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Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.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

1.6 Rule 1.6 Confidentiality of Information

1.6:100 Comparative Analysis of New Mexico Rule

“A.      Disclosure of information generally.  A lawyer shall not reveal information relating to representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by Paragraph B of this rule.

B.        Disclosure of information; specific circumstances.  A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:

(1)        to prevent reasonably certain death or substantially bodily harm;

(2)        to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer’s services;

(3)        to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client’s commission of a crime or fraud in furtherance of which the client has used the lawyer’s services;

(4)        to secure legal advice about the lawyer’s compliance with these rules;

(5)        to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved or to respond to allegations in any proceeding concerning the lawyer’s representation of the client; or

(6)        to comply with other law or a court order.”

1.6:101   Model Rule Comparison

NMR 16-106 and MR 1.6 are substantially identical, except the 2008 Committee Commentary to NMR 16-106 includes commentary not included in the ABA Comment to MR 1.6 concerning confidentiality of attorney billing statements.  According to the New Mexico Commentary, where an insured, having retained a defense lawyer to represent an insured, imposes a requirement that the lawyer’s bills be submitted to a third-party auditor for review, approval, and payment, a lawyer can legitimately disclose billing information to the third party.  However, when the information involves work product or attorney-client privilege information, such information should not be disclosed to a third-party auditor unless informed consent is first obtained from the insured or unless the lawyer is otherwise ordered by a court to produce the billing information.

The 2008 amendments reflect changes to MR 1.6, including that consent to disclose requires “informed consent” rather than “consent after consultation,” and in Paragraph (B) an extensive restatement of the circumstances under which a lawyer “may” reveal information relating to the representation.

1.6:102   Model Code Comparison

The principle of confidentiality is enlarged in several respects and narrowed in a few respects, compared with the corresponding provisions of the Code.  One enlargement is that NMR 16-106(A) applies the confidentiality requirement to all information about a client “relating to the representation,” while under the Code the confidentiality requirement applies only to information “gained in” the professional relationship that the client asks to be kept confidential or that would harm the client if disclosed. See EC 4-1, EC 4-2, EC 4-3, EC 4-4, DR 4-101(A), (B)&(C), and DR 7-102(B).

1.6:200 Professional Duty of Confidentiality

New Mexico has statutorily codified the duty of a lawyer to maintain the confidences of his or her client, in § 36-2-10(E) NMSA 1978 (1991 Repl. Pamp.) (stating it is the duty of lawyers in New Mexico “To maintain inviolate the confidence and preserve the secrets of his client”).  See also § 36-2-16 NMSA 1978 (1991 Repl. Pamp.) (providing that any attorneys “who maliciously reveal the secrets of their client to the opposite party” or who desert or unduly jeopardize the interests of their clients, shall be punished by fine and disbarment); and NMR 16-106 Comments [3] to [6] and [18] to [20] (explaining the professional duty of confidentiality, and discussing competence in preserving confidentiality, and responsibilities to former clients.

The professional duty of confidentiality may even prohibit a lawyer from revealing information regarding a representation to a person who has a connection with the representation.  In State Bar Advisory Opinion 2000-2, for example, the Committee determined that because lawyer bills are normally protected as confidential information under NMR 16-106, an attorney may not disclose his or her statements for services rendered in connection with representation of insureds, to third party auditors hired by insurers.  However, according to the Rules of Professional Conduct Committee Comment to NMR 16-106, billing statements may be disclosed to third party auditors if the statements do not contain information that is protected by the attorney-client privilege or the work product doctrine; further, such statements may be disclosed to third party auditors even when they contain information protected by the attorney-client privilege or the work product doctrine, if the insured first gives informed consent.

1.6:210   Definition of Protected Information

Information that is intended to be disclosed to third persons is not protected as confidential.  State v. Deutsch, 103 N.M. 752, 713 P.2d 1008 (Ct. App. 1985) (finding defendant’s attorney did not violate client’s confidentiality by testifying as to contents of letter written to judge).  Further, it has been held that “inquiries into the general nature of legal services provided do not violate the attorney-client privilege because they involve no confidential information.”  Schein v. Northern Rio Arriba Elec. Coop., 122 N.M. 800, 932 P.2d 490 (1997).

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 grounds of NMR 16-106.

