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Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.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

1.10 Rule 1.10 Imputed Disqualification: General Rule

1.10:100 Comparative Analysis of New Mexico Rule

“A.      Firm association.  While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rules 16-107 or Rule 16-109 NMRA of the Rules of Professional Conduct, unless the prohibition is based on a personal interest of the prohibited lawyer and does not present a significant risk of materially limiting the representation of the client by the remaining lawyers in the firm.

B.        Terminated associations.  When a lawyer has terminated an association with a firm, the firm is not prohibited from thereafter representing a person with interests materially adverse to those of a client represented by the formerly associated lawyer and not currently represented by the firm unless:

            (1)        the matter is the same or substantially related to that in which the formerly associated lawyer represented the client; and

            (2)        any lawyer remaining in the firm has information protected by Rule 16-106 NMRA and Paragraph C of Rule 16-109 NMRA of the Rules of Professional Conduct that is material to the matter.

C.        Subsequent firm associations; screening.  When a lawyer becomes associated with a firm, the firm may not knowingly represent a person in a matter in which that lawyer is disqualified under Paragraph A or B of Rule 16-109 NMRA of the Rules of Professional Conduct unless:

            (1)        the newly associated lawyer has no information protected by Rule 16-106 or 16-109 NMRA of the Rules of Professional Conduct that is material to the matter; or

            (2)        the newly associated lawyer did not have a substantial role in the matter, is timely screened from any participation in the matter and is apportioned no part of the fee therefrom, and written notice is promptly given to any affected former client to enable it to ascertain compliance with the provisions of this rule.

D.        Waiver of disqualification.  A disqualification prescribed by this rule may be waived by the affected client under the conditions stated in Rule 16-107 NMRA of the Rules of Professional Conduct.

E.         Other rules.  The disqualification of lawyers associated in a firm with former or current governmental lawyers is governed by Rule 16-111 NMRA of the Rules of Professional Conduct, and the disqualification of lawyers associated in a firm with former judges, arbitrators, mediators or other third-party neutrals is governed by Rule 16-112 NMRA of the Rules of Professional Conduct.”

 

1.10:101          Model Rule Comparison

NMR 16-110 differs from MR 1.10 in two material respects.  First, under NMR 16-110(B) & (C), a lawyer’s new firm generally can represent clients adverse to former clients of the lawyer at his or her previous firm.  The main exception is if the newly associated lawyer has confidential information that is material to the matter.  Otherwise, the lawyer’s new firm can undertake this representation if the newly associated lawyer did not have a substantial role in the matter, is timely screened from any participation in the matter, is apportioned no part of the fee therefrom, and written notice is promptly given to any affected former client to enable it to ascertain compliance with the provisions of this rule. 

In contrast, MR 1.10(a)(2) provides a lawyer’s new firm generally may represent clients adverse to former clients of the lawyer at his or her previous firm if the otherwise-disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom, written notice is promptly given to any affected former client to enable the former client to ascertain compliance (and this shall include a description of the screening procedures employed, a statement of compliance by the firm and the screened lawyer, and an agreement by the firm to respond promptly to any written inquiries or objections by the former client about screening procedures, and certifications of compliance with the Rules and with the screening procedures are provided to the former client at reasonable intervals upon the former client’s written request and upon termination of the screening procedures).

Second, NMR 16-110(E) contains language not found in MR 1.10 that the disqualification of lawyers associated in a firm with former judges, arbitrators, mediators, or other third-party neutrals is governed by NMR 16-112.

The 2008 Committee Commentary to NMR 16-110 does not include Comment 7 to MR 1.10 or part of Comments 9 and 10, concerning imputed disqualification and screening set forth in MR 1.10(a)(2).  Instead, the New Mexico Commentary points out requirements for screening procedures are stated in Paragraph K of NMR 16-100 Terminology.  Further, Subparagraph (2) of Paragraph C of NMRA 16-110 does not prohibit the screened lawyