skip navigation
search

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Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.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

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.”
  • Secondary New Mexico Reference:  Comment to NMR 16-101  (see Appendix attached)
  • Background References: ABA Model Rule 1.1, Other Jurisdictions
  • Commentary:
  • New Mexico Commentary: A Creed of Professionalism of the New Mexico Bench and Bar

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 Committee Commentary are identical to MR 1.1 and commentary as they currently exist, except the Committee Commentary to NMR 16-101 adds a reference to a system of peer review.

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

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, Committee Commentary.  The Commentary also states lawyers should consider making use of any system of peer review in appropriate circumstances.

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

1.1:310   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.

The Preamble and the Scope to NMR discusses the relevance of ethics codes in malpractice actions.  While “violation of a rule should not itself give rise to a cause of action ... nor ... create any presumption in such a case that a legal duty has been breached,” “a lawyer’s violation of a rule may be evidence of breach of the applicable standard of conduct.”

 

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.  For such a waiver to be valid, the client must be independently represented in making the agreement; or if the client or former client is not separately represented, he or she must be advised in writing of the desirability for separate representation and be afforded a reasonable opportunity to seek it.

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, and without giving the person a reasonable opportunity to obtain independent legal advice.  An attorney may prospectively limit malpractice liability to a client by dealing with another lawyer who represents the client for purposes of the agreement. 

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

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

1.1:410   Duty of Care to Certain Non-Clients

In Garcia 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.

An arbitration proceeding is not a judicial proceeding for the purposes of a claim for malicious abuse of process against an attorney, and plaintiffs did not allege facts indicating that the attorney harbored a desire to harm plaintiffs independent of her desire to protect her client as required under NMR 16-102(D), 106(B),(C).  Durham v. Guest, 2007-NMCA-144, 142 N.M. 817, 171 P.3d 756. In this case, plaintiffs were policyholders who sued an attorney that represented the insurance company in an uninsured motorist dispute.  Plaintiffs alleged the attorney acted in bad faith while litigating and arbitrating the Plaintiffs’ claims. 

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.” 

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, including a “noisy withdrawal.” 

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 “may” 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

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]

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.