1.6:220   Lawyer's Duty to Safeguard Confidential Client Information

A lawyer must do whatever may be required under the circumstances to maintain the confidentiality of client information.  In Matter of Moore, 129 N.M. 217, 221, 4 P.3d 664, 668 (2000), the court instructed that a lawyer may not rely on a financial institution to maintain proper client trust fund records, and to the extent office security is a concern in connection with the lawyer maintaining the necessary records, “the attorney must take whatever steps are necessary to protect confidential information, whether it concerns clients’ legal matters or trust account records.”

Prospective clients may also be owed a duty to safeguard information, even if safeguarding the information is contrary to the interests of a client.  In Matter of Lichtenberg, 117 N.M. 325, 871 P.2d 981 (1994), the lawyer was notified by defense counsel in a civil rights case he filed, that a certain prison guard may be a witness in the case.  The lawyer then interviewed the prison guard regarding possible representation of the prison guard in a landlord-tenant dispute.  During the interview the guard divulged details of his personal life that were relevant to the alleged civil rights violation.  The court determined that it was not acceptable for the lawyer to use in the civil rights case the confidential information imparted by the prison guard.  Accordingly, the duty of confidentiality under NMR 16-106 may attach when the lawyer agrees to consider whether a client-lawyer relationship shall be established.

A lawyer’s exercise of discretion not to disclose confidential information under NMR 16-106 should be free from reexamination.  NMR Scope.

See also State Bar Advisory Opinion 1992-2 (discussing client confidences after death of client).

1.6:230   Lawyer Self-Dealing in Confidential Information [see also 1.8:300]

Improper self-dealing in confidential client information may arise when the lawyer attempts to use client information for personal gratification or preservation.  In Matter of Silverberg, 108 N.M. 768, 779 P.2d 546 (1989), for example, the attorney retaliated against the client for the client’s complaint against the attorney to the Disciplinary Board, by accusing the client of an event of perjury that would be known to the attorney only through a confidential conversation with the client, resulting in attorney discipline.  See also Matter of Schmidt, 118 N.M. 213, 880 P.2d 310 (1994) (lawyer deeded client property to lawyer’s son and when client demanded the property be deeded back, lawyer threatened to reveal confidential information he learned in course of representing client; lawyer disciplined).

1.6:240   Use or Disclosure of Confidential Information of Co-Clients

 

1.6:250   Information Imparted in Lawyer Counseling Programs

 

1.6:260   Information Learned Prior to Becoming a Lawyer

 

1.6:300 Exceptions to Duty of Confidentiality--In General

 

1.6:310   Disclosure to Advance Client Interests or with Client Consent

The lawyer’s duty to safeguard confidential client information is overcome where the client or former client consents to disclosure, after consultation.  State v. Barnett, 125 N.M. 739, 965 P.2d 323 (1998) (former client may consent to attorney disclosing information regarding representation).

However, there is no implied authority for an attorney to disclose his or her statements for services rendered to persons outside of the normal tripartite relationship consisting of attorney, insurer and insured.  An insured would have to consent to disclosure of the lawyer’s bills, but it may be an impermissible conflict for the lawyer to seek and obtain the consent.  State Bar Advisory Opinion 2000-2.

Conditions allowing for the disclosure of client information are discussed in NMR 16-106 Comments [7] to [17].

1.6:320   Disclosure When Required by Law or Court Order

There are some instances when an attorney must provide information that might be regarded as protected by the lawyer-client confidentiality requirement.  One example exists where an attorney may not invoke the confidentiality rule to prevent a court from obtaining trust account information for purposes of investigation.  Matter of Rawson, 113 N.M. 758, 833 P.2d 235 (1992).  Further, an attorney cannot assert confidentiality as a defense to improper trust account recording.  An attorney must keep these records within arm’s reach for reporting purposes.  Matter of Moore, 129 N.M. 217, 4 P.3d 664 (2000).  Another example arose in a medical malpractice case, in which a statute protecting the credentialing file of a doctor was superceded by the court’s constitutional right to regulate the discovery process.  Southwest Community Health Servs v. Smith, 107 N.M. 196, 755 P.2d 40 (1988).

See also State Bar Advisory Opinion 1989-2 (discussing conflict between lawyer’s duties of confidentiality owed to client, and a federal statute that requires the lawyer who receives $10,000 or more in cash from a client to report the receipt and the client’s identity to the Internal Revenue Service; stating attorney’s advice to client should attempt to lead to scenario in which neither duty is violated). 

Conditions allowing for the disclosure of client information are discussed in NMR 16-106 Comments [7] to [17].

