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New Mexico Legal Ethics
March 01, 2006
Summary
The conduct of attorneys practicing law in New Mexico is governed primarily by the New Mexico Rules of Professional Conduct ("NMR"), which are set forth in Chapter 16 of the New Mexico Rules Annotated ("NMRA"), and which generally parallel the American Bar Association's Model Rules of Professional Conduct ("MR").
The New Mexico Supreme Court adopted the New Mexico Rules of Professional Conduct on January 1, 1987, by order issued on June 26, 1986. The New Mexico Rules of Professional Conduct replaced the New Mexico Code of Professional Responsibility, which was based on the American Bar Association's Model Code of Professional Responsibility.
Suggestions for improvements or corrections are welcome. Please send them to: Charles A. Armgardt at Modrall, Sperling, Roehl, Harris & Sisk, P.A., 500 Fourth Street N.W., P.O. Box 2168, Albuquerque, NM 87103-2168; phone: (505)848-1800; fax: (505)848-1891; e-mail: carmgardt@modrall.com; website: www.modrall.com
Copyright in this narrative is held by the law firm. Copyright in the full American Legal Ethics Library is held by Cornell University. Questions about redistribution of the library should be directed to: Legal Information Institute, Cornell Law School, Myron Taylor Hall, Ithaca, NY 14853, E-mail: lii@lii.law.cornell.edu
INTRODUCTION
0.1:100 Sources of Law and Guidance
0.1:101 Professional Codes
The conduct of attorneys practicing law in New Mexico is governed primarily by the New Mexico Rules of Professional Conduct ("NMR"), which are set forth in Chapter 16 of the New Mexico Rules Annotated ("NMRA"), and which generally parallel the American Bar Association's Model Rules of Professional Conduct ("MR").
The New Mexico Supreme Court adopted the New Mexico Rules of Professional Conduct on January 1, 1987, by order issued on June 26, 1986. The New Mexico Rules of Professional Conduct replaced the New Mexico Code of Professional Responsibility, which was based on the American Bar Association's Model Code of Professional Responsibility.
Other professional codes and rules adopted by the New Mexico Supreme Court and now in effect include Rules Governing Admission to the Bar, Rules Governing Discipline, Rules for Minimum Continuing Legal Education, Rules of Legal Specialization, Rules Governing Legal Assistant Services, the Code of Judicial Conduct, and Rules Governing Judicial Education.
0.1:102 "Other" Law and Moral Obligation
While many of a lawyer's professional responsibilities are prescribed in the New Mexico Rules of Professional Conduct, a lawyer is to act within a larger legal context that includes licensing rules and statutes, laws defining specific obligations of lawyers, substantive and procedural law in general, a lawyer's personal conscience, and the approbation of professional peers. See NMR "Preamble" and "Scope."
New Mexico has enacted a substantial set of statutes governing attorneys, their conduct, and the practice of law. See § 36-2-1 to -40 NMSA 1978 (1991 Repl. Pamp. & 2001 Cum. Supp.). These statutes pertain to, among other things, defining and regulating the practice of law, duties and the authority of attorneys, breaches of confidences, deserting clients, grounds for disbarment and suspension, unauthorized practice of law, solicitation, and fee splitting.
The state courts of New Mexico and certain federal courts have interpreted and applied the New Mexico Rules of Professional Conduct in numerous decisions. The New Mexico Attorney General has issued Opinions concerning lawyer ethics issues. Discussions of legal ethics appear in New Mexico Bar Association Ethics Advisory Committee Opinions. Professionalism standards are stated in A Creed of Professionalism of the New Mexico Bench and Bar. Each lawyer admitted to the Bar of the State of New Mexico takes an oath that includes standards of conduct.
NMR 16-804 includes in the definition of "professional misconduct" any actual or attempted violation of the Rules of Professional Conduct, any conduct "prejudicial to the administration of justice," and any conduct "that adversely reflects" on the lawyer's "fitness to practice law." However, the prohibition against the "appearance of impropriety" that was contained in New Mexico's version of the Model Code of Professional Responsibility, has not been found to have survived adoption of the New Mexico Rules of Professional Responsibility.
According to the Preamble to the Rules, a lawyer should strive to attain the highest level of skill possible, to improve the law and the legal profession, and to exemplify the legal profession's ideals of public service. The Preamble, Scope, and Terminology sections of the New Mexico Rules of Professional Conduct--which discuss "other" law and moral obligations--track similar introductory sections found in the ABA's Model Rules.
Compliance with the Rules, as with all law in an open society, depends primarily upon understanding and voluntary compliance, secondarily upon reinforcement by peer and public opinion, and finally, when necessary, upon enforcement through disciplinary proceedings. The rules do not exhaust the moral and ethical considerations that should inform a lawyer, for no worthwhile human activity can be completely defined by legal rules. The Rules simply provide a framework for the ethical practice of law.
0.1:103 Background of the New Mexico Rules of Professional Conduct
Following the adoption of the Model Rules of Professional Conduct by the House of Delegates of the American Bar Association on August 2, 1983, the Supreme Court of New Mexico, by order issued June 26, 1986, adopted the New Mexico Rules of Professional Conduct effective January 1, 1987. As adopted, the New Mexico Rules of Professional Conduct contain certain differences from the Model Rules approved by the American Bar Association. For example, some of the New Mexico Rules contain provisions not included in the ABA Model Rules, while some rules that were included by the ABA in the Model Rules were not adopted by the New Mexico Supreme Court.
0.1:104 Unusual Aspects of the New Mexico Ethics Rules
Frequently the New Mexico Rules of Professional Conduct and/or the accompanying Comment differ substantially from the Model Rules of Professional Conduct, as originally promulgated by the House of Delegates of the American Bar Association on August 2, 1983, and as amended subsequently. Some of the more prominent examples follow.
Unlike in MR1.2(c), an attorney's limitation on the scope of the representation under NMR 16-102(C) must be "reasonable."
NMR 16-102(D) forbids a lawyer from advising or assisting a client to engage in conduct which misleads the court. MR 1.2(d) does not include this prohibition.
NMR 16-106 permits a lawyer to reveal information relating to representation of a client in order to prevent the client from committing a criminal act that the lawyer believes is likely to result in substantial injury to the financial interest or property of another. MR 1.6 does not include this provision.
While MR 1.7 forbids a lawyer from representing a client if the representation "will be directly adverse" to another client unless both clients consent, NMR 16-107(A) prohibits representation of a client if the representation "will be directly or substantially adverse" to another client unless both clients consent. In addition, where MR 1.7 merely says any consent must follow "consultation," NMR 16-107(A)(2) states that "the consultation shall include explanation of the implications of the common representation and the advantages and risks involved."
NMR 16-108(E)(1) states that a lawyer may advance court costs and expenses of litigation, provided the client remains ultimately liable for such costs and expenses. MR 1.7(e)(1) differs by saying that a lawyer may advance court costs and expenses of litigation, the repayment of which may be contingent on the outcome of the matter.
According to NMR 16-111, only with consent "in writing" may a lawyer represent a private client in a matter in which the lawyer participated for a governmental agency; the writing requirement is absent from MR 1.11. Also, unlike in the Model Rule, in part (F) the New Mexico rule defines "Screened," and in part (G) it specifies rules for advocacy before a governmental body which the lawyer represents.
NMR 16-112 is stricter than MR 1.12 in regulating a lawyer's representation of a client in a matter in which the lawyer formerly was a judge, arbitrator or other adjudicative officer. Under the Model Rule, the lawyer's representation is forbidden if he was involved "personally and substantially" as an adjudicative officer, while the New Mexico Rule forbids the representation merely if he was involved "personally" as an adjudicative officer.
NMR 16-114 differs from MR 1.14 by providing a lawyer may not only appoint a guardian or take other protective action with respect to a client if he reasonably believes that the client cannot adequately act in the client's own interest, he may also appoint a "conservator."
MR 1.15 governs safekeeping of property. The New Mexico version NMR 16-115 adds three sections not found in the Model Rule: (D) regarding pooled interest-bearing trust accounts, (E) regarding separate interest-bearing trust accounts, and (F) regarding determination of nominal amount.
NMR 16-116, which governs declining or terminating representation, says a lawyer may retain papers relating to the client "to the extent permitted by law, or the Rules of Professional Conduct," while MR 1.16 says papers relating to the client may be retained "to the extent permitted by other law."
New Mexico did not previously have a rule regarding sale of a law practice. However, by Order dated February 6, 2002 and numbered 02-8300, the New Mexico Supreme Court adopted MR 1.17 as NMR 16-117.
The lawyer as intermediary rule in New Mexico, which is NMR 16-202, says a lawyer may act as intermediary "if approved by each client in writing." MR 2.2 does not contain the writing requirement.
NMR 16-304 varies from MR 3.4 by adding that in trial, a lawyer shall not state a personal opinion "not supported by the evidence."
NMR 16-305(A) slightly expands on the ban in MR 3.5 against a lawyer seeking to influence a judge, juror, prospective juror or other official, while NMR 16-305(C) is somewhat more lenient than MR 3.5, because it prohibits a lawyer from engaging in conduct intended to disrupt a tribunal, "and which in fact disrupts" a tribunal.
Following the 1991 amendments, NMR 16-306 differs greatly from MR 3.6, which covers trial publicity. The New Mexico Rule pertains only to criminal proceedings, whereas the Model Rule applies to all matters. The New Mexico Rule prohibits lawyers from making extrajudicial or out-of-court statements that a reasonable person would know to be false, or that create a clear and present danger of prejudicing the proceeding. MR 3.6 makes no such provision for a knowingly false statement. The New Mexico Rule does not give guidance as to what is considered to be a statement that would prejudice the proceeding, whereas the Model Rule gives six examples. Likewise, the New Mexico Rule does not provide guidance on what sorts of statements would not be considered to prejudice the proceeding, whereas the Model Rule lists ten examples.
NMR 16-307 omits MR 3.7(a)(3), which provides that a lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness except where "(3) disqualification of the lawyer would work substantial hardship on the client."
MR 3.8 sets forth special responsibilities of a prosecutor, and in part (b) requires the prosecutor to facilitate retention of counsel by the accused. NMR 16-308 requires the prosecutor to facilitate retention of counsel by the accused "prior to appearing in a court proceeding where a defendant appears without counsel." Also, part (d) of MR 3.8 governs disclosure of mitigating information. The New Mexico version, NMR 16-308, only requires disclosure of "reasonably relevant" mitigating information.
With regard to communications with persons represented by counsel, NMR 16-402 adds a sentence not found in MR 4.2, namely, "except for persons having a managerial responsibility on behalf of the organization, an attorney is not prohibited from communicating directly with employees of a corporation, partnership, or other entity about the subject matter of the representation even though the corporation, partnership or entity itself is represented by counsel."
NMR 16-501, governing responsibilities of a partner or supervisory lawyer, is broader than MR 5.1. Part (a) of MR 5.1 applies only to "a partner in a law firm," while the New Mexico version applies to any lawyer "having direct supervisory authority over another." Also, while under the Model Rule the lawyer must merely ensure that the firm has in effect measures designed to require compliance with the rules by subordinate lawyers, in New Mexico the supervisory attorney "shall make reasonable efforts to ensure that the other lawyer conforms" to the Rules.
NMR 16-505 differs from MR 5.5 with regard to the unauthorized practice of law. The New Mexico Rule adds that a lawyer shall not employ or continue the employment of a disbarred or suspended lawyer as attorney, law clerk, paralegal or any other position of a quasi-legal nature if the suspended or disbarred lawyer has been specifically prohibited from accepting or continuing such employment by order of the Supreme Court or the disciplinary board.
New Mexico has not adopted MR 5.7, which addresses applicability of the ethics rules to ancillary business activities.
Article 6 of the New Mexico Rules of Professional Conduct pertains to public service. NMR 16-601 sets forth detailed guidelines regarding pro bono public service that are not present in MR 6.1, as originally adopted.
Article 7 of the New Mexico Rules of Professional Conduct, governing "information about legal services," represents a substantial revision of and expansion upon MR 7.1 to 7.5.
