A. Except as provided in Subsections B and C of this section, no one shall represent the state or any county thereof in any matter in which the state or county is interested except the attorney general, his legally appointed and qualified assistants or the district attorney or his legally appointed and qualified assistants and such associate counsel as may appear on order of the court, with the consent of the attorney general or district attorney.

B. Notwithstanding any other provision of law, a board of county commissioners may contract with private counsel for legal assistance to or representation of the county in any civil matter in which the county is interested. Such private counsel shall have the same powers of compromise, satisfaction or release in civil proceedings as are held by district attorneys pursuant to Section 36-1-22 NMSA 1978.

C. The private legal assistance permitted pursuant to Subsection B of this section shall not extend to the prosecution of any criminal action without the permission of the district attorney for that county, provided that such permission shall not be required for the prosecution of any violation of a county ordinance.

History: Laws 1909, ch. 22, § 15; Code 1915, § 1860; C.S. 1929, § 39-109; Laws 1933, ch. 21, § 7; 1941 Comp., § 17-112; 1953 Comp., § 17-1-12; Laws 1977, ch. 318, § 1; 1985, ch. 147, § 2.

Cross references. — For employment of special legal assistance by the attorney general, see 8-5-4 NMSA 1978.

Attorney general or district attorney must represent state or county. — The attorney general's office or the district attorney's office must represent the state, or a county, in any matter in which the latter is interested. State v. Davidson, 1929-NMSC-016, 33 N.M. 664, 275 P. 373 (decided prior to 1977 amendment).

Representation of municipality. — This statute does not apply to the representation of a municipality by a city attorney in a prosecution to enforce a municipal ordinance. City of Roswell v. Smith, 2006-NMCA-040, 139 N.M. 381, 133 P.3d 271, cert. denied, 2006-NMCERT-004, 139 N.M. 429, 134 P.3d 120.

But Subsection A only applicable in suits in court. — It is only in suits in court by the state or a county, and where special counsel seek to represent the state or a county, that Subsection A has any application. State v. Davidson, 1929-NMSC-016, 33 N.M. 664, 275 P. 373 (decided prior to 1933 amendment).

Improper representation of state denies jurisdiction of court. — Where there was no explicit approval by order of court authorizing a private counsel to prosecute for the district attorney, the metropolitan court lacked criminal jurisdiction to proceed in an assault and battery proceeding on the criminal docket. State v. Baca, 1984-NMCA-096, 101 N.M. 716, 688 P.2d 34.

Purpose of this section and 36-1-4 NMSA 1978 is to prevent an attorney engaged in the performance of public duties from being influenced or appearing to be influenced by personal or private interests. The potential for conflict between public and private interests exists whether the legal services rendered consist of court appearances or other legal services. 1977 Op. Att'y Gen. No. 77-07.

Officer may not prosecute case in district court after appeal. — A peace officer who has prosecuted a criminal case in magistrate or municipal court may not continue to prosecute the case in district court after an appeal of the magistrate or municipal court judgment has been filed in district court. 1989 Op. Att'y Gen. No. 89-27.

Responsibility for attorney's fees. — In a lawsuit between a county commission and other elected county officials concerning employment terms and conditions, each party is responsible for its own attorney's fees. The county is responsible for legal fees of its elected officials and employees only to the extent required by statute. 1990 Op. Att'y Gen. No. 90-05.

Law reviews. — For annual survey of New Mexico criminal law, see 16 N.M.L. Rev. 9 (1986).