1.6:330   Disclosure in Lawyer's Self-Defense

An attorney may reveal privileged information in litigation if, and only if, the disclosure is “necessary to establish a claim or defense in a controversy between the attorney and client.”  Matter of Silverberg, 108 N.M. 768, 779 P.2d 546 (1989).  In a dispute about the distribution of personal injury settlement funds, an attorney’s revelation of his client’s prior perjurious activity was not necessary.  Id.

1.6:340   Disclosure in Fee Dispute

A lawyer may appear pro se in a suit against his former client for fees, and may testify in the suit.  State Bar Advisory Opinion 1986-11.  Also, when a lawyer hires a commercial collection agency, he must disclose only the minimum background information regarding the client necessary to establish or collect the fee.  State Bar Advisory Opinion 1998-7.

1.6:350   Disclosure to Prevent a Crime

NMR 16-106(B) states exceptions to the confidentiality requirement to prevent the client from committing a criminal act that the lawyer believes is likely to result in imminent death, substantial bodily harm, or substantial injury to the financial interest or property of another.

According to State Bar Advisory Opinion 1987-1, an attorney who takes assignments from the Lawyer Referral for the Elderly Project, who learns that a client is suicidal, and who arranges the client’s affairs and drafts the client’s will, has no duty to communicate to anyone the client’s possible intent to commit suicide, as suicide is not a crime in New Mexico.

In State Bar Advisory Opinion 1985-6, the Committee stated that a lawyer has no obligation to report the attempted fraud of a former client to the district attorney when the intended victim of the fraud has learned of the attempted fraud.  The lawyer may not cooperate with the intended victim in prosecuting the former client, however, since doing so would entail disclosing secrets of the former client.

1.6:360   Disclosure to Prevent Death or Serious Bodily Injury

When the lawyer believes the client is likely to commit a criminal act that will cause death or serious bodily injury, the lawyer “may” disclose confidential information to prevent it.  NMR 16-106(B).

1.6:370   Disclosure to Prevent Financial Loss

When the lawyer believes the client is likely to commit a criminal act that will cause substantial injury to the financial interest or property of another, the lawyer “may” disclose confidential information to prevent it, “to the extent the lawyer reasonably believes necessary.”  NMR 16-106(B).

A lawyer is required to disclose a client’s confidential information where the client has invested her father’s assets for her own use, where her father’s intent is for the assets to support him, where the lawyer has advised the client’s father that a mortgage would be executed to protect the father, but where the client has refused to execute the mortgage and has ordered the lawyer not to have contact with the father.  State Bar Advisory Opinion 1988-9.

1.6:380   Physical Evidence of Client Crime [see 3.4:210]

See section 3.4:210 infra.

1.6:390   Confidentiality and Conflict of Interest

A conflict of interest will be found to exist when a lawyer is acting adversely to the interests of a former client in a matter that is the same or substantially related to the prior matter; such “substantial relationship” is found to exist generally where the attorney is in position to exploit confidential information previously learned during representation of the former client.  See section 1.9:210 infra; State v. Chambers, 86 N.M. 383, 524 P.2d 999 (Ct. App. 1974) (attorney who defended person in criminal case that ended in mistrial, was precluded from prosecuting defendant on retrial); and Leon, Ltd. v. Carver, 104 N.M. 29, 715 P.2d 1080 (1986) (while a “superficial resemblance between the current and prior representations will not, without more, create a violation” of NMR 16-109, and “even if the relationship between the past and present representations is not clear at the outset so as to justify disqualification, the court may later disqualify if, during trial, it appears that an attorney may be using confidential information against a former client”).

Similarly, counsel may not represent a party to a lawsuit, while concurrently representing the opposing party in activities involving the subject of the lawsuit.  United Nuclear Corp. v. General Atomic Co., 96 N.M. 155, 629 P.2d 231 (1980) (decided under former rules).  Moreover, an attorney may not use a pre-representation interview as a means to gather information about a witness in separate pending litigation. Matter of Lichtenberg, 117 N.M. 325, 871 P.2d 981 (1994).

In the criminal context, a prosecutor may not use information against a defendant, where the information was learned during the prosecutor’s prior representation of defendant as defense counsel.  State v. Barnett, 125 N.M. 739, 965 P.2d 323 (1998).  Also, an attorney may not represent two persons where the testimony of one to exonerate the other, will, in fact, incriminate the one testifying.  State v. Santillanes, 109 N.M. 781, 790 P.2d 1062 (1990).  Where, however, one attorney represents several defendants, each of whose testimony does not compromise his or her own case, client confidentiality is not compromised and there is no conflict of interest.  Churchman v. Dorsey, 122 N.M. 11, 919 P.2d 1076 (1996).