The New Mexico version of the rule governing reporting of professional misconduct, NMR 16-803, expands on MR 8.3 because it requires a lawyer to inform the appropriate authority when a judge has engaged in any improper conduct, whereas the Model Rules requires reporting only when the misconduct constitutes a violation of the applicable rules of judicial conduct. Further, NMR 16-803 adds two sections not found in MR 8.3: (C) regarding the cooperation and assistance of lawyers in investigatory and disciplinary proceedings, and (D) regarding an alcohol and substance abuse exception.
With regard to misconduct, NMR 16-804 adds several sections which are not included in MR 8.4. For example, NMR 16-804(E) adds that it is professional misconduct for a lawyer to willfully violate the Supreme Court Rules on Minimum Continuing Legal Education or the New Mexico Plan of Specialization, or the board regulations promulgated under the authority or the rules or the plan. Further, NMR 16-804(H) adds that it is professional misconduct for a lawyer to engage in any conduct that adversely reflects on his fitness to practice law.
0.2:200 Forms of Lawyer Regulation in New Mexico
0.2:210 Judicial Regulation
Under Article III of the New Mexico Constitution, the New Mexico Supreme Court has the exclusive authority to regulate the practice of law. See also, e.g., § 36-2-1 NMSA 1978 (1991 Repl. Pamp.) ("supreme court of the state of New Mexico shall ... define and regulate the practice of law within the state..."); U.S. v. Martínez, 101 N.M. 423, 684 P.2d 509 (1984) (Supreme Court has exclusive right to regulate practice of law); Matter of Adams, 102 N.M. 731, 700 P.2d 194 (1985) (Supreme Court has ultimate responsibility to grant or deny right to practice law in state); and State Bar v. Guardian Abstract & Title Co., Inc., 91 N.M. 434, 575 P.2d 943 (1978), appeal after remand, 92 N.M. 327, 587 P.2d 1338 (authority of Supreme Court to define and regulate the practice of law is inherently contained in the grant of judicial power to courts by the Constitution).
According to New Mexico Attorney General Opinion ("AG Opinion") 1987-61, the Supreme Court possesses exclusive authority to regulate the conduct of lawyers, whether the conduct occurs before courts of law or before governmental bodies. Therefore, it was determined that the State Racing Commission lacks authority to prohibit an attorney from representing a client in Commission hearings on the basis of alleged attorney misconduct.
The New Mexico Supreme Court has the jurisdiction to enjoin the unauthorized practice of law by individuals who are not members of the bar. It also has the duty to ensure that attorneys licensed to practice law are qualified to do so, both in terms of good morals and satisfactory education. Matter of Stafford, 106 N.M. 298, 742 P.2d 510 (1987).
The prime purpose of licensing attorneys and in making them the exclusive practitioners in their field is to protect the public from evils occasioned by unqualified persons performing legal services; close regulation of those who practice law is to protect the unwary and uninformed from injury at the hands of persons unskilled or unlearned in the law. State Bar v. Guardian Abstract & Title Co., Inc., 91 N.M. 434, 575 P.2d 943 (1978).
The New Mexico Supreme Court has created the Disciplinary Board for the purpose of handling disciplinary matters. NMRA 17-102. As an agent of the New Mexico Supreme Court, the Disciplinary Board has the power and duty to investigate the conduct of any attorney within the jurisdiction of the New Mexico Supreme Court. It may initiate an investigation on its own motion or may undertake the same upon a motion by any person. Id.
Similarly, the Board of Bar Commissioners and the Committee on the Unauthorized Practice of Law are empowered to maintain and prosecute suits to prevent the unauthorized practice of law. State Bar v. Guardian Abstract & Title Co., Inc., 91 N.M. 434, 575 P.2d 943 (1978). The Disciplinary Board has the duty to consider recommendations made by these committees and to formally reprimand attorneys in accordance with the New Mexico Rules. NMRA 17-102.
In the context of attorney discipline, any lawyer admitted to practice in New Mexico is subject to the disciplinary jurisdiction of the New Mexico Supreme Court and the Disciplinary Board. Non-members engaged in the practice of law in New Mexico, lawyers or non-lawyers specially admitted to practice for a particular proceeding, other lawyers who practice law within New Mexico as in house counsel to corporations or other entities, and those lawyers who serve as counsel to governmental agencies or otherwise, are also subject to the exclusive disciplinary jurisdiction of the New Mexico Supreme Court and its Disciplinary Board. NMRA 17-201.
It is the obligation of the organized bar and the individual lawyer to give unstinted cooperation and assistance to the Supreme Court, and its agency, the Disciplinary Board, in discharging its function and duty with respect to discipline and in purging the profession of the unworthy. NMRA 17, Preface.
The disciplinary rules do not usurp or limit the powers of courts to control proceedings before them. For a discussion of the authority for, and the nature of, sanctions that may be imposed upon attorneys in connection with judicial proceedings, see section 0.2:250, infra. See also Matter of Jade G., 130 N.M. 687, 30 P.3d 376 (Ct. App. 2001) (under its inherent authority, a court may sanction parties and attorneys to ensure compliance with the proceedings of the court).
0.2:220 Bar Organizations
The New Mexico Board of Bar Commissioners is established by NMRA 24-101. It was created by the New Mexico Supreme Court to establish and organize the State Bar of New Mexico. Id.
The State Bar of New Mexico is located at 5121 Masthead NE, Albuquerque, NM 87109; phone 505-797-6000; fax 505-828-3765; e-mail sbnm@nmbar.org; website www.nmbar.org
The New Mexico State Bar is a mandatory Bar, as all persons licensed to practice law in New Mexico must be members of it. NMRA 24-101. It was established to aid the courts in improving the administration of justice, to promote and support the needs of all members, to be cognizant of the needs of individual and minority members of the profession, including the full and equal participation of minorities and women in the state bar and the profession at large, to improve the relations between the legal profession and the public, to encourage and assist in the delivery of legal services to all in need of such services, to foster and maintain high ideals of integrity, learning, competence and public service, to provide a forum for the discussion of subjects pertaining to the practice of law and law reform, to promote and provide continuing legal education in technical fields of substantive law and practice, and to participate in the legislative, executive and judicial process by informing its membership about issues affecting the legal system. Id.
There are three sub-divisions of membership in the State Bar of New Mexico: the young lawyers division, the senior lawyers division, and the legal assistants division. NMRA 24-101. Members of the young lawyers division are all members of the State Bar of New Mexico who are under the age of thirty six (36) years, and those members who have been admitted to the practice of law in any state less than three years. NMRA 24-101(1). Members of the senior layers division are bar members in good standing who are fifty five (55) years of age or older, and who have practiced law for twenty five (25) years or more. NMRA 24-101(2). Members of the legal assistants division have graduated from an accredited program for legal studies, are ABA certified and have a minimum of three years experience as a legal assistant working under the supervision of a licensed New Mexico attorney. NMRA 24-101(3).
Each year, every member of the state bar shall pay a license fee which shall be determined and fixed by the Board of Bar Commissioners. NMRA 24-201. Any person failing to pay the license fee shall be assessed a penalty fee. Id. Upon failure to pay the penalty fee, a member of the bar has fifteen (15) days to show cause why such member should not be suspended from the right to practice in the courts of the state. Id.
The Board of Bar Commissioners is the governing board of the state bar. NMRA 24-101(B). The Board has twenty-one (21) members, consisting of nineteen (19) district bar commissioners, the elected chair of the young lawyers division, and the elected chair of the senior lawyers division. Id. Each district bar commissioner is elected to a three (3) year term and holds office until his successor is elected and qualified. NMRA 24-101(E). There are seven (7) bar commissioner districts from which the Board of Commissioners is composed. NMRA 24-101(C).
The first bar commissioner district consists of Bernalillo County and is represented by eight (8) bar commissioners. NMRA 24-101(C)(1). The second district is made up of San Juan, McKinley, Cibola, and Valencia counties and is represented by one (1) bar commissioner. NMRA 24-101(C)(2). The third district consists of Rio Arriba, Sandoval, Los Alamos and Santa Fe counties and is represented by three (3) bar commissioners. NMRA 24-101(C)(3). The fourth district is made up of Taos, Colfax, Union, Mora, Harding, San Miguel, and Guadalupe counties and is represented by one (1) bar commissioner. NMRA 24-101(C)(4). The fifth district is made up of Quay, Curry, Roosevelt, and De Baca counties and is represented by one (1) bar commissioner. NMRA 24-101(C)(5). The sixth district consists of Lea, Eddy, Chaves, Lincoln, and Otero counties and has three (3) bar commissioners. NMRA 24-101(C)(6). The seventh district consists of Catron, Socorro, Torrance, Sierra, Hidalgo, Luna, Grant and Doña Ana counties and is represented by two (2) bar commissioner. NMRA 24-101(C)(7). Nominations to the office of district bar commissioner shall be by written petition of any ten (10) or more active status members of the bar in good standing. NMRA 24-101(G). No state or federal judge is eligible to serve as a member of the Board while in office. Id.
Vacancies on the Board of Bar Commissioners are filled by appointment from the board, and district bar commissioners so appointed serve on the board until the next election, which is the 30th of November of each year. NMRA 24-101(F), NMRA 24-101(H). Each year, the Board of Commissioners elects a president, a vice president, a president-elect, and a secretary-treasurer. NMRA 24-101(I). All of the candidates must be members of the Board of Bar Commissioners, and shall be officers of the state bar and of its Board of Bar Commissioners. Id.
A commissioner's term of office may be extended by up to three (3) years if that commissioner's term of office expires while that commissioner is serving in the position of president-elect, president, or immediate past president. NMRA 24-101(J). During the extended term, there shall be elected from the district from which the commissioner resides, one less member to the Board of Commissioners than said district would have otherwise been entitled to. Id. At the regular election of commissioners, one (1) year after the year when the said president's term of office expires, an election shall be held in the district to elect a member from that district to the board who shall serve for the remainder of the term. Id.
An integrated state bar comes into being by the Supreme Court's action in admitting attorneys to practice; no separate statutory authorization is needed to create it. State Bar v. Guardian Abstract & Title Co., Inc., 91 N.M. 434, 575 P.2d 943 (1978) (also stating that as used in statute recognizing existence of a state bar, "state bar" is a generic term referring to that group of attorneys who have been admitted to practice before courts of state).
The New Mexico Board of Bar Commissioners largely survived a suit brought by New Mexico attorneys challenging the Bar's use of compulsory dues to fund specified activities, and the adequacy of the Bar's disclosure of budget items, in Popejoy v. New Mexico Board of Bar Com'rs, 831 F. Supp. 814 (D.N.M. 1993), enforcement denied 1994 WL 823551, amended on reconsideration in part, 887 F. Supp. 1422 (D.N.M. 1995). It was held that the State Bar may exact dues to support only those duties and functions of the bar which serve important and compelling governmental interests, and which are related to or germane to the Bar's purposes. Thus, the Bar Association may use mandatory dues to fund lobbying activities, including seeking support for funds for new appellate judges, for salary increases of judicial staff, for changes to compensation packages for state-employed lawyers and their staffs, for judicial information systems, and for court appointed representation in child abuse and neglect cases, because these activities are related or germane to the Bar Association's purposes. Therefore, the use of mandatory dues to support such lobbying activities did not violate attorney members' First Amendment rights.
Similarly, the Bar Association's acquisition of excess office space was not "political or ideological activity;" therefore, the use of mandatory dues to acquire excess office space was not inconsistent with attorney members' First Amendment rights. Also, the First Amendment does not preclude the state Bar Association from spending compulsory dues on pro bono activities in pursuing the goal of improving the delivery of legal services; providing specialized information to practicing attorneys is also permissible. However, the integrated Bar Association may target specific groups for pro bono legal services only if selection of such groups is based on ideologically neutral criteria. Id. (also providing that New Mexico State Bar was required to institute a time-keeping system for Bar employees to keep contemporaneous time records of their activities so that Bar members would have sufficient information to decide whether to object to any activity as non-chargeable).
0.2:230 Disciplinary Agency
The Supreme Court of New Mexico has ultimate and plenary authority with respect to the disciplining of lawyer and others who are subject to its discipline jurisdiction. The discipline process, however, involves a number of other persons and entities whose functions are prescribed in the New Mexico Rules Annotated. See NMRA 17-101 to NMRA 17-106.
