conspire with its agents” and concluding that 14 the attorney there at issue was acting in “the scope of

2020While “[§] 1983 provides a cause of action for money damages against a state official in his or her individual capacity for the deprivation of federal constitutional or statutory rights[,]” Garcia-Montoya v. State Treasurer’s Office, 2001-NMSC-003, ¶ 8 , 130 N.M. 25 , 16 P.3d 1084 , “an individual official’s liability is limited by the doctrine of qualified immunity, which shields government officials performing discretionary functions from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person w

2020While “[§] 1983 provides a cause of action for money damages against a state official in his or her individual capacity for the deprivation of federal constitutional or statutory rights[,]” Garcia-Montoya v. State Treasurer’s Office, 2001-NMSC-003, ¶ 8 , 130 N.M. 25 , 16 P.3d 1084 , “an individual official’s liability is limited by the doctrine of qualified immunity, which shields government officials performing discretionary functions from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person w