1.6:395   Relationship with Other Rules

Confidentiality concerns may arise at the intersection of the Rules of Professional Conduct, and the New Mexico Children’s Code.  The Children’s Code requires that an attorney-guardian ad litem be appointed to represent the best interests of the child in all civil abuse and neglect cases.  State ex rel. Children, Youth & Families Dep’t v. George F., 125 N.M. 597, 964 P.2d 158 (1998), citing § 32A-1-4(J) NMSA 1978.  The process further requires the attorney to communicate with a social worker, who is represented by Department attorneys, but this communication may violate NMR 16-402, which prohibits ex parte communication with someone who is represented by another attorney.  Id. The court has found that these communications are not ex parte because both parties are working on behalf of the child’s interests.  Id.

Because NMR 17-204(A) requires attorneys to maintain detailed records of trust account activity, an attorney may not assert “confidentiality” as an excuse for not keeping these records up-to-date and at hand in his or her office.  Matter of Moore, 129 N.M. 217, 4 P.3d 664 (2000).

While confidentiality can be waived under some circumstances, § 41-9-5 NMSA 1978 prohibits any party in a civil litigation action from even voluntarily disclosing information from a physician’s credentialing records.  In fact, there are criminal penalties for such a violation.  Although the statute does not create an evidentiary privilege, for public policy reasons it does establish immunity because of the confidential nature of this information.  Southwest Community Health Servs. v. Smith, 107 N.M. 196, 755 P.2d 40 (1988).

An attorney was held not to have committed the tort of breach of confidence by sending to the New Mexico Secretary of State a letter by the Disciplinary Board admonishing adversary counsel for an ethical violation, in Fernandez-Wells v. Beauvais, 127 N.M. 487, 983 P.2d 1006 (1999).  Any duty of confidentiality created by NMR 17-304 is not of the sort protected by the tort of breach of confidence.  Id.

1.6:400 Attorney-Client Privilege

In a provision without counterpart in the MR, the NMR Scope states the Rules are not intended to govern or affect judicial application of either the attorney-client or work product privilege.  Further, clients are entitled to expect that communications within the scope of the privilege will be protected against compelled disclosure.

1.6:410   Privileged Communications

The attorney-client privilege should only be applied to protect communications, and not facts.  An individual who has knowledge of material facts cannot, merely by reporting to the attorney, prevent the other party from questioning him as to those facts.  Accordingly, there is no blanket protection under the attorney-client privilege for the observations and conclusions of an expert witness, whether or not contained in the expert’s report.  Similarly, an expert witness cannot prevent the adverse party from questioning him as to his conclusions or expert opinions by communicating them to the attorney for the party that retained the expert.  State v. Steinkraus, 76 N.M. 617, 417 P.2d 431 (1966).

The attorney-client privilege has been held not to apply to a guardian ad litem’s communications with a child when the guardian ad litem is not functioning in the customary role of a lawyer.  State ex. rel. Children Youth and Families Dept. v. George F., 125 N.M. 597, 964 P.2d 158 (Ct. App. 1998)See also Diversified Development & Inv. v. Heil, 119 N.M. 290, 889 P.2d 1212 (1995) (the attorney-client privilege did not prohibit disclosure of what a vendor authorized its agent, an attorney, to agree upon with, or communicate to purchase option holder in relation to extension of option, in holder’s action against vendor for alleged breach of option; trial court should have examined client\attorney communications and allowed holder to discover portions detailing instructions to agent and scope of agent’s authority regarding option).

A statement to an attorney for a former client that the attorney may be a witness in a matter, is not subject to the attorney-client privilege.  State Bar Advisory Opinion 1987-4. Also, the practice of lawyers sharing depositions of expert medical witnesses with other lawyers does not violate the attorney-client privilege.  State Bar Advisory Opinion 1986-6.

Because documentation regarding representation of indigent defendants under the Criminal Justice Act is privileged, it may not be unsealed by a motion of a newspaper to gain access.  United States v. Gonzales, 1997 U.S. Dist. LEXIS 4099 (D.N.M. 1997).

An attorney must provide detailed information about legal billing to a client when the client desires to analyze the nature and quality of the attorney’s provided legal services.  This information falls outside of the protection of the attorney-client privilege.  Schein v. Northern Rio Arriba Elec. Coop., 122 N.M. 800, 932 P.2d 490 (1997).  In Schein, while lawyer billing information was claimed to be “sensitive” and “intended to be confidential,” it was found to be “ministerial” and therefore to fall outside of the attorney-client privilege.  Information about the purpose for which an attorney is retained or the steps an attorney took in fulfilling his obligations are not protected.  Also, inquiries into the general nature of legal services provided do not violate the attorney-client privilege because they involve no confidential information, and the attorney-client privilege does not necessarily preclude discovery of instructions given to attorney by client.  Nor does the privilege bar discovery of the nature and scope of attorney’s authority.  However, in the event corporate documents are subject to the attorney-client privilege, they may be withheld from shareholders. 

The burden of establishing the elements of the attorney-client privilege rests with the party asserting it.  Sanchez v. KPMG Peat Marwick, 1994 U.S.Dist. LEXIS 11208 (D.N.M. 1994)See also, e.g., Krahling v. Executive Life Ins. Co., 125 N.M. 228, 959 P.2d 562 (Ct. App. 1998) (burden of proving an assertion of privilege in discovery rests upon party asserting it).

In Sanchez, it was determined that an index of documents not disclosed in discovery due to a claim of privilege must contain information sufficient for the court to evaluate the claim of privilege, namely: (1) the place, approximate date, and the manner of preparing the document; (2) the name of the person at whose request the document was prepared; (3) the name of each person or persons participating in preparation of the writing; (4) the name and position, if any, of each person to whom the contents of the writings have been communicated by copy, exhibition, reading or substantial summarization; (5) the names of the person or persons presently in custody of the original or true copy of the writings; and (6) a precise statement of the grounds for work-product or attorney-client protection for each document.  In addition, the attorney-client privilege does not protect all communications between the attorney and the client.  Mixed business-legal communications are not privileged unless they are predominately legal.  1994 U.S.Dist. LEXIS 11208.  See also Pina v. Espinoza, 130 N.M. 661, 29 P.3d 1062 (Ct. App. 2001) (discussing proof necessary to establish a privilege).

1.6:420   Privileged Persons

In State v. Valdez, 95 N.M. 70, 618 P.2d 1234 (1980), the court determined that the presence of another attorney when a person charged with a crime confessed to one attorney, did not destroy the confidential nature of communication, where both attorneys were considered to be representing the person charged; thus, the privilege would apply to both attorneys and would extend to any conversation between them.

1.6:430   Communications "Made in Confidence"

Communications between a lawyer and a client are protected by the Sixth Amendment only if there is an expectation of privacy for such.  An inmate who discusses his case with his lawyer via the prison phone where a posted sign says conversations may be monitored and recorded, may be deemed to have waived the attorney-client privilege.  State v. Coyazo, 123 N.M. 200, 936 P.2d 882 (1997).  Communications between a lawyer and potential client, however, may be considered confidential if the lawyer subsequently uses the communications against the potential client.  Matter of Lichtenberg, 117 N.M. 325, 871 P.2d 981 (1994).

1.6:440   Communications from Lawyer to Client

 

1.6:450   Client Identity, Whereabouts, and Fee Arrangements

 

1.6:460   Legal Assistance as Object of Communication

The rule is violated when an attorney does not inform a potential client that a conflict of interest precludes the formation of an attorney-client relationship, and uses the interview as a means for gathering information which the attorney subsequently uses against the potential client in a legal proceeding.  Matter of Lichtenberg, 117 N.M. 325, 871 P.2d 981 (1994).  The duty of confidentiality attaches in this situation, and the Disciplinary Board will reprimand attorneys who violate it.  Id.

1.6:470   Privilege for Organizational Clients

See NMR 16-402.

1.6:475   Privilege for Governmental Clients

Governmental entities may discuss actual or potential litigation with their attorneys in closed sessions, notwithstanding the Open Meetings Act.  Board of County Comm’rs v. Ogden, 117 N.M. 181, 870 P.2d 143 (Ct. App. 1994) (finding such communications are privileged).

1.6:480   Privilege of Co-Clients

 

1.6:490   Common-Interest Arrangements

According to New Mexico’s rule of evidence regarding the attorney-client privilege, a client “has a privilege to refuse to disclose . . . confidential communications made for the purpose of facilitating the rendition of professional legal services to the client . . . (3) by the client or client’s lawyer to a lawyer representing another in a matter of common interest.”  NMR 11-503.  See State v. Valdez, 95 N.M. 70, 618 P.2d 1234 (1980).

1.6:495   Duration of Attorney-Client Privilege

Where, prior to becoming an assistant district attorney, a staff member at the District Attorney’s office had worked on behalf of a defendant charged with child abuse and where the DA’s office prosecuted and obtained a conviction for the same charges after the assistant district attorney was hired, the District Attorney’s office sufficiently protected confidentiality between the new assistant and the defendant by precluding the lawyer from either directly or indirectly participating in the case, and from discussing the case with colleagues.  State v. Pennington, 115 N.M. 372, 851 P.2d 494 (Ct. App. 1993).

See State Bar Advisory Opinion 1992-2 (discussing client confidences after death of client).

1.6:500 Waiver of Attorney-Client Privilege

Once the attorney-client privilege has been asserted, an attorney may not disclose protected information until the client subsequently waives the privilege. Hunter v. Kenney, 77 N.M. 336, 422 P.2d 623 (1967) (attorney-client privilege belongs to client, and attorney has no option to waive the privilege, but he has affirmative duty to assert the privilege until his client has waived it).

1.6:510   Waiver by Agreement, Disclaimer, or Failure to Object

In DeMatteo v. Simon, 112 N.M. 112, 812 P.2d 361 (Ct. App. 1991), the defendants were held to have waived the right to assert the attorney-client privilege when the plaintiff cross-examined one defendant concerning privileged conversations where, prior to the defendants' first objection to the line of questioning, one defendant volunteered privileged information about the attorney's instructions and defendants failed to object to several questions that implicated the privilege; and further, defendants failed to object to several subsequent questions that implicated the privilege after counsel's one and only objection was overruled.

1.6:520   Waiver by Subsequent Disclosure

While inadvertent disclosure of documents may not waive their subsequent privileged status in some jurisdictions, the New Mexico courts may find the opposite after considering the following factors: (1) the reasonableness of the precautions taken to prevent inadvertent disclosure in view of the extent of the document production; (2) the number of inadvertent disclosures; (3) the extent of the disclosure; (4) any delay and measures taken to rectify the disclosures; (5) whether the overriding interests of justice would be served by relieving a party of its error. Hartman v. El Paso Natural Gas Co., 107 N.M. 679, 763 P.2d 1144 (1988) (finding waiver, stating waiver is a function of the prior disclosure, and quoting court in Parkway Gallery Furniture, Inc. v. Kittinger/Pennsylvania House Group, Inc., 116 F.R.D. 46, 50 (M.D. N.C. 1987)).

See also, e.g., State v. Ballinger, 99 N.M. 707, 663 P.2d 366 (Ct. App. 1983) (finding waiver where state's accusing witness testified he and his former attorney discussed "turning State's evidence"); State v. Earnest, 103 N.M. 95, 703 P.2d 872 (1985) (stating criminal defendant waived the attorney-client privilege when he testified regarding what he did not tell his attorney, and further, defendant may not assert another's privilege); and State v. Hogervorst, 90 N.M. 580, 566 P.2d 828 (Ct. App. 1977) (finding a waiver).

It was held in McDowell v. Napolitano, 119 N.M. 696, 895 P.2d 218 (1995), that the review by a witness of a document to refresh recollection of a document covered by the attorney-client privilege, was acceptable and did not constitute waiver where the contents of the document were never admitted into evidence, and the jury never saw the memorandum or learned of the controversy surrounding its use.

Privileged communications that are intentionally imparted to third parties cannot, however, again become privileged. Their intended disclosure renders the protection inapplicable, even if the attorney, on behalf of the client, makes the disclosure. State v. Deutsch, 103 N.M. 752, 713 P.2d 1008 (Ct. App. 1985).

Of course, the confidentiality privilege belongs to the client; therefore, once the client has waived the privilege, the lawyer is no longer required to maintain the privilege. Hunter v. Kenney, 77 N.M. 336, 422 P.2d 623 (1967).

1.6:530   Waiver by Putting Assistance or Communication in Issue

In Public Service Co. of New Mexico v. Lyons, 129 N.M. 487, 10 P.3d 166 (Ct. App. 2000), New Mexico sided with the minority of jurisdictions that require offensive or direct use of privileged of materials before the party will be deemed to have waived its attorney-client privileges. The court determined that application of the majority test would undermine the "full and frank" communications at the heart of the attorney-client privilege and would be contrary to the certainty that the rules themselves are intended to provide. The court also concluded that the more restrictive minority approach is consistent with the long held view that the attorney-client privilege should act as a shield and not a sword.