The New Mexico Supreme Court has created a Disciplinary Board to review complaints, and to reprimand members of the bar for behavior that violates the Rules of Professional Conduct. The Disciplinary Board, in turn, has established hearing committees and hearing officers which make recommendations to the Disciplinary Board. The Disciplinary Board has also established reviewing officers; they are members of the Hearing Committee with the authority and duty to review, approve, modify, or disapprove dismissals of complaints docketed for formal investigation, and to offer informal admonitions proposed by Disciplinary Counsel. The Disciplinary Counsel and Deputy Disciplinary Counsel are appointed by the Disciplinary Board and serve at the pleasure of the Board and under its supervision.
Disciplinary Board
To carry out its plenary discipline powers, the Supreme Court of New Mexico has established a Disciplinary Board. According to NMRA 17-102, the Disciplinary Board has the power and duty to consider and investigate the conduct of any attorney within the jurisdiction of the Supreme Court, and may initiate an investigation on its own motion or may undertake the same upon complaint by any person. The Board also has the power and duty to review the findings of fact, conclusions and recommendations of Hearing Committees, and to take action thereupon. Furthermore, the Board can formally reprimand attorneys, and report any such reprimand to the Supreme Court, where it will be a matter of record. The Board conducts an annual meeting, sponsored by the Supreme Court, and attended by the Board, members of the Supreme Court, the Hearing Committee, and the Disciplinary Counsel. The purpose of this meeting is to review rules, discuss problems, establish performance criteria and discuss any other matters the board or court deems necessary.
The Disciplinary Board consists of twelve (12) members. NMRA 17-101. Of these twelve (12) members, ten (10) are members of the New Mexico bar, one of whom is appointed by the president of the bar, and two (2) are non-lawyer public members. A non-lawyer public member is a person who has never practiced law and has not graduated from law school. Also, the non-lawyer public member may not be directly employed by a lawyer, or have any direct financial investment in the practice of law.
The state is divided into disciplinary districts as follows: Central, Northern, Southern. NMRA 17-102. The Central district is composed of Bernalillo, Sandoval, Cibola, Valencia, and Socorro counties. The Northern District consists of San Juan, McKinley, Rio Arriba, Santa Fe, Los Alamos, Taos, Colfax, San Miguel, Harding, Union, Guadalupe, Torrence, Quay, and Mora counties. The Southern District is made up of De Baca, Curry, Roosevelt, Cháves, Eddy, Lea, Lincoln, Otero, Doña Ana, Catron, Grant, Luna, Hidalgo, and Sierra Counties. Each disciplinary district shall have at least one attorney member on the Board. The term of office for each member on the disciplinary board is three (3) years, but no member can serve more than six (6) consecutive years.
The Supreme Court designates one member of the Board to serve as chair, and one as vice-chair. The chair of the Board from time to time designates a secretary who keeps permanent records of all plenary proceedings of the Board. The chair of the Board, or the vice-chair in the chair's absence, oversees the operations of the Disciplinary Counsel's office, the several Hearing Committees and the review panels of the Board. The chair is responsible for the maintenance of a docket or other control of all formal charges instituted, the expedition of the proceedings and the assembly and preservation of the record of all proceedings. The chair also transmits or arranges for the transmission of all Board recommendations in disciplinary matters to the Supreme Court. The chair reports to the Supreme Court any formal reprimands administered by order of the Board. Also, the chair exercises the Board's authority on its behalf in certain ministerial duties involving Hearing Committees and Disciplinary Counsel pursuant to any policies or procedures as adopted by the Supreme Court or the Board.
All proceedings before the Disciplinary Board shall be brought in the disciplinary district in which the respondent-attorney's principal office is located, or if the respondent-attorney does not maintain a principal office in New Mexico, in the district in which any part of the conduct under investigation occurred.
While it is not within the jurisdiction of the Disciplinary Board or the office of Disciplinary Counsel to regulate fees charged by attorneys, it is within their jurisdiction to enforce the Rules of Professional Conduct. Matter of O'Brien, 130 N.M. 643, 29 P.3d 1044 (2001).
Hearing Officers and Committees
The Disciplinary Board provides for the organization of two or more Hearing Committees or the appointment of two or more Hearing Officers within each disciplinary district. Each committee consists of three (3) members. Hearing Officers are members of the New Mexico State Bar. Members of the Hearing Committees may be members of the New Mexico State Bar, or "non-lawyer public members." Hearing Committees act only with a concurrence of a majority of their members. Two (2) members of each committee must be members of the New Mexico State Bar, and two (2) members of a committee constitute a quorum.
Hearing Officers and Committees have the power and the duty to conduct hearings into formal charges of misconduct, upon assignment by the chair of the Disciplinary Board. They may also conduct hearings on motions for reinstatement and remission of deferred sanctions; and they may report to the Disciplinary Board their findings of fact, conclusions of law and recommendations, together with records of their proceedings.
Hearing Officers are not allowed to take part in any proceeding in which a judge or similar officer would be required to abstain. A Hearing Officer may not personally represent a lawyer in any investigation or proceeding pursuant to the disciplinary rules while actively serving on the Hearing Committee in a pending proceeding. Active service in a pending proceeding begins on the date the hearing officer receives notice of assignment to a committee and concludes on the date the committee submits its notice of findings.
Reviewing Officers
Any member of a Hearing Committee may serve as a Reviewing Officer. A Reviewing Officer, upon the request of the Disciplinary Counsel or chair of the Board, shall have the authority and duty to review, approve, modify or disapprove dismissals of complaints docketed for formal investigation and offers of informal admonitions proposed by Disciplinary Counsel. Any member of a Hearing Committee who participates as a Reviewing Officer during the investigation of an attorney shall not serve as a member of a Hearing Committee for any charges filed as a result of such investigation. The identity of the Reviewing Officer involved in a particular investigation remains confidential at all times, including after the filing of formal disciplinary charges. Upon request, the Reviewing Officer's report (without identifying information) is available to the attorney being investigated.
Disciplinary Counsel
NMRA 17-105 governs the appointment, powers, and duties of the Disciplinary Counsel. The Disciplinary Board appoints a Disciplinary Counsel, subject to the approval of the Supreme Court. The Counsel serves at the pleasure of the Board and under its supervision. Subject to the approval of the Supreme Court, the Board fixes the compensation of the Counsel, if any, and promulgates policies for the orderly and efficient conduct of his duties.
The Disciplinary Counsel has these powers: (1) to docket for formal investigation any complaint which sets forth reasonable grounds to believe that a violation of the Rules of Professional Conduct has occurred; (2) to investigate, or to refer for investigation to assistant disciplinary counsel or to an investigator, all matters involving alleged misconduct by an attorney subject to the jurisdiction of the Supreme Court, and (3) to dispose of all matters involving alleged misconduct by an attorney by: (a) dismissal of the complaint, (b) a letter of caution, (c) informal admonition, or (d) the filing of formal charges with the Disciplinary Board. The Disciplinary Counsel also has the power to prosecute all disciplinary proceedings before Hearing Committees, the Disciplinary Board, and the Supreme Court, and to seek to resolve informally allegations which on their face would not, even if true, involve violations of the Rules of Professional Conduct but which are of concern to the complainant and could easily be corrected by the attorney.
The Disciplinary Counsel has these duties: (1) to receive or initiate in the first instance all complaints, and to maintain docket control, files and records upon any matter upon which investigation is initiated; (2) to appear at hearings conducted upon motions for reinstatement by suspended or disbarred attorneys; to cross-examine witnesses testifying in support of the motions and to present any evidence in opposition to reinstatement; (3) to maintain permanent records of all matters processed and the disposition thereof, and to act as the general administrative officer for the Disciplinary Board under its direction and supervision; (4) to file quarterly status reports with the Disciplinary Board indicating the receipt, processing, and status of all complaints; and (5) to keep all complaints and other disciplinary matters confidential.
The Disciplinary Board may appoint one or more experienced investigators to assist Disciplinary Counsel in the performance of their duties. Full time salaried Disciplinary Counsel or assistant disciplinary counsel may not engage in the private practice of law. With permission from the Disciplinary Board, however, full-time salaried counsel may speak, write, lecture, teach, and participate in other activities concerning the law, the legal system, and the administration of justice.
0.2:240 Disciplinary Process
Discipline Jurisdiction of the New Mexico Supreme Court
NMRA 17-201 establishes that the New Mexico Supreme Court and the Disciplinary Board have exclusive disciplinary jurisdiction over any attorney admitted to practice law in New Mexico, any attorney specially admitted to practice by a court in New Mexico, or any individual admitted to practice as an attorney in any other jurisdiction who engages in the practice of law within this state as house counsel to corporations or other entities, or as counsel for governmental agencies. See also, e.g., § 36-2-1 NMSA 1978 (1991 Repl. Pamp.) ("supreme court of the state of New Mexico shall ... define and regulate the practice of law within the state...")
Grounds for Discipline
According to § 36-2-18 NMSA 1978 (1991 Repl. Pamp.), an attorney may be disbarred or suspended by the Supreme Court for any of the following causes arising after his admission to practice: conviction of a felony or misdemeanor involving moral turpitude, wilful disobedience or violation of a court order, appearing as attorney "corruptly ... or without authority," lending his name to be used as an attorney by a non-lawyer, failing or refusing to account for money of his client he acquires as attorney, and "any other act to which such a consequence is by law attached."
NMRA 17-205 states that an act or omission by an attorney, individually or in concert with any other person, which violates the Rules of Professional Conduct or violates the provisions of a court rule, statute, or other law shall be grounds for discipline, whether or not the act or omission occurred in the course of the attorney-client relationship.
According to NMRA 17-206, a violation of the Rules of Professional Conduct is grounds for: (1) disbarment by the Supreme Court; (2) suspension by the Supreme Court for a certain time with automatic reinstatement; (3) indefinite suspension by the Supreme Court with reinstatement upon application; (4) public censure by the Supreme Court; (5) formal reprimand by the Supreme Court; (6) informal admonition by Disciplinary Counsel without formal hearing; and/or (7) requirement by the Disciplinary Board that an attorney successfully pass the multi-state professional responsibility examination the next time it is given.
If the record suggests that the individual can still perform legal services without supervision, the Supreme Court may impose probation. By imposing probation, the court allows the lawyer to continue to practice law while requiring him to meet certain conditions that will insure the protection of the public and assist him in understanding and meeting his ethical obligations. These conditions are not mere guidelines, but are orders of the court which are to be obeyed. Matter of Rawson, 104 N.M. 387, 722 P.2d 638 (1986). Failure by an attorney on probation to comply with any such terms or conditions is subject to enforcement under the contempt powers of the Supreme Court. If the Supreme Court finds good cause to enter an order to show cause why the attorney should not be held in contemp, it may direct the attorney to appear before the court to show cause why additional discipline should not be imposed, or if factual allegations are in dispute, may remand the matter the Disciplinary Board for an expedited evidentiary hearing. If held in contempt, the attorney may be censured, fined, suspended or disbarred.
NMRA 17-207 states that in addition to probation, an attorney may be summarily suspended, upon recommendation of the Disciplinary Board. Summary suspension is proper in the following situations: (1) upon the filing with the Supreme Court of a certified copy of a judgment finding an attorney guilty of a felony or other serious crime, (2) upon the Disciplinary Board demonstrating by certificate or otherwise that an attorney has been convicted of or has pleaded guilty or no contest to a felony or serious crime, (3) upon filing with the Supreme Court of an order or judgment declaring the attorney to be incompetent or incapacitated, or unable to defend himself, (4) upon the Disciplinary Board demonstrating by certificate or otherwise that an attorney is incapacitated from continuing to practice law or to defend himself, or (5) upon the filing in the Supreme Court and service upon an attorney by Chief Disciplinary Counsel of a petition which sets forth facts demonstrating that the continued practice of law by an attorney will result in a substantial probability of harm, loss or damage to the public, and that (a) the attorney is under investigation by Disciplinary Counsel for an alleged violation or the Rules of Professional Conduct or a violation of a court rule, statute or other law, (b) formal disciplinary charges have been filed against the attorney, or (c) a criminal complaint, information or indictment has been filed against the attorney.
