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End-of-life notice: American Legal Ethics Library

As of March 1, 2013, the Legal Information Institute is no longer maintaining the information in the American Legal Ethics Library. It is no longer possible for us to maintain it at a level of completeness and accuracy given its staffing needs. It is very possible that we will revive it at a future time. At this point, it is in need of a complete technological renovation and reworking of the "correspondent firm" model which successfully sustained it for many years.

Many people have contributed time and effort to the project over the years, and we would like to thank them. In particular, Roger Cramton and Peter Martin not only conceived ALEL but gave much of their own labor to it. We are also grateful to Brad Wendel for his editorial contributions, to Brian Toohey and all at Jones Day for their efforts, and to all of our correspondents and contributors. Thank you.

We regret any inconvenience.

Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.


New Mexico Rules of Professional Conduct

Comment - Rule 7.2

[1] To assist the public in obtaining legal services, lawyers should be allowed to make known their services not only through reputation but also through organized information campaigns in the form of advertising. Advertising involves an active quest for clients, contrary to the tradition that a lawyer should not seek clientele. However, the public's need to know about legal services can be fulfilled in part through advertising. This need is particularly acute in the case of persons of moderate means who have not made extensive use of legal services. The interest in expanding public information about legal services ought to prevail over considerations of tradition. Nevertheless, advertising by lawyers entails the risk of practices that are misleading or overreaching.

[2] This Rule permits public dissemination of information concerning a lawyer's name or firm name, address and telephone number; the kinds of services the lawyer will undertake; the basis on which the lawyer's fees are determined, including prices for specific services and payment and credit arrangements; a lawyer's foreign language ability; names of references and, with their consent, names of clients regularly represented; and other information that might invite the attention of those seeking legal assistance.

[3] Questions of effectiveness and taste in advertising are matters of speculation and subjective judgment. Some jurisdictions have had extensive prohibitions against television advertising, against advertising going beyond specified facts about a lawyer, or against "undignified" advertising. Television is now one of the most powerful media for getting information to the public, particularly persons of low and moderate income; prohibiting television advertising, therefore, would impede the flow of information about legal services to many sectors of the public. Limiting the information that may be advertised has a similar effect and assumes that the bar can accurately forecast the kind of information that the public would regard as relevant.

[4] Neither this Rule nor Rule 7.3 prohibits communications authorized by law, such as notice to members of a class in class action litigation.

[5] Paragraph (a) permits communication by mail to a specific individual as well as general mailings, but does not permit contact by telephone or in person delivery of written material except through the postal service or other delivery service.

Record of Advertising

[6] Paragraph (b) requires that a record of the content and use of advertising be kept in order to facilitate enforcement of this Rule. It does not require that advertising be subject to review prior to dissemination. Such a requirement would be burdensome and expensive relative to its possible benefits, and may be of doubtful constitutionality.

Paying Others to Recommend a Lawyer

[7] A lawyer is allowed to pay for advertising permitted by this Rule, but otherwise is not permitted to pay another person for channeling professional work. This restriction does not prevent an organization or person other than the lawyer from advertising or recommending the lawyer's services. Thus, a legal aid agency or prepaid legal services plan may pay to advertise legal services provided under its auspices. Likewise, a lawyer may participate in not-for-profit lawyer referral programs and pay the usual fees charged by such programs. Paragraph (c) does not prohibit paying regular compensation to an assistant, such as a secretary, to prepare communications permitted by this Rule.

Responsibility for Compliance

[8] Every lawyer who participates in communications concerning the lawyer's services is responsible for assuring that the specified Rules are complied with and must be prepared to substantiate compliance with those Rules. That may require retaining records for more than the three years specified in paragraph (b) of this Rule.

Model Code Comparison

Rule 7.2(a) has no counterpart in the Maryland Disciplinary Rules, which spoke in terms of what advertising is prohibited rather than in terms of what is permitted. DR 2-103(B) prohibits a lawyer from recommending to a non-lawyer the employment of the lawyer, "his partner ... or associate," except for "commercial advertising which complies with DR 2-101." DR 2-103(A). See also DR 2-104(A). This could have been construed as prohibiting all direct mailings seeking legal employment sent to those known to need legal services in specific matters. Such direct mailings are specifically permitted by Rule 7.2(a), but are subject to Rule 7.3(b) as well as Rule 7.1.

With regard to Rule 7.2(b), DR 2-101(D) provides that "If the advertisement is communicated over television or radio ..., a recording of the actual transmission shall be retained by the lawyer."

With regard to Rule 7.2(c), DR 2-101(B) provides that "A lawyer shall not compensate or give anything of value to representatives of the press, radio, television, or other communication medium in anticipation of or in return for professional publicity in a news item." DR 2-103(C) provides that "A lawyer shall not compensate or give anything of value to a person or organization to recommend or secure his employment ... except that he may pay the usual and reasonable fees or dues charged by any of the organizations listed in DR 2-103(D)." (DR 2-103(D) refers to legal aid and other legal services organizations.)

There is no counterpart to Rule 7.2(d) in the Code.

There is no counterpart to Rule 7.2(e) in the Code.

Rule 7.2 (f) is substantially the same as the last paragraph of DR 2-101(A).

SUPREME COURT COMMITTEE ON RULES OF PROFESSIONAL CONDUCT COMMENTS

Rule 16-702(E)(3) NMRA must be read together with Rule 16-108(E)(1) NMRA.  As the Compiler's note to the latter rule makes clear, the New Mexico Rule concerning the client's ultimate responsibility for court costs and expenses of litigation differs from the ABA model rule.  The discrepancy between the New Mexico rule and the model rule adopted in other jurisdictions creates the potential for misunderstanding or misinterpretation of lawyer advertisements concerning contingent fees, unless the lawyer advertisement makes it clear that the client is responsible for expenses regardless of the outcome of the case.  Using the words, "client will bear the expenses of litigation incurred in the client's case regardless of the outcome" will satisfy the requirements of Rule 16-702(E)(3) NMRA, although similar language which imparts the message unambiguously to the client will also satisfy the requirement.  Since clients may not understand the distinction between costs and fees, it is important to draw this distinction to their attention.

Additional language concerning such subjects as the attorney's willingness to advance costs is acceptable--even useful at times--so long as it does not interfere with or confuse the message that the client is responsible for costs regardless of outcome.