See also Skaggs v. Conoco, Inc., 125 N.M. 97, 957 P.2d 528 (Ct. App. 1998) (rejecting contention that pleading the defense of laches waived attorney-client privilege relative to title opinions sought by plaintiffs, since defendants were not shown to have relied upon those opinions to prove their defense of laches); Sanchez v. KPMG Peat Marwick, 1994 U.S.Dist. LEXIS 11208 (D.N.M. 1994) (any privilege as to communications between corporate directors and their in-house counsel was waived by the filing of a lawsuit alleging fraud and misrepresentation, because the information contained in the communications could be relevant to the defendant's defense); and National Excess Ins. v. Civerolo, Hansen & Wolf, 139 F.R.D. 398 (D.N.M. 1991) (stating that to be discoverable in legal malpractice action, communications between client and second attorney had to have occurred during the course of the underlying litigation).

1.6:600 Exceptions to Attorney-Client Privilege

 

1.6:610   Exception for Disputes Concerning Decedent's Disposition of Property

 

1.6:620   Exception for Client Crime or Fraud

 

1.6:630   Exception for Lawyer Self-Protection

When a client sues his attorney for malpractice, documents that would ordinarily be privileged may lose that status if they are relevant to a claim or defense.  National Excess Ins. v. Civerolo, Hansen & Wolf, 139 F.R.D. 398 (D.N.M. 1991).

1.6:640   Exception for Fiduciary-Lawyer Communications

 

1.6:650   Exception for Organizational Fiduciaries

 

1.6:660   Invoking the Privilege and Its Exceptions

 

1.6:700 Lawyer Work-Product Immunity

 

1.6:710   Work-Product Immunity

The test under New Mexico Rule of Civil Procedure 26 is whether, in light of the nature of the document and the factual situation in the particular case, the document can fairly be said to have been prepared or obtained because of the prospect of litigation.  Hartman v. Texaco, Inc., 123 N.M. 220, 937 P.2d 979 (Ct. App. 1997) (also stating that even though litigation is already in prospect, there is no work product immunity for documents prepared in the regular course of business rather than for purposes of the litigation).

The data or results of a survey are no more the work product of counsel than are the opinions of an expert.  State ex rel. New Mexico State Highway Comm’n v. Taira, 78 N.M. 276, 430 P.2d 773 (1967) (stating surveys have for their purpose the ascertainment of facts which are in no sense privileged).  See also State ex rel. New Mexico State Highway Comm’n v. Steinkraus, 76 N.M. 716, 417 P.2d 431 (1966) (stating that expert opinions are not protected as attorney work product, and that the opinions and conclusions of experts constitute evidence in themselves); and Furniture World, Inc. v. D.A.V. Thrift Stores, Inc., 168 F.R.D. 61 (D.N.M. 1996) (holding that a person initially selected to testify as an expert at trial cannot be shielded from questioning by later being also designated as a consultant expert and invoking the work product doctrine; counsel must choose to designate an expert as either one who will testify at trial or will consult with counsel).

In Knight v. Presbyterian Hospital Center, 98 N.M. 523, 650 P.2d 45 (Ct. App. 1982), the court reversed the trial court’s order compelling discovery of statements of hospital staff obtained by the hospital’s attorney in anticipation of medical malpractice litigation; the court ordered that only those statements that were made spontaneously after the decedent’s death were discoverable by the personal representative.  In addition, in United States v. Spivey, 1997 U.S. Dist. LEXIS 3903 (D.N.M. 1997), the court granted a motion filed by a criminal defense attorney to compel disclosure of the government attorney’s form regarding authorization to seek death penalty, over the government attorney’s claim of work product protection.

In Lewis v. Bloom, 96 N.M. 63, 628 P.2d 308 (1981) (decided under former rules), the court considered whether it was proper for a lawyer to destroy a tape recording of a witness’s recollection of an accident.  The court declined to find that the destruction constituted improper conduct, because the tape recording was the attorney’s work product which may be discovered only upon a showing of good cause, and because the evidence was insufficient to support that the tape contained any discoverable information.

See also Fine v. U.S. Dep’t of Energy, 830 F. Supp. 570 (D.N.M. 1993) (finding factual material in government attorney’s work product cannot be withheld from disclosure, in response to request under Freedom of Information Act).

1.6:720            Ordinary Work Product 

The work product rule in New Mexico provides a qualified immunity for ordinary work product.    Hartman v. Texaco, Inc., 123 N.M. 220, 937 P.2d 979 (Ct. App. 1997).

1.6:730            Opinion Work Product 

The work product rule is not a privilege but an immunity protecting from discovery documents and tangible things prepared by a party or its representatives in anticipation of litigation.  Rule 26 of the New Mexico Rules of Civil Procedure provides nearly absolute immunity for “opinion” work product, that is, documents which reflect an attorney’s mental impressions, conclusions, opinions or legal theories.    Hartman v. Texaco, Inc., 123 N.M. 220, 937 P.2d 979 (Ct. App. 1997).

1.6:740            Invoking Work-Product Immunity and Its Exceptions

The party asserting work product protection bears the burden of establishing that it applies.  Sufficient information must be provided so that the party’s adversary and the court may assess the claim of protection as to each withheld document.  Pina v. Espinoza, 130 N.M. 661, 29 P.3d 1062 (Ct. App. 2001) (also stating that a privilege log and any supplemental affidavits must affirmatively demonstrate objectively reasonable basis for assertion of protection; and disapproving of practice of permitting proponent of a privilege to rely on an initial conclusory assertion and to gradually unveil basis for claims of privilege). 

See also Hartman v. Texaco, Inc., 123 N.M. 220, 937 P.2d 979 (Ct. App. 1997) (stating party asserting work product bears burden of establishing that rule applies, and that burden may be met by submitting detailed affidavits sufficient to show that precise facts exist to support the immunity claim; and finding trial court did not abuse discretion in finding party failed to sustain burden and therefore had to produce documents); Knight v. Presbyterian Hospital Center, 98 N.M. 523, 650 P.2d 45 (Ct. App. 1982) (discussing “substantial need” and “undue hardship” under Rule 26, for purposes of overcoming a claim of work product immunity); and Sanchez v. Everyday Discount Drug, Inc., 1994 U.S. Dist. LEXIS 11208 (D.N.M. 1994) (rejecting claim of work product protection due to failure to adequately substantiate same, and stating that to substantiate a work product claim, the following should be provided for each communication claimed to be protected from discovery: (1) the place, approximate date, and manner of preparing the document, (2) the name of the person at whose request the document was prepared, (3) the name of each person or persons participating in preparation of the writing, (4) the name and position, if any, of each person to whom the contents of the writings have been communicated by copy, exhibition, reading or substantial summarization, (5) the names of the person or persons presently in custody of the original or true copy of the writing, and (6) a precise statement of the grounds for protection for each document).

The results of a polygraph test may, if the trustworthiness of the test meets legal standards, be used for impeachment purposes to attack the credibility of the defendant’s trial testimony, notwithstanding the contention of defendant’s counsel that a defendant should have control over the use of results of polygraph examinations under an attorney work product theory.  State v. Harrison, 90 N.M. 439, 564 P.2d 1321 (1977).

 

1.6:750            Waiver of Work-Product Immunity by Voluntary Act

In a breach of contract case, the buyer’s accidental disclosure of privileged documents to the seller effectively waived the asserted work product immunity, as well as the attorney-client privilege.  Hartman v. El Paso Natural Gas Co., 107 N.M. 679, 763 P.2d 1144 (1988).  It was determined that while inadvertent disclosure of documents may not waive their subsequent protected status in some jurisdictions, the New Mexico courts may find the opposite after considering the following factors: (1) the reasonableness of the precautions taken to prevent inadvertent disclosure in view of the extent of the document production; (2) the number of inadvertent disclosures; (3) the extent of the disclosure; (4) any delay and measures taken to rectify the disclosures; (5) whether the overriding interests of justice would be served by relieving a party of its error.

See also Citizens Progressive Alliance v. U.S. Bureau of Indian Affairs, 2002 U.S. Dist. LEXIS 25330 (D.N.M. 2002) (finding that inter-agency and intra-agency communications were work product and therefore were not required to be disclosed pursuant to Freedom of Information Act request, and further, that disclosure of the documents to counsel for one of the intervening Native American tribes did not waive work product protection inasmuch as disclosure was done so confidentially and with expectation that confidentiality of documents would be maintained).

1.6:760            Waiver of Work-Product Immunity by Use in Litigation

See State v. Turner, 97 N.M. 575, 642 P.2d 178 (Ct. App. 1981) (stating that while notes detailing substance of conversation between counsel and potential witness were work product, they had to be produced at trial after defendant used them in cross-examination).

 

1.6:770   Exception for Crime or Fraud