An attorney summarily suspended may be reinstated immediately upon a showing that if the suspension was for conviction of a crime, the underlying conviction for the felony or other serious crime has been reversed and no further proceedings have been ordered by the reviewing court. Also, the attorney may be immediately reinstated if the suspension was imposed because of incompetency or incapacity, and the Disciplinary Board certifies that the incapacity or incompetency no longer exists. An attorney may also be immediately reinstated if the suspension was imposed on a showing that the continued practice of law by the attorney would result in a substantial probability of harm, loss or other damage to the public, and the Disciplinary Board certifies that said probability no longer exists. Reinstatement after summary suspension does not terminate any formal disciplinary proceeding then pending against the attorney, the disposition of which is to be determined by the Hearing Committee and the Disciplinary Board.
NMRA 17-211 provides for discipline by consent when an attorney against whom formal charges have been made tenders to Disciplinary Counsel an agreement admitting sufficient facts exist to permit a finding that the allegations are true, or declaring his intention not to contest the allegations. The Disciplinary Board may accept or reject the agreement. However, the Board may not accept an agreement without first determining from the attorney that he understands the charges against him, he understands the proposed disposition of the proceedings, he understands that if the agreement is accepted he is waiving the right to hearing before a Hearing Committee and the Board and is waiving an appeal to the Supreme Court, and the admission or provisions of the consent decree are voluntary and not the result of force, threats, or promises.
An attorney who has been disciplined may be required to make restitution, and also to reimburse the client's security fund of the State Bar of New Mexico for any expenditure that is made arising out of the attorney's misconduct. Any order of restitution does not preclude damages being awarded by a court of competent jurisdiction. All forms of discipline, including disbarments, indefinite suspensions, and public censures are to be published in the New Mexico Reports and the Bar Bulletin, and are to be filed in the Supreme Court clerk's office. Formal reprimands by the Board are also to be published in the Bar Bulletin and to be filed in the Supreme Court clerk's office.
A disbarred attorney may file a motion for reinstatement to the Supreme Court. The motion may not be filed before three (3) years from the effective date of disbarment. An attorney who has been suspended for a specific period of time shall be automatically reinstated at the expiration of the period specified in the order of suspension.
An attorney who has been suspended for an indefinite period of time may, at any time after complying with the conditions of reinstatement, file with the clerk of the Supreme Court a petition for reinstatement attaching thereto a copy of the order of suspension and an affidavit of compliance, where appropriate, stating that the attorney has complied with previously-imposed conditions of reinstatement. An attorney who has been suspended indefinitely due to incapacity or incompetency may move for reinstatement upon clear and convincing evidence that the disability has been terminated and the attorney is once again fit to resume the practice of law; however, if such a motion is denied, another may not be made for a year, unless a different period is specified by the Supreme Court. The filing of an application for reinstatement on grounds of incompetency or incapacity, constitutes a waiver of any psychotherapist-patient privilege with respect to the treatment of the attorney during the period of the attorney's disability. In the application for reinstatement, the attorney must disclose the name and address of every treating psychiatrist, psychologist, physician, hospital or other institution. The attorney must also furnish to the Supreme Court written consent for each psychologist, psychiatrist, physician, hospital or other institution to divulge such information and records as requested by court-appointed medical experts.
Membership in the bar requires more than just the mere absence of intent to do wrong; otherwise, a high standard of conduct could not be maintained. See Matter of Nelson, 79 N.M. 779, 450 P.2d 188 (1969). However, there is a balance in that moral turpitude is not a necessary element to support discipline, nor is it synonymous with "conduct contrary to honesty, justice or good morals". See Matter of Morris,74 N.M. 679, 397 P.2d 475 (1964).
The court's primary concern in all cases involving attorney discipline is to assure that the public is protected from dishonest attorneys, whatever the explanation for the dishonesty. Matter of Stewart, 104 N.M. 337, 721 P.2d 405 (1986).
By way of example regarding grounds for discipline, an attorney's apparent failure to complete several cases, to take steps to ensure that the interests of her clients were protected upon her withdrawal from their cases, and to promptly refund any unearned portions of fees paid in advance, as well as her lack of cooperation with the disciplinary counsel, constituted conduct violative of the professional rules warranting an indefinite suspension from the practice of law. Matter of Roth, 105 N.M. 255, 731 P.2d 951 (1987).
Regarding mitigating factors in disciplinary actions, see, e.g., Matter of Martin, 127 N.M. 321, 980 P.2d 646 (1999) (neither mental nor physical infirmity provides a defense to charges of professional misconduct); Matter of Hyde, 124 N.M. 363, 950 P.2d 806 (1997) (pressures of practice of law provide neither an excuse nor a mitigating factor for deceit; dishonest conduct by lawyers will not be tolerated); Matter of Smith, 858 P.2d 857, 115 N.M. 769 (1993) (mental disability of attorney can be considered in mitigation of disciplinary action only if attorney's recovery from condition can be demonstrated by meaningful and sustained period of successful rehabilitation; attorney's chronic depression cannot be considered as mitigating factor in imposing appropriate discipline for pattern of neglecting client matters and failing to communicate with clients, where attorney admits that he still suffers from mental disability and that his counselor concludes that practicing law aggravates depression; mental disability, such as depression, can only mitigate discipline of attorney if it can be demonstrated that condition is no longer likely to result in harm to public); Matter of Tapia, 110 N.M. 693, 799 P.2d 129 (1990), reinstatement granted by 114 N.M. 37, 834 P.2d 414 (where there is some evidence that factors over which attorney had no control may have contributed to misconduct or that rehabilitation could be effected, court will hesitate to impose ultimate sanction of disbarment).
Disciplinary Process
According to NMR 16-803(C), "a lawyer shall give full cooperation and assistance to the highest court of the state and to the disciplinary board, hearing committees and disciplinary counsel in discharging their respective functions and duties with respect to discipline and disciplinary procedures." Also, attorneys in New Mexico are guided by A Creed of Professionalism of the New Mexico Bench and Bar, which provides "I will willingly participate in the disciplinary process."
For purposes of a disciplinary hearing, the Disciplinary Board is to hear only such evidence as would be admissible in the trial of a civil case, although it may receive and consider any evidence it believes to be cogent and credible in the exercise of sound judicial discretion. The Hearing Committee chair presides and makes rulings upon questions of the admissibility of evidence and the conduct of proceedings.
Except in cases involving theft or misappropriation, conviction of a crime, or a knowing act of concealment, the statute of limitations is four (4) years from the time the complainant knew or should have known the facts on which the complaint is filed.
Investigations and investigatory hearings conducted by or under the direction of Disciplinary Counsel are entirely confidential, unless they are matters of public record. NMRA 17-304. Information relating to disciplinary proceedings may be released by Disciplinary Counsel prior to filing formal charges, as follows: (1) where investigation reasonably causes Disciplinary Counsel to believe in good faith that a crime may have been committed by an attorney, then the name of the subject, the general nature of the possible crime, and the relevant facts are to be made available to an appropriate prosecuting authority; (2) if the respondent-attorney has filed with the office of Disciplinary Counsel a written waiver of confidentiality, or (3) upon written request from a special Client Security Fund Committee, such information as may assist the committee in determining the validity and worthiness of a specific claim.
NMRA 17-306 states that Disciplinary Counsel may serve interrogatories on the respondent-attorney. Contemporaneously, Disciplinary Counsel may also request or invite the respondent-attorney to appear before a Reviewing Officer and to answer questions related to the allegations under investigation by Disciplinary Counsel. The respondent-attorney has the rights to counsel, to make opening and closing statements, and to introduce documentary evidence. The chair of the Disciplinary Board may issue subpoenas for the production of records and other documents of the respondent-attorney, or any other witness necessary to the investigation, as well as to require the presence and testimony of any witnesses or the respondent-attorney oath. If it appears that the respondent-attorney or a witness may alter, destroy, secrete or remove from the jurisdiction of New Mexico any evidence relevant or material to an investigation, Disciplinary Counsel, if authorized by the Disciplinary Board, may petition the Supreme Court for an order to compel the attendance of witnesses before a Hearing Committee and the production before a Hearing Committee of relevant evidence.
The Chair of a Hearing Committee may issue subpoenas requiring the presence of a witness at a formal hearing, or commanding the person to whom it is directed to produce at a formal hearing before a Hearing Committee the books, papers, documents, or tangible things designated therein.
NMRA 17-307 provides for investigation of complaints. Investigations are initiated by the chief Disciplinary Counsel, deputy disciplinary counsel, or assistant counsel designated by the chair of the Disciplinary Board. Investigations are conducted by Disciplinary Counsel staff attorneys or are referred to an appropriate assistant counsel or commissioned investigator for report and recommendation.
Investigations, examinations, and verifications are conducted so as to preserve the private and confidential nature of the lawyer's records. An investigation may be dismissed if the complaint does not set forth allegations which, if true, state reasonable cause to believe that the respondent-attorney has violated the Rules of Professional Conduct. If the complaint is not dismissed, however, the Disciplinary Counsel is to prepare an investigation report that includes a summary statement of the facts, a statement of the opposing positions, and the investigator's recommendations for further handling of the situation. Next, the Disciplinary Counsel submits this report to the Chair of the Disciplinary Board, who either approves that it be filed as formal charges, or recommends an alternate course of action.
If an informal written admonition letter has been recommended by the Disciplinary Board, the respondent-attorney may either accept or reject it. If the respondent-attorney rejects it, the Disciplinary Counsel is to file a formal specification of the charges. In the charges, counsel is to indicate that they have been filed because an offer of informal admonition was declined.
If charges have been filed, the respondent-attorney may review and answer them. The answer must contain a brief statement reflecting admissions, denials, and any other relevant and material matters that the attorney wishes to convey, any mitigating factor in connection with any admitted violations, and the names and addresses of the witnesses that the respondent plans to call in his defense. Failure by the respondent-attorney to answer within twenty (20) days constitutes an admission.
NMRA 17-313 sets out procedures for disciplinary hearings. Upon a written showing of need, either party can apply to the Chair of the Hearing Committee for permission to conduct discovery proceedings prior to the formal hearing. Within thirty (30) days after the time for filing an answer, the Chair of the Hearing Committee is to set a time and date for formal hearing on the charges. The formal hearing will be set for not longer than one hundred twenty (120) days from the time for filing an answer. The date of the hearing may be extended on a showing of good cause.
The formal hearing is adversarial in nature. Witnesses are sworn in, and the Disciplinary Counsel presents evidence to support the allegations in the formal charges. The Committee Chair presides and makes rulings on questions of the admissibility of evidence and the conduct of the proceedings. The committee members may ask questions of witnesses, including the respondent-attorney. The complaining witness(es), the respondent-attorney and Disciplinary Counsel may be present throughout the entire hearing. Other witnesses may be excluded except when testifying. At the end of the hearing, each side may present proposed findings of fact and conclusions of law, after which the Hearing Committee will consider the case and submit its recommendation within thirty (30) days to the Disciplinary Board.
Upon receipt of the findings, conclusions and recommendations of the Hearing Committee, the Chair of the Disciplinary Board is to request oral argument by or submission of briefs from each side. The Board will not consider any evidence which was not presented at the hearing before the Committee. Within thirty (30) days following the submission of briefs or oral argument or the receipt of the Hearing Committee's findings and recommendations, the Disciplinary Board is to render its decision.
Once the Disciplinary Board renders its decision, each side had three (3) methods to seek review by the Supreme Court. If the decision recommends public censure by the Supreme Court, suspension, or disbarment, a respondent-attorney may request a hearing before the Supreme Court, which may or may not be granted. If the decision is to assess costs, to impose a formal public reprimand, or to impose probation, the respondent-attorney may petition the Supreme Court for a hearing within fifteen (15) days of service of the decision. If the decision is to dismiss the complaint, petition to the Supreme Court for a hearing may be made within fifteen (15) days, and the Court may or may not grant it.
Formal proceedings are conducted before the Hearing Committee or the Disciplinary Board and are open to the public. Complainants are advised as to the status of the investigation every six (6) months and shall be immediately advised of the final disposition of their complaints.
Numerous reported cases involve the lawyer's duty to cooperate with disciplinary process. For example, in Matter of Romero, 130 N.M. 190, 22 P.3d 215 (2001), it was held that a lawyer's failure to respond to inquiries from the office of Disciplinary Counsel may warrant discipline, regardless of whether there is a finding of misconduct with respect to the underlying matter that caused the office to make its inquiries. Thus, an attorney cannot avoid formal disciplinary proceedings by failing to respond in a substantive manner to inquiries from the office of disciplinary counsel. See also, e.g., Matter of C'De Baca, 109 N.M. 151, 782 P.2d 1348 (1989) (attorney failed to act responsibly when he knowingly made a false statement to the hearing committee when he stated that a former client's judgment against him in a civil suit for debt and money due, conspiracy and fraud, did not involve a finding of fraud); Matter of Carrasco, 106 N.M. 294, 742 P.2d 506 (1987) (when an attorney failed to file an answer or appear at the proceedings before a hearing committee, he did not request a hearing before the Disciplinary Board although advised of his right to do so, and he failed to appear before the Supreme Court, such conduct violated the attorney's duties); and Matter of Martínez, 104 N.M. 152, 717 P.2d 1121 (1986) (act of ignoring the inquiries of Disciplinary Counsel concerning allegations of misconduct is a violation of the rules).
Several cases address the issue of burden of proof in the disciplinary process. For instance, in Van Orman v. Nelson, 78 N.M. 11, 427 P.2d 896 (1967), rev'd on other grounds, 80 N.M. 119, 452 P.2d 188 (1969), it was held that with respect to transactions between attorney and client involving the acquisition of property from the client, a heavy burden is imposed upon the attorney to establish the absolute fairness of the transactions. More broadly, the court held in Matter of Quintana, 130 N.M. 627, 29 P.3d 527 (2001) that the disbarred or suspended attorney who seeks to be reinstated bears a heavy burden and must demonstrate not only by words but also by deeds that he or she can undertake the practice of law without endangering the public or the reputation of the profession. See also Matter of Romero, 130 N.M. 190, 22 P.3d 215 (2001) (suspended lawyer seeking reinstatement bears the burden to prove by clear and convincing evidence that she has satisfied all procedures and criteria stated in Rules Governing Discipline and has satisfied the conditions of the order of discipline entered by the Supreme Court).
In Matter of Rawson, 113 N.M. 758, 833 P.2d 235 (1992), it was recognized that a lawyer may not refuse to disclose client trust records to the Disciplinary Board on the basis of confidentiality of client information stated in NMR 16-106.
0.2:245 Mandatory Disbarment Upon Conviction of a Crime Involving Moral Turpitude
According to § 36-2-19 NMSA 1978 (1991 Repl. Pamp.), the Supreme Court "must enter an order disbarring" an attorney who has been convicted "of a felony or of a misdemeanor involving moral turpitude." See also § 36-2-18(A) NMSA 1978 (1991 Repl. Pamp.) (stating a lawyer "may be" disbarred or suspended for his conviction of a crime "involving moral turpitude in which case the record of conviction is conclusive"); NMR 16-804; and NMRA 17-207.
Whether the misconduct with which a person is charged, is a crime involving moral turpitude or, if a crime, whether it is malum prohibitum or malum in se or, for that matter whether the act is a felony or misdemeanor, is not the issue. The true question in considering disbarment is whether the act to which respondent pleaded guilty was "contrary to honesty, justice or good morals." Matter of Morris,74 N.M. 679, 397 P.2d 475 (1964) (member of bar was guilty of crime of involuntary manslaughter resulting from driving motor vehicle under the influence of intoxicating liquor, and such offense was an act contrary to honesty, justice, or good morals sufficient to support a suspension from practice).
0.2:250 Sanctions in Judicial Proceedings
The courts of New Mexico have inherent authority to impose sanctions upon attorneys in judicial proceedings for improper conduct, including conduct detrimental to the court's ability to control its docket and proceedings before it. See generally State ex rel. N.M. State Highway & Transp. Dep't v. Baca, 120 N.M. 1, 896 P.2d 1148 (1995); and Matter of Jade G, 130 N.M. 687, 30 P.3d 376 (Ct. App. 2001). Sanctions in judicial proceedings are also discussed infra, e.g., in section 3.1:300 et seq.
While it is not the province of the district court to sanction attorneys for breaching ethical rules, it is within the court's discretion in an equitable proceeding to vindicate the public policy evidenced by those rules. U.S. v. 36.06 Acres of Land, 70 F. Supp.2d 1272 (D.N.M. 1999).
0.2:260 Criminal and Civil Liability
A lawyer may, of course, be subject to criminal liability if that lawyer's conduct violates the proscriptions of a criminal statute. In addition, NMRA 16-102 states that a lawyer shall not engage, or counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent or which misleads the court, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning, or application of law. When a lawyer knows that a client expects assistance not permitted by the Rules of Professional Conduct or other law, the lawyer should consult with the client regarding the relevant limitations on the lawyer's conduct.
An attorney's violation of a Rule of Professional Conduct should not give rise to a private cause of action, or otherwise constitute a basis for civil liability. NMR Scope.
0.2:270 Federal Courts and Agencies
The state of New Mexico comprises a single federal judicial district the District of New Mexico. Generally speaking, admission to, and continuing membership in, the bar of the United States District Court for the District of New Mexico is limited to members in good standing in the State Bar of New Mexico.
An attorney residing outside the District of New Mexico may participate in an action in the District if the attorney is a member in good standing of the bar of another state and associates with a resident member of the Federal Bar, or if the attorney applies to practice in the District. DNM LR-Civ 83.3.
0.2:280 Ethics Rules Applied in Federal Courts in New Mexico
The Rules of Professional Conduct adopted by the Supreme Court of the State of New Mexico apply to practice in the United States District Court for the District of New Mexico, except as otherwise provided by local rule or by court order. DNM LR-Civ 83.9. Lawyers appearing in the federal court in New Mexico must comply with A Creed of Professionalism of the New Mexico Bench and Bar. Id.
0.3:300 Organization of This Library and the Model Rules
This narrative utilizes the outline for state narratives prepared for the American Legal Ethics Library. That outline in turn relies heavily on the organization of the Model Rules of Professional Conduct, which is essentially as follows:
Client-Lawyer Relationship
NMR 16-101 to 16-116
Counselor
NMR 16-201 to 16-203
Advocate
NMR 16-300 to 16-309
Transactions with Persons Other than Clients
NMR 16-401 to 16-404
Law Firms and Associations
NMR 16-501 to 16-506
Public Service
NMR 16-601 to 16-604
Information About Legal Services
NMR 16-701 to 16-707
Maintaining the Integrity of the Profession
NMR 16-801 to 16-805
0.4:400 Abbreviations, References and Terminology
0.4:410 "Belief" or "Believe"
Denotes that the person involved actually supposed the fact in question to be true. A person's belief may be inferred from the circumstances. NMR Terminology.
0.4:420 "Consults" or "Consultation"
Denotes communication of information reasonably sufficient to permit the client to appreciate the significance of the matter in question. Id.
0.4:430 "Firm" or "Law Firm"
Denotes a lawyer or lawyers in a private firm, lawyers employed in the legal department of a corporation or other organization, and lawyers employed in a legal services organization. Id.
Note that whether two or more lawyers constitute a firm within this definition can depend on the specific facts. For example, two practitioners who share office space and occasionally consult or assist each other ordinarily would not be regarded as constituting a firm. However, if they present themselves to the public in a way suggesting that they are a firm or conduct themselves as a firm, they should be regarded as a firm for the purposes of the Rules. The terms of any formal agreement between associated lawyers are relevant in determining whether they are a firm, as is the fact that they have mutual access to confidential information concerning the clients they serve. Furthermore, it is relevant in doubtful cases to consider the underlying purpose of the rule that is involved. A group of lawyers could be regarded as a firm for the purposes of the rule that the same lawyer should not represent opposing parties in litigation, while it might not be so regarded for the purposes of the rule that the information acquired by one lawyer is attributed to another. NMR 16-110, Comment.
With respect to the law department of an organization, there is ordinarily no question that the members of the department constitute a firm within the meaning of the Rules of Professional Conduct. However, there can be uncertainty as to the identity of the client. For example, it may not be clear whether the law department of a corporation represents a subsidiary or an affiliated corporation, as well as the corporation by which the members of the department are directly employed. A similar question can arise concerning an unincorporated association and its local affiliates. Id.
Similar questions can also arise with respect to lawyers in legal aid. Lawyers employed in the same unit of a legal service organization constitute a firm, but not necessarily those employed in separate units. As in the case of independent practitioners, whether the lawyers should be treated as associated with each other depends on the specific facts of the situation. Id.
0.4:440 "Fraud"
Denotes conduct having a purpose to deceive and not merely negligent misrepresentation or failure to apprise another of relevant information. NMR, Terminology.
0.4:450 "Knowingly," "Known," or "Knows"
Denotes actual knowledge of the fact in question. A person's knowledge may be inferred from circumstances. Id.
0.4:460 "Partner"
Denotes a member of a partnership and a shareholder in a law firm organized as a professional corporation. Id.
0.4:470 "Reasonable" or "Reasonably"
When used in relation to conduct by a lawyer, denotes the conduct of a reasonably prudent and competent lawyer. Id.
0.4:480 "Reasonable belief" or "Reasonably believes"
When used in reference to a lawyer, denotes that the lawyer believes the matter in question and that the circumstances are such that the belief is reasonable. Id.
0.4:490 "Substantial"
When used in reference to a degree or extent, denotes a material matter of clear and weighty importance. Id.
0.4:500 Additional Definitions in New Mexico
"Reasonably should know" when used in reference to a lawyer denotes that a lawyer of reasonable prudence and competence would ascertain the matter in question. Id.
I. CLIENT-LAWYER RELATIONSHIP
1.1 Rule 1.1 Competence
1.1:100 Comparative Analysis of New Mexico Rule
* Primary New Mexico Reference: New Mexico Rule 16-101:
"A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation."
* Background References: ABA Model Rule 1.1, Other Jurisdictions
* New Mexico Commentary:
Attorneys in New Mexico are guided by A Creed of Professionalism of the New Mexico Bench and Bar, which provides "I will keep current in my practice areas, and, when necessary, will associate with or refer my client to other more knowledgeable or experienced counsel," and "I will be courteous to and considerate of my client at all times."
1.1:101 Model Rule Comparison
NMR 16-101 and its accompanying commentary are substantially the same as MR 1.1 and commentary, as adopted by the House of Delegates of the American Bar Association on August 2, 1983.
1.1:102 Model Code Comparison
DR 6-101(A)(1) provides that a lawyer shall not handle a matter "which he knows or should know that he is not competent to handle, without associating himself with a lawyer who is competent to handle it." NMR 16-101 requires an attorney to provide competent representation regardless of his association with other lawyers, but as the comment states, "competent representation can also be provided through the association of a lawyer of established competence in the field." DR 6-101(A)(2) requires "preparation adequate in the circumstances." It specifically delineates that competent representation "requires the legal knowledge, skill, thoroughness," and preparation reasonably necessary for the representation. DR 6-101(A)(3) prohibits the "neglect of a legal matter," whereas NMR 16-101 requires the lawyer to represent the client competently. See also EC 1-1, EC 1-2, EC 6-1, EC 6-2, EC 6-3, EC 6-4, and EC 6-5.
1.1:200 Disciplinary Standard of Competence
* Primary New Mexico Reference: New Mexico Rule 16-101
* Background References: ABA Model Rule 1.1, Other Jurisdictions
* Commentary: ABA/BNA § 31:201, ALI-LGL § 16, Wolfram § 5.1
* New Mexico Commentary:
NMR 16-101 requires a lawyer to provide representation of a client with the "legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation." However, a "lawyer need not necessarily have special training or prior experience to handle legal problems of a type with which the lawyer is unfamiliar. A newly admitted lawyer can be as competent as a practitioner with long experience.... A lawyer can provide adequate representation in a wholly novel field through necessary study. Competent representation can also be provided through the association of a lawyer of established competence in the field in question." NMR 16-101, Comment.
Violation of the competency requirement is one of the most common grounds for attorney discipline in New Mexico. Whether an attorney will be found to have violated the requirement necessarily depends on the particular circumstances of the representation, and the needs of the client involved. Isolated instances of incompetence and failure to work with the client will not necessarily prove unethical behavior. See Matter of Reif, 121 N.M. 758, 918 P.2d 344 (1996).
Research, analysis and timeliness are fundamental in the legal profession; no lawyer should approach any task without knowledge of the applicable statutes, court rules, and case law, especially in matters with which one is not intimately familiar. Matter of Neal, 130 N.M. 139, 20 P.3d 121 (2001).
