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Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.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

1.4 Rule 1.4 Communication

1.4:100 Comparative Analysis of New Mexico Rule

Primary New Mexico Reference: New Mexico Rule 16-104:

“A.      Status of matters.  A lawyer shall:

            (1)        promptly inform the client of any decision or circumstance with respect to which the client’s informed consent, as defined in Paragraph E of Terminology of the Rules of Professional Conduct, is required by these rules;

            (2)        reasonably consult with the client about the means by which the client’s objectives are to be accomplished;

            (3)        keep the client reasonably informed about the status of the matter;

            (4)        promptly comply with reasonable requests for information; and

            (5)        consult with the client about any relevant limitation on the lawyer’s conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law.

B.        Client’s informed decision-making.  A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

C.        Disclosure of professional liability insurance.

(1)        If, at the time of the client’s formal engagement of a lawyer, the lawyer does not have a professional liability insurance policy with limits of at least one-hundred thousand dollars ($100,000) per claim and three-hundred thousand dollars ($300,000) in the aggregate, the lawyer shall inform the client in writing using the form of notice prescribed by this rule.  If during the course of representation, an insurance policy in effect at the time of the client’s engagement of the lawyer lapses, or is terminated, the lawyer shall provide notice to the client using the form prescribed by this rule.

(2)        The form of notice and acknowledgment required under this Paragraph shall be:

NOTICE TO CLIENT

Pursuant to Rule 16-104(C) NMRA of the New Mexico Rules of Professional Conduct, I am required to notify you that [“I” or “this Firm”] [do not] [does not] [no longer] maintain[s] professional liability malpractice insurance of at least one-hundred thousand dollars ($100,000) per occurrence and three-hundred thousand dollars ($300,000) in the aggregate.

 

_______________________________

Attorney’s signature

 

CLIENT ACKNOWLEDGMENT

I acknowledge receipt of the notice required by Rule 16-104(C) NMRA of the New Mexico Rules of Professional Conduct, that [insert attorney or firm’s name] does not maintain professional liability malpractice insurance of at least one-hundred thousand dollars ($100,000) per occurrence and three-hundred thousand dollars ($300,000) in the aggregate.

 

________________________________

Client’s signature

(3)        As used in this Paragraph, “lawyer” includes a lawyer provisionally admitted under Rule 24-106 NMRA and Rules 26-101 through 26-106 NMRA; however it does not include a lawyer who is a full-time judge, in-house corporate counsel for a single corporate entity, or a lawyer who practices exclusively as an employee of a governmental agency.

(4)        A lawyer shall maintain a record of the disclosures made pursuant to this rule for six (6) years after termination of the representation of the client by the lawyer.

(5)        The minimum limits of insurance specified by this rule include any deductible or self-insured retention, which must be paid as a precondition to the payment of the coverage available under the professional liability insurance policy.

(6)        A lawyer is in violation of this rule if the lawyer or the firm employing the lawyer maintain a professional liability policy with a deductible or self-insured retention that the lawyer knows or has reason to know cannot be paid by the lawyer or the lawyer’s firm in the event of a loss.”

 

1.4:101   Model Rule Comparison

NMR 16-104 departs significantly from MR 1.4 by adding the requirement stated in Paragraph C. for lawyers without substantial professional liability insurance to disclose that fact to clients at the time of engagement.  The New Mexico rule also specifies the form of disclosure, and includes a Committee Commentary which explains the requirement.  Amended Paragraph C of NMR 16-104 is effective November 2, 2009. 

New Mexico is now one of a small group of states that requires lawyers to disclose directly to their clients whether they maintain a minimum level of malpractice coverage.  Most states only direct lawyers to provide insurance information in their annual registration statements.  The New Mexico rule prescribes use of an approved form to make disclosure to clients if a lawyer carries less than $100,000 in malpractice insurance, or $300,000 in aggregate coverage for multiple occurrences.  It also obligates lawyers to maintain records of disclosures for six years after the representation ends.

The earlier version of NMR 16-104(A) stated simply “a lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.” The more elaborate provisions of current NMR 16-104(A) arise from ABA amendments to MR 1.4.

 

1.4:102   Model Code Comparison

 

1.4:200 Duty to Communicate with Client

Several reported decisions relate to an attorney’s failure to communicate, including In re Fandey, 118 N.M. 590, 884 P.2d 481 (1994), in which an attorney who did not pursue representation of clients and who abandoned his office and all forms of communication with his clients was subject to a one-year suspension.  See also NMR 16-104 Comments [1] to [7].  In general, a lawyer must keep the client reasonably well-informed, but in some circumstances may delay transmission of information to the client.

1.4:300 Duty to Consult with Client

 

1.4:400 Duty to Inform the Client of Settlement Offers

A lawyer generally must transmit settlement offers and proffered plea bargains to the client.  Exceptions arise where the client has previously indicated the proposal will be acceptable or unacceptable, and the client has authorized the lawyer to accept or reject the offer.  See NMR 16-104 Comment [2].