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Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.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

1.2 Rule 1.2 Scope of Representation

1.2     Rule 16-102 Scope of Representation and Allocation of Authority Between Client and Lawyer

1.2:100            Comparative Analysis of New Mexico Rule

•                     Primary New Mexico Reference: New Mexico Rule 16-102:

“A.      Client’s decisions.  Subject to Paragraphs C and D of this rule, a lawyer shall abide by a client’s decisions concerning the objectives of representation and, as required by Rule 16-104 NMRA of the Rules of Professional Conduct, shall consult with the client as to the means by which they are to be pursued.  A lawyer may take such action on behalf of the client as is impliedly authorized to carry out the representation.  A lawyer shall abide by a client’s decision whether to settle a matter.  In a criminal case, the lawyer shall abide by the client’s decisions, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify.

 

B.        Representation not endorsement of client’s views.  A lawyer’s representation of a client, including representation by appointment, does not constitute an endorsement of the client’s political, economic, social or moral views or activities.

C.        Limitation of representation.  A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent.

D.        Course of conduct.  A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent or misleads the tribunal.  A lawyer may, however, 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.”

1.2:101            Model Rule Comparison

NMR 16-102 includes paragraph headings not found in MR 1.2. In addition, unlike in the Model Rule, in New Mexico a lawyer shall not advise or help a client in conduct that “misleads the tribunal.”

The Comment to NMR 16-102 includes part [8] which is not found in the Model Rule Comment, and which explains Paragraph C.  Among other things, Comment [8] states a lawyer may undertake limited representation without also assuming additional responsibilities.  It also calls for a lawyer to explain the benefits and risks of limited representation.

Current NMR 16-102 includes a provision, not previously found in the rule, which authorizes attorneys to take such actions as are impliedly authorized to carry out the representation.

The 2008 amendments eliminated former NMR 16-102(E), which required a lawyer to consult with a client when the client expected impermissible conduct by the lawyer.

1.2:200            Creating the Client-Lawyer Relationship

This topic and the related topic of a lawyer’s duties to a prospective client are addressed in NMR 16-118 and Comment.  In general, a lawyer must keep a prospective client’s information confidential, and may not engage in a conflicted representation.  In certain situations, client consents may overcome restrictions on a lawyer’s conduct.

1.2:300            Authority to Make Decisions or Act for a Client

The allocation of authority between client and lawyer is addressed in NMR 16-102 Comments [1] to [4].  In general, the client has ultimate authority over the purpose of the representation, while client and lawyer share responsibilities concerning the means to be used to achieve the client’s objective.

1.2:500            Limiting the Scope of Representation

 

See NMR 16-102 Comments [6] to [9].  In general, with informed client consent, a lawyer may ethically limit the scope of representation.

1.2:600            Prohibited Assistance

Comments [10] to [14] elaborate upon subpart [D] to NMR 16-102.  Generally speaking, a lawyer is prohibited from knowingly counseling or assisting a client to commit a crime or fraud.

1.2:800            Identifying to Whom a Lawyer Owes Duties

See 1.1:330 supra.