The mere acceptance of money from an individual or an appointment from a court to provide legal representation, requires that the lawyer begin to represent the client competently. This includes providing the necessary representation, as well as doing so in a timely manner. See Matter of Barrera, 124 N.M. 220, 947 P.2d 495 (1997) (finding neglect following acceptance of payment by client); and Matter of Ordaz, 121 N.M. 779, 918 P.2d 365 (1996) (citing for incompetence attorney who cashed judgment payment and failed to remit funds to clients).
Commonly, a violation of the competency requirement in NMR 16-101 is found when an attorney has committed conduct that is or may be proscribed by another rule. For example, the Supreme Court has often found that problems involving client funds can justify a finding that an attorney has violated NMR 16-101. In Matter of Darnell, 123 N.M. 323, 940 P.2d 171 (1999), the lawyer's failure to create trust fund accounts for his client funds constituted violation of the competency rule. See also, e.g., Matter of Jones, 119 N.M. 229, 889 P.2d 837 (1995).
Violations of a lawyer's duty to communicate with the client have also led to findings of lawyer incompetence. For example, failure of an attorney to provide adequate communication to the client in order to keep the client abreast of actions in the case, was deemed to constitute incompetence in Matter of Tapia, 108 N.M. 650, 77 P.2d 378 (1989); see also, e.g., Matter of Tapia, 110 N.M. 693, 799 P.2d 129 (1990); Matter of Rivera, 112 N.M. 217, 813 P.2d 1015 (1991); Matter of Ordaz, 121 N.M. 779, 918 P.2d 365 (1996); and Matter of Barrera, 124 N.M. 220, 947 P.2d 495 (1997).
An attorney may be cited for violating the competence requirement if he fails to appear at meetings or hearings. Failure to appear may constitute incompetence even if it is limited to a small number of meetings or appointments. See Matter of Allred, 106 N.M. 227, 741 P.2d 830 (1987); Matter of Tapia, 108 N.M. 650, 77 P.2d 378 (1989); Matter of Klein, 119 N.M. 460, 891 P.2d 1214 (1995); and Matter of Privette, 110 N.M. 352, 796 P.2d 245 (1990) (citing attorney for violation of competence rule after attorney was drinking in a liquor establishment instead of appearing at a hearing).
Similarly, an attorney was cited for incompetence when he essentially stopped appearing for any appointments at all; under those circumstances, the attorney appeared to have abandoned the practice and was perpetrating fraud on his clients. Matter of Martínez, 108 N.M. 252, 771 P.2d 185 (1989). See also Matter of Romero, 130 N.M. 190, 22 P.3d 215 (2001) (abandonment of clients is clearly insufficient to protect clients' interests); Matter of Chowning, 100 N.M. 375, 671 P.2d 36 (1983) (abandonment of client warrants suspension); and Matter of Lally, 126 N.M. 566, 973 P.3d 243 (1999) (neglect of legal matter leading to its dismissal with prejudice, coupled with overt pattern of deception intended to convince client that matter was being pursued, and failure to cooperate in disciplinary investigation, was conduct warranting indefinite suspension from practice of law).
The Supreme Court has also identified violations of NMR 16-101 in a number of cases where the attorney's actions failed to meet the requirements of the particular case. While the nature of the violation in these cases was somewhat specific to the representation undertaken, the cases provide guidance regarding how the Supreme Court views the competence requirement.
In Matter of Klipstine, 108 N.M. 481, 775 P.2d 247 (1989), the attorney failed to file the statement of financial affairs and schedules of debts and assets as required by the Bankruptcy Code. He subsequently filed forgeries to overcome the deficiencies. It was concluded that the attorney himself forged the documents even though he claimed no knowledge of the forgeries. In addition, the attorney withheld from the client funds recovered on a worker's compensation claim, in order to pay costs incurred in a related federal court claim incurred because the attorney did not file documents correctly. The attorney was held to have violated NMR 16-101.
Similarly, in Matter of Sullivan, 108 N.M. 735, 779 P.2d 112 (1989), the attorney failed to correctly file papers with the bankruptcy court. Upon discovery of the problem, the attorney did not make an effort to re-file or pay the necessary fees. In Matter of Steere, 112 N.M. 205, 813 P.2d 482 (1991), the lawyer did not take the steps necessary to preserve a claim under the New Mexico Tort Claims Act. In Matter of Roberts, 119 N.M. 769, 895 P.2d 669 (1995), the attorney failed to docket the appeal, leading to the dismissal of the appeal as well as the attorney misrepresenting the status of the appeal to the client.
In Matter of Fandey, 118 N.M. 590, 884 P.2d 481 (1994), the court held that the attorney was incompetent for abandoning his practice without taking the necessary steps to ensure the interests of his clients would not be adversely affected. Even when the attorney is withdrawing from the practice of law for reasons related to the attorney's health, the attorney must take the necessary steps to protect the interests of the client. See Matter of Barrera, 124 N.M. 220, 947 P.2d 495 (1997).
The court has cited individual attorneys who have failed to pay expert witnesses, and therefore, have lost the testimony. Matter of Steere, 112 N.M. 205, 813 P.2d 482 (1991); see also Matter of Martínez, 108 N.M. 252, 771 P.2d 185 (1989) (attorney asked client for more funds to obtain testimony of a treating mental health expert, but since expert never examined the client, court found attorney violated duty to provide competent representation).
Failure to follow the procedural rules applicable for the particular case demonstrates a lack of competence. See Matter of Tapia, 108 N.M. 650, 77 P.2d 378 (1989); Matter of Reif, 121 N.M. 758, 918 P.2d 344 (1996); Matter of Dawson, 129 N.M. 252, 8 P.3d 856 (2000) (failure to comply with Rules of Appellate Procedure constituted violation of competence rule); and Matter of Neal, 130 N.M. 139, 20 P.3d 121 (2001).
Where the attorney fails to understand the needs of the client or the underlying law, the court may find the attorney to be incompetent for purposes of that representation. In Matter of Allred, 106 N.M. 227, 741 P.2d 830 (1987), the lawyer filed a complaint alleging less than the actual damages that the client could recover. When the deficiency was brought to his attention by opposing counsel, the lawyer failed to amend the complaint in order to seek the full amount of recoverable damages. In Matter of Hanratty, 110 N.M. 354, 796 P.2d 112 (1990), the attorney represented clients in a bankruptcy proceeding in which the clients' primary goal was to retain possession of their home. The attorney determined that the bankruptcy should be converted from Chapter 7 to Chapter 11, but failed to inform the clients that Chapter 11 status would create the possibility of the clients losing their home. Subsequently, the attorney failed to keep abreast of the clients' status and ultimately they lost their home. The court held this was evidence that the attorney was not competent to practice bankruptcy law, and observed the lawyer could have associated with an experienced and competent bankruptcy attorney.
In Matter of Reid, 116 N.M. 38, 859 P.2d 1065 (1993), the lawyer misread the statute of limitations as being from the date of death, instead of the date of the malpractice. He narrowly escaped the dismissal of the case by claiming that the malpractice occurred up until the very last day that the client was in the nursing home. Later, the home filed for bankruptcy, preventing or hindering recovery. The court stated that "taking no action to investigate the factual basis of the client's case, identify witnesses, or obtain relevant documents, and conducting no research into the legal basis of the claim or the applicable statute of limitations does not satisfy the requirement of providing competent representation, defined as 'the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.'" See also Matter of Markley, 101 N.M. 565, 686 P.2d 255 (1984) (attorney disciplined for failure to file client's claim within statute of limitations, subsequent frivolous appeal, and mishandling sale of former client's property).
In Matter of Cutter, 118 N.M. 152, 879 P.2d 784 (1994), the attorney failed to obtain a modified restraining order, interim child support, or the sole possession of the marital home for his client. He also agreed to and signed off on a temporary restraining order without the permission of the client. The court found this failure to achieve results for the client and acting outside the bounds of the client's permission, were evidence that the attorney was violating the competence requirement.
The court has also found that filing frivolous claims or producing witnesses with no beneficial testimony, is grounds for a citation of incompetence. In Matter of Bloomfield, 121 N.M. 605, 916 P.2d 224 (1996), the court found that it was a violation of the rule of competence for the attorney to pursue hopeless claims in an effort to "keep them alive" for possible settlement. Similarly, a lawyer was cited for incompetence for calling witnesses who did not help the client's case at all, and for offering no other evidence, in Matter of Righter, 126 N.M. 730, 975 P.2d 343 (1999) (stating indefinite suspension was warranted because of attorney's violation of competence rule, and rules pertaining to charging an excessive fee, failing to expedite litigation, making an untrue statement of material fact to a tribunal, failing to comply with a discovery request, practicing law in a jurisdiction where doing so violates regulations, and engaging in conduct involving dishonesty, deceit and misrepresentation). In Matter of Richards, 127 N.M. 716, 986 P.2d 1117 (N.M. 1999), the court found that the lawyer's filing of a frivolous counterclaim in a foreclosure action in which the client was asserted to have a lien on her own property that was superior to the mortgagee's interest, violated disciplinary rules requiring attorney competence. Further, defense counsel's failure to tender proper jury instructions amounted to ineffective assistance of counsel, in State v. Talley, 103 N.M. 33, 702 P.2d 353 (Ct. App. 1985).
In Matter of Reif, 121 N.M. 758, 918 P.2d 344 (1996), the lawyer filed a lien that could only be attached to real property, yet he filed it against personal property loaded on a railway car; he failed to advise his clients that additional documents were needed to complete the real estate transaction; he requested relief in bankruptcy that does not exist; and he filed a pleading that bore no plausible relationship to the proof of the claim. The court stated "[a]ttorneys cannot shoot from the hip and have any hope of complying with the obligation to provide competent representation."
In Matter of Elmore, 123 N.M. 79, 934 P.2d 273 (1997), the court, finding that the attorney failed to address potential secured claims against his client under the Chapter 7 proceeding even though the creditor notified the attorney of the claim's secured status before the client received discharge, stated "[r]espondent's lackadaisical approach to the protection of his client's interests did not meet the standard of competence required by the Rules of Professional Conduct."
Suspension was warranted in Matter of Arrieta, 104 N.M. 389, 722 P.2d 640 (1986), where the attorney made misrepresentations to a court, failed to return unearned fees, failed to render an accounting to a client, and otherwise acted in a manner prejudicial to the administration of justice.
Other cases include Matter of Laughlin, 104 N.M. 630, 725 P.2d 830 (1986) (attorney suspended for neglecting a legal matter, engaging in conduct involving dishonesty or misrepresentation, and for failure to give full cooperation and assistance to counsel for the Disciplinary Board); Matter of Quintana, 104 N.M. 511, 724 P.2d 220 (1986) (multiple violations of numerous rules involving misrepresentation, neglect, improper fee splitting, disrespect to various tribunals, and conduct prejudicial to the administration of justice, resulted in lawyer being suspended indefinitely from legal practice); Matter of Carlton, 128 N.M. 419, 993 P.2d 736 (2000) (indefinite suspension warranted because attorney violated competence rule, plus rules relating to abiding by a client's decisions regarding the objectives of the representation, acting with reasonable diligence and promptness, keeping a client reasonably informed about status of legal matter, surrendering papers and property to which client is entitled, engaging in conduct prejudicial to the administration of justice, responding to lawful request for information from the office of Disciplinary Counsel, and cooperating with Disciplinary Counsel in the course of an investigation); Matter of Roth, 105 N.M. 255, 731 P.2d 951 (1987) (attorney's apparent failure to complete several cases, to protect client's interest upon withdrawal, to promptly refund unearned portions of fees paid in advance, and lack of cooperation with Disciplinary Counsel, constituted unprofessional conduct warranting indefinite suspension from practice of law); Matter of Gallegos, 104 N.M. 496, 723 P.2d 967 (1986) (discussing attorney's inaction and incompetence in representing a client in a divorce action); Matter of Romero, 117 N.M. 577, 874 P.2d 785 (1994); Matter of Chávez, 129 N.M. 35, 1 P.3d 417 (2000); and Matter of Evans, 119 N.M. 305, 889 P.2d 1221 (1995) (discussing failure to act with diligence and promptness, causing injury to client).
1.1:300 Malpractice Liability
* Primary New Mexico Reference: New Mexico Rule 16-101
* Background References: ABA Model Rule 1.1, Other Jurisdictions
* Commentary: ABA/BNA § 301:101, ALI-LGL § 49-54, Wolfram § 5.6
* New Mexico Commentary:
01.1:310 Relevance of Ethics Codes in Malpractice Actions
The New Mexico courts have made it clear that the rules governing the ethical requirements of attorneys will not be applied against attorneys for malpractice standards. See, e.g., García v. Rodey, Dickason, Sloan, Akin & Robb, 106 N.M. 757, 750 P2d 118 (1988) (stating "[h]istorically, the Code was established to discipline attorneys. It was not intended to provide a foundation for civil liability.... [Likewise, the Rules] are not designed to be a basis of civil liability"). In addition, the Scope section of the Rules of Professional Conduct says "[v]iolation of a rule should not give rise to a cause of action nor should it create any presumption that a legal duty has been breached."
However, the New Mexico courts have recognized a connection between the Rules of Professional Conduct and identifying the standard of conduct applicable in a malpractice case. In Sanders, Bruin, Coll & Worley, P.A. v. McKay Oil Corp., 123 N.M. 457, 943 P.2d 104 (1997), the New Mexico Supreme Court referred to the rule of lawyer ethics regarding withdrawal from client matters in a civil malpractice action. The court stated that the Rules of Professional Conduct "provide guidance in ascertaining the extent of lawyers' professional obligations to their clients," but are not to be used as an absolute standard of conduct in a civil action.
1.1:320 Duty to Client
To recover on a claim of malpractice, the plaintiff must first show that the attorney owed the plaintiff a duty. See Delta Automatic Sys. v. Bingham, 126 N.M. 717, 974 P.2d 1174 (1999). An attorney who enters into an attorney-client relationship is under a duty to act with reasonable care and in full consideration of the rights of the client; breach of the duty may give rise to a civil malpractice action. Sanders, Bruin, Coll & Worley, P.A. v. McKay Oil Corp., 123 N.M. 457, 943 P.2d 104 (1997); see also Leyba v. Whitley, 120 N.M. 768, 907 P.2d 172 (1995) (express or implied contract that gives rise to lawyer client relationship is foundation of any legal malpractice claim by intended beneficiary).
1.1:330 Standard of Care
In order to establish the neglect of a duty owed by an attorney sufficient to allow recovery in a legal malpractice action, a client must show, usually through expert testimony, that his or her attorney failed to use the skill, prudence, and diligence of an attorney of ordinary skill and capacity. Rancho del Villacito Condominiums, Inc. v. Weisfeld, 121 N.M. 52, 908 P.2d 745 (1995).
However, a lawyer holding himself out to the public as specializing in an area of law must exercise the same skill as other specialists of ordinary ability specializing in the same field. Rodriguez v. Horton, 95 N.M. 356, 622 P.2d 261 (1980). See also, e.g., George v. Caton, 93 N.M. 370, 600 P.2d 822 (Ct. App. 1979) (when lawyer contracts to prosecute action on behalf of client, he impliedly represents that he possesses requisite degree of learning, skill and ability necessary to practice of his profession which others similarly situated ordinarily possess, that he will exert his best judgment in prosecution of litigation entrusted to him, and that he will exercise reasonable and ordinary care and diligence in use of his skill and application of his knowledge to his client's cause; in addition, if law on subject is well and clearly defined and has existed and been published long enough to justify belief that it was known to profession, lawyer who disregards rule or is ignorant of it renders himself liable for losses caused by such negligence or want of skill).
Under New Mexico law, legal malpractice based upon negligence requires proof of the following elements: (1) the employment of the defendant attorney, (2) the defendant attorney's neglect of a reasonable duty, and (3) that the negligence resulted in and was the proximate cause of loss to the plaintiff. Richter v. Van Amberg, 97 F. Supp.2d 1255 (D.N.M. 2000) (also stating that under New Mexico law, a legal malpractice claim is not barred simply because its substance enters the realm of conduct covered under the Rules of Professional Conduct). Thus, under New Mexico law, while the Rules of Professional Conduct provide some guidance in determining the professional obligations of a lawyer, they do not furnish independent grounds for a legal malpractice claim. See also, e.g., Glenborough Corp. v. Sherman & Howard, 121 N.M. 253, 910 P.2d 329 (Ct. App. 1995) (to recover on claim of legal malpractice based on negligence, plaintiff must prove that defendant attorney represented him or her and did not exercise reasonable duty of care, and that negligence resulted in and was proximate cause of loss to plaintiff); Garcia v. Rodey, Dickason, Sloan, Akin & Robb, P.A., 106 N.M. 757, 750 P.2d 118 (1988); and Hyden v. Law Firm of McCormick, Forbes, Caraway & Tabor, 115 N.M. 159, 848 P.2d 1086 (Ct. App. 1993).
In a legal malpractice case, a client has the burden of showing not only negligence on the part of her attorney, but also that her damages were proximately caused by that negligence; when the attorney's negligence involves an alleged failure to take certain action, the client must show that if the attorney had acted then the client would not have suffered damage, or at least not to the same degree. Carrillo v. Coors, 120 N.M. 283, 901 P.2d 214 (Ct. App. 1995); see also Resolution Trust Corp. v. Barnhart, 116 N.M. 384, 862 P.2d 1243 (Ct. App. 1993).
In Collins on Behalf of Collins v. Perrine, 108 N.M. 714, 778 P.2d 912 (Ct. App. 1989), the evidence was sufficient for the jury to find that the lawyer representing a medical malpractice plaintiff settled the case without performing even a minimal level of the discovery necessary in such a complex case, and that he lacked sufficient information about the facts and law involved when he decided to recommend settlement. The evidence was also sufficient to support the jury's finding that the plaintiff was damaged by the attorney's negligence in prematurely settling the case, and that a settlement would have been greater or a larger jury verdict could have been obtained had the negligence not occurred.
Legal malpractice based on negligence concerns violations of the standard of care, whereas legal malpractice based upon breach of fiduciary duty concerns violations of a standard of conduct pertaining to the lawyer's fiduciary obligations, ordinarily involving undivided loyalty and confidentiality. The elements to be proven in a legal malpractice action based on alleged breach of fiduciary duty include (1) the existence of a fiduciary relationship between the plaintiff and the defendant attorney, (2) breach of that fiduciary relationship by the defendant attorney, and (3) the breach of fiduciary relationship as the proximate cause of loss to the plaintiff. Richter v. Van Amberg, 97 F. Supp.2d 1255 (D.N.M. 2000).
1.1:335 Requirement of Expert Testimony
In order to establish the neglect of a duty owed by an attorney sufficient to allow recovery in a legal malpractice action, a client must show, usually through expert testimony, that his or her attorney failed to use the skill, prudence, and diligence of an attorney of ordinary skill and capacity. Rancho del Villacito Condominiums, Inc. v. Weisfeld, 121 N.M. 52, 908 P.2d 745 (1995); see also, e.g., Richter v. Van Amberg, 97 F. Supp.2d 1255 (D.N.M. 2000) (expert testimony normally necessary, but expert cannot create a duty as to a standard of care or conduct based upon an assumed obligation in the law). The necessary expert testimony ordinarily consists of the testimony of one or more other lawyers. Sanders v. Smith, 83 N.M. 706, 496 P.2d 1102 (1972); see also, e.g., Resolution Trust Corp. v. Barnhart, 116 N.M. 384, 862 P.2d 1243 (Ct. App. 1993) (proof of legal malpractice usually requires testimony of another attorney to establish applicable standards of practice).
However, where the actions of the attorney are clearly below any standard of reasonable care and the issue can be determined by the jury, the court will allow the malpractice action to go to the jury without plaintiff having presented expert testimony. DeLisle v. Avallone, 117 N.M. 602, 874 P.2d 1266 (1994) (allowing jury to decide question of breach regarding attorney's untimely filing for mortgage redemption, where parties did not dispute date on which redemption period expired or that attorney failed to timely file with knowledge that time to do so was running out).
1.1:340 Causation and Damages
See section 1.1:330, infra.
In addition, legal malpractice claims in New Mexico are governed by the state's principles of tort law. "To recover on a claim of legal malpractice based on negligence, plaintiff must prove that defendant attorney represented him or her and did not exercise reasonable duty of care, and that negligence resulted in and was proximate cause of loss to plaintiff." Glenborough Corp. v. Sherman & Howard, 121 N.M. 253, 910 P.2d 329 (1995). Where the plaintiff fails to establish that the defendant was the proximate cause of the injury, a finding of liability will be precluded. Carrillo v. Coors, 120 N.M. 283, 901 P.2d 214 (1995).
The amount of damages to be awarded is the amount that would have been received, or the amount lost depending on the circumstances, but for the attorney's negligence. Hyden v. Law Firm of McCormick, Forbes, Caraway & Tabor, 115 N.M. 159, 848 P.2d 1086 (1993); see also, e.g., Collins on Behalf of Collins v. Perrine, 108 N.M. 714, 778 P.2d 912 (1989) (proper measure of damages in legal malpractice action was amount of judgment that could have been recovered but for attorney's negligence in original lawsuit); and Richardson v. Glass, 114 N.M. 119, 835 P.2d 835 (1992).
1.1:350 Waiver of Prospective Liability [see 1.8:910]
NMR 16-108(H) places limitations on an attorney's ability to prospectively limit his liability to a client for malpractice. Pursuant to the rule, an attorney cannot create limitations beyond those permitted by law. Also, for such a waiver to be valid, the client must be independently represented in making the agreement.
1.1:360 Settlement of Client's Malpractice Claim [see 1.8:920]
Pursuant to NMR 16-108(H), an attorney is not permitted to settle a claim for such liability with an unrepresented client or former client without first advising that person in writing that independent representation is appropriate.
1.1:370 Defenses to Malpractice Claim
Malpractice claims in New Mexico are subject to the same defenses as exist in all negligence claims governed by state tort law.
In New Mexico, ordinary rules govern the application of the statute of limitations defense in the context of legal malpractice. Duncan v. Campbell, 123 N.M. 181, 936 P.2d 863 (1997). Even if the "continuous representation doctrine" were applied, if the representation is terminated, the statute of limitations would begin run. Sharts v. Natelson, 118 N.M. 721, 885 P.2d 642 (1994). It has also been held that failure to raise the issue of malpractice as a compulsory counterclaim can create res judicata, precluding such a claim in a subsequent action. Brunacini v. Kavanagh, 117 N.M. 122, 869 P.2d 821 (1993).
Public defenders are generally immune from suits for malpractice. Coyazo v. State, 120 N.M. 47, 897 P.2d 234 (Ct. App. 1995). However, an attorney who is privately retained as guardian ad litem to advocate approval of a settlement in an action by a child to recover for damages, is not entitled to quasi judicial immunity; instead, such attorney should be held to the same standard as all other attorneys in their representation of clients. Collins on Behalf of Collins v. Tabet, 111 N.M. 391, 806 P.2d 40 (1991).
A client need not exhaust claims against every potential defendant in a case, in order to show damage caused by an attorney's malpractice has deprived the client of a claim against one defendant. Collins on Behalf of Collins v. Perrine, 108 N.M. 714, 778 P.2d 912 (Ct. App. 1989). Nor does status as a professional corporation confer upon an attorney-shareholder a limitation on liability for the attorney's negligence, personal breach of duty, or malpractice, even in the context of corporate activities and decisions. Sanders, Bruin, Coll & Worley, P.A. v. McKay Oil Corp., 123 N.M. 457, 943 P.2d 104 (1997); see also Leyba v. Whitley, 120 N.M. 768, 907 P.2d 172 (1995) (limits of liability generally applicable to persons paying money to authorized fiduciary do not supersede specific professional duties arising out of contract to prosecute wrongful death action).
1.1:380 Liability to Client for Breach of Contract, Breach of Fiduciary Duty, and Other
Liabilities
Legal malpractice based on negligence concerns violations of the standard of care, whereas legal malpractice based upon breach of fiduciary duty concerns violations of a standard of conduct pertaining to the lawyer's fiduciary obligations, ordinarily involving undivided loyalty and confidentiality. The elements to be proven in a legal malpractice action based on alleged breach of fiduciary duty include (1) the existence of a fiduciary relationship between the plaintiff and the defendant attorney, (2) breach of that fiduciary relationship by the defendant attorney, and (3) the breach of fiduciary relationship as the proximate cause of loss to the plaintiff. Richter v. Van Amberg, 97 F. Supp.2d 1255 (D.N.M. 2000).
