New Mexico Statutes

N.M. Stat. § 31-16-10 (2026)

Counsel not subject to liability

✓ current as of May 2026
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No attorney assigned or contracted with to perform services under the Indigent Defense Act shall be held liable in any civil action respecting his performance or nonperformance of such services.

History: 1953 Comp., § 41-22-10, enacted by Laws 1968, ch. 69, § 67.

ANNOTATIONS

Immunity extends to those under contract to public defender. — The Public Defender Act (31-15-1 to 31-15-12) does not contain any language about immunity or lack of immunity, but reading the Public Defender Act and the Judgment Defense Act in pari materia, the legislature intended the immunity granted in this section to attorneys appointed under the Indigent Defense Act to apply also to those appointed because they are under contract to the public defender. Herrera v. Sedillo, 1987-NMCA-098, 106 N.M. 206, 740 P.2d 1190.

Immunity not violation of equal protection. — Public defenders, whether regular employees of the public defender's office or performing as contractors, are immune from malpractice claims, and statutes providing such immunity did not violate the equal protection rights of a former prisoner. Coyazo v. State, 1995-NMCA-056, 120 N.M. 47, 897 P.2d 234.

Am. Jur. 2d, A.L.R. and C.J.S. references. — Incompetency, negligence, illness or the like of counsel as ground for new trial or reversal in criminal case, 24 A.L.R. 1025, 64 A.L.R. 436.

Attorney's refusal to accept appointment to defend indigent, or to proceed in such defense, as contempt, 36 A.L.R.3d 1221.

Court-appointed attorney as subject to liability under 42 U.S.C.S. § 1983, 36 A.L.R. Fed. 594.

ARTICLE 16A Preprosecution Diversion

Notes of Decisions
Cited in 6 cases, 1987–2012 · leading case: Collins on Behalf of Collins v. Tabet, 806 P.2d 40 (N.M. 1991).
Collins on Behalf of Collins v. Tabet, 806 P.2d 40 (N.M. 1991). · cites it 4× “In this respect, he is like the physician rendering professional services which are paid for out of public funds and, like that physician, he ought to be subject to liability for tortious conduct. [6] [Citations omitted.] *51 Of course, in New Mexico the legislature has decided…”
Coyazo v. State, 897 P.2d 234 (N.M. Ct. App. 1995). · cites it 6× “NMSA 1978, § 31-16-10 (Repl.Pamp.1984 & Cum.”
Herrera v. Sedillo, 740 P.2d 1190 (N.M. Ct. App. 1987). · cites it 7× “§ 31-16-10. Plaintiff argues that in fact defendant was retained under contract to the Public Defender and was representing plaintiff under the Public Defender Act, which contains no provision with respect to immunity.”
Mooney v. Frazier, 693 S.E.2d 333 (W. Va. 2010). “1995) (construing the immunity statute N.M. Stat. Ann. § 31-16-10 ); Osborne v. Goodlett, 2005 WL 1713868 (Tenn.”
Steinmetz v. Pub. Def., No. 31,746 (N.M. Ct. App. Apr. 24, 2012). · cites it 2× “See 2 1 NMSA 1978, § 31-16-10 (1968) (providing that “[n]o attorney assigned or contracted 2 with to perform services under the Indigent Defense Act [31-16-1 NMSA 1978] shall 3 be held liable in any civil action respecting his performance or nonperformance of 4 such services”).”
Wakeland v. Montano, No. 99-2175 (10th Cir. Jan. 28, 2000). “The district court held that he was immune from this state law claim under the New Mexico Indigent Defense Act, N.M. Stat. Ann. § 31-16-10 . Plaintiff challenges the constitutionality of the statute on equal protection grounds, arguing that it deprives her of a remedy against…”
Annotations are extracted automatically from the opinions in the Syfert caselaw corpus and ranked by authority, recency, and treatment. Dots show Syfertize treatment of the citing case itself.