The New Mexico Supreme Court stated, in Leyba v. Whitley, 120 N.M. 768, 907 P.2d 172 (1995), that the majority of malpractice claims fall within the realm of tort law. "While no reported case has been brought to our attention in which New Mexico courts have rejected a contract claim for professional services negligently performed, the gravamen of a malpractice action arising out of the lawyer-client relationship is generally recognized to lie in tort." The court found that if the action is based on the failure of specific provisions of an agreement, then the action is contractual. If the gravamen of the action is the failure of the attorney to meet one of the duties imposed upon him by law, the action lies in tort.
1.1:390 Liability When Non-Lawyer Would Be Liable
A lawyer normally is subject to the same liabilities as a non-lawyer.
1.1:400 Liability to Certain Non-Clients
* Primary New Mexico Reference: New Mexico Rule 16-101
* Background References: ABA Model Rule 1.1, Other Jurisdictions
* Commentary: ABA/BNA § 71:1101, ALI-LGL § 51, Wolfram § 5.6
* New Mexico Commentary:
1.1:410 Duty of Care to Certain Non-Clients
In García v. Rodey, Dickason, Sloan, Akin & Robb, 106 N.M. 757, 750 P.2d 118 (1988), the New Mexico Supreme Court found that usually a duty of care is owed to a non-client only where the non-client was an intended beneficiary of the attorney's services, or where it was reasonably foreseeable that negligent service or advice to or on behalf of the client could cause harm to others. "An attorney has no duty, however, to protect the interests of a non-client adverse party for the obvious reasons that the adverse party is not the intended beneficiary of the attorney's services...." The court rejected an action for negligence against the attorney because the attorney was under no duty to the opposing party. In particular, the attorneys' in court statements that their client, the defendant school board in a discrimination suit, would not rely on sovereign immunity as a bar to plaintiff's recovery, did not give rise to liability to the civil rights plaintiff on a negligence theory, following successful assertion of the sovereign immunity defense on appeal after plaintiff had dropped its suit against individual board members in reliance on the attorneys' statements.
In Leyba v. Whitley, 120 N.M. 768, 907 P.2d 172 (1995), the Court addressed whether a non-client was an intended beneficiary of the representation. The issue was whether an attorney for a personal representative prosecuting a wrongful death claim owed a duty to the statutory beneficiaries of the claim. The court said it is necessary to determine first whether the attorney's intent was to benefit the non-client, and if so, the court will balance the extent to which the transaction was intended to benefit the non-client, the foreseeability of harm to the non-client, the degree of certainty that the non-client suffered injury, the closeness of the connection between the attorney's conduct and the injury, the policy of preventing future harm, and the extent to which the profession would be unduly burdened by a finding of liability in favor of the non-client.
Other cases include Wisdom v. Neal, 568 F. Supp. 4 (D.N.M. 1982) (no attorney client relationship was necessary in order for heirs to recover from attorneys who handled estate and improperly determined that estate should be distributed per stirpes rather than per capita, in that attorneys owed duty of due care to heirs); Mayfield Smithson Enterprises v. Quip, Inc., 120 N.M. 9, 896 P.2d 1156 (1993) (attorneys for purchaser of motel property did not owe fiduciary duty to judgment creditor of previous lessee of property, even though creditor claimed that adversarial relationship between creditor and vendors and purchaser evolved into cooperative relationship); Delta Automatic Systems, Inc. v. Bingham, 126 N.M. 717, 974 P.2d 1174, (1999) (fact that labor lawyer and law firm had prepared wills for corporation's sole shareholders and had represented them on business matters apart from the representation of corporation did not establish that lawyer and law firm had special duty to the shareholders, as required for shareholders personally to bring action against lawyer and law firm for their alleged legal malpractice in failing to obtain termination of union contract; the allegation that lawyer and law firm knew that shareholders' livelihoods depended on corporation's success did not establish that lawyer and law firm had special duty to the shareholders, as required for shareholders personally to bring action against lawyer and law firm for their alleged legal malpractice in failing to obtain termination of union contract; sole shareholders of corporation were not the real clients in labor lawyer's and law firm's representation of corporation as to termination of union contract, and thus, shareholders could not personally bring legal malpractice action against lawyer and law firm for their alleged negligence in failing to obtain termination of the contract); Holland v. Lawless, 95 N.M. 490, 623 P.2d 1004 (Ct. App. 1981) (attorney of estate was not liable to purported purchaser for alleged negligent handling of real estate transaction in which estate administrator, through the attorney, entered into oral agreement with purported purchaser to lease property to him with added proviso that part of rental payments would be applied to possible future purchase, where there was no showing that an attorney client relationship existed and any duty attorney owed as broker was only to the administrator for the estate; thus, attorney owed no duty to purchaser regarding the transaction).
1.1:420 Reliance on Lawyer's Opinion [see also 2.3:300]
See section 1.1:410, infra.
In addition, NMR 16-203 limits when an attorney may undertake an evaluation of a matter affecting a client for the use of someone other than the client. The rule states that such an evaluation may be undertaken where the lawyer reasonably believes that making the evaluation is compatible with other aspects of the lawyer's relationship with the client, and the client consents after consultation. As discussed in the previous section, the requirement of privity between lawyer and non-client to support a malpractice claim, is relaxed where the non-client was an intended beneficiary of the representation. Where the injured party was not an intended beneficiary of the representation, the injured party normally will not have a claim against the attorney for malpractice.
Because participants in an electronic bulletin board may have an expectation of privacy and may rely on lawyer advice, an attorney should take steps to make clear when communicating with participants in such electronic bulletin boards that an attorney-client relationship does not exist prior to the usual intake procedures, including conflict checking. In addition, generally speaking, without an attorney-client relationship an attorney should not answer specific questions concerning legal matters from chat rooms. State Bar of New Mexico Advisory Opinions Committee Advisory Opinion ("State Bar Advisory Opinion") 2001-1.
1.1:430 Assisting Unlawful Conduct [see also 1.2:600 - 1.2:630]
NMR 16-102(D) provides that "[a] lawyer shall not engage, or counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent or which misleads the court, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law." This rule also says a lawyer who knows that a client expects assistance not permitted by the Rules of Professional Conduct or other law, shall consult with the client regarding the relevant limitations on the lawyer's conduct. Therefore, the extent of an attorney's representation is limited not only by the criminal code, but also by the rules governing legal ethics.
1.1:440 Knowledge of Client's Breach of a Fiduciary Duty [see also 1.13:520]
See NMR 16-102(D). In addition, NMR 16-113 guides lawyers for organizations who know that an officer of the organization will breach a duty that harms the corporation. Subject to exceptions, the rule calls for the attorney to address the situation internally, without raising the issue with outside persons or authorities. If the officer continues to direct actions towards the breach of duty, then the lawyer has grounds for withdrawal under NMR 16-116.
1.1:450 Failing to Prevent Death or Bodily Injury
There appear to be no New Mexico reported decisions addressing the liability of a lawyer to a non-client for the lawyer's failure to prevent the death or bodily injury of a non-client. Under NMR 16-106(B), an attorney "should" reveal information relating to representation of a client to the extent the attorney reasonably believes the disclosure is necessary to prevent imminent death or substantial bodily harm. Unlike a handful of states that have adopted rules requiring the revelation of such information (see AZ-ER 1.6(b)), New Mexico adopted the language of the Model Rule which merely suggests that a lawyer reveal such information, without placing a firm duty upon the lawyer. The attorney in New Mexico is further shielded by the "Reasonably believes necessary" language, which permits the lawyer to determine what is required to prevent harm to others.
1.1:500 Defenses and Exceptions to Liability
* Primary New Mexico Reference: New Mexico Rule 16-101
* Background References: ABA Model Rule 1.1, Other Jurisdictions
* Commentary: ABA/BNA § 301:1001, ALI-LGL §§ 54, 57, Wolfram § 5.6
* New Mexico Commentary:
Generally, a lawyer has the same defenses to claims against him that are common to defendants in negligence claims.
1.1:510 Advocate's Defamation Privilege
New Mexico recognizes the advocate's defamation privilege. "If the alleged defamatory statement is made to achieve the objects of the litigation, the [attorney's] absolute privilege applies even though the statement is made outside the courtroom and no function of the court or its officers is involved." Romero v. Prince, 85 N.M. 474, 513 P.2d 717 (1973). However, where the publication or other defamatory material is immaterial to the action, the privilege may be overcome and an action for defamation may lie. Superior Const., Inc. v. Linnerooth, 103 N.M. 716, 712 P.2d 1378 (1986).
1.1:520 Wrongful Use of Civil Proceedings; Abuse of Process; False Arrest
While there do not appear to be any reported cases in New Mexico relating these legal theories to the conduct of lawyers, in DeVaney v. Thriftway Marketing Corp., 124 N.M. 512, 953 P.2d 277 (1997), the court held a "malicious abuse of process" cause of action requires the following four elements: (1) initiation of judicial proceedings against the plaintiff by the defendant, (2) an act by the defendant in the use of process other than such as would be proper in the regular prosecution of the claim, (3) a primary motive by the defendant in misusing the process to accomplish an illegitimate end, and (4) damages. See also Westar Mortgage Corp. v. Jackson, 133 N.M. 114, 61 P.3d 823 (2002).
1.1:530 Assisting Client to Break a Contract
Nothing in New Mexico case law or the Rules of Professional Conduct appears to expressly prohibit an attorney from assisting a client to break a contract. Because an attorney owes his duty only to his clients and intended beneficiaries of his counsel, the opposing party in a breach of contract case would not likely have a valid claim for malpractice against an attorney who assisted in the breach. However, it is unclear whether an attorney in such a situation may be liable to a third person for tortious interference with contract, tortious interference with prospective business advantage, or a similar claim.
1.1:600 Vicarious Liability [see 5.1:500]
* Primary New Mexico Reference: New Mexico Rule 16-101
* Background References: ABA Model Rule 1.1, Other Jurisdictions
* Commentary: ABA/BNA § 91:201, ALI-LGL § 58, Wolfram § 5.6
* New Mexico Commentary:
In the context of discipline and professional responsibility, NMR 16-501 governs the duties of partners and supervisory attorneys in a law firm. A lawyer who has direct supervision over another lawyer must make reasonable efforts to ensure that the other lawyer conforms to the Rules of Professional Conduct. A lawyer will be held responsible for another's violation of a rule if the lawyer orders or ratifies such conduct, or if the lawyer knows of the conduct at a time when its consequences could have been avoided or mitigated but failed to take reasonable remedial action.
In the context of professional malpractice, the normal rules of respondeat superior would appear to apply. See N.M. UJI Civil No. 13-401 to -409; and state statutes relating to professional organizations.
1.5 Rule 1.5 Fees
1.5:100 Comparative Analysis of New Mexico Rule
* Primary New Mexico Reference: New Mexico Rule 16-105:
"A. Determination of reasonableness. A lawyer's fee shall be reasonable. The factors to be considered in determining the reasonableness of a fee include the following:
(1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;
(2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;
(3) the fee customarily charged in the locality for similar legal services;
(4) the amount involved and the results obtained;
(5) the time limitations imposed by the client or by the circumstances;
(6) the nature and length of the professional relationship with the client;
(7) the experience, reputation, and ability of the lawyer performing the services; and
(8) whether the fee is fixed or contingent.
B. Basis or rate of fees. When the lawyer has not regularly represented the client, the basis or rate of the fee shall be communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation.
C. Contingency fees. A fee may be contingent on the outcome of the matter for which the service is rendered, except in a matter in which a contingent fee is prohibited by Paragraph D or other law. A contingent fee agreement shall be in writing and shall state the method by which the fee is to be determined, including the percentage or percentages that shall accrue to the lawyer in the event of settlement, trial or appeal, litigation and other expenses to be deducted from the recovery, and whether such expenses are to be deducted before or after the contingent fee is calculated. Upon conclusion of a contingent fee matter, the lawyer shall provide the client with a written statement stating the outcome of the matter and, if there is a recovery, showing the remittance to the client and the method of its determination.
D. Prohibited fee arrangements. A lawyer shall not enter into an arrangement for, charge, or collect:
(1) any fee in a domestic relations matter, the payment or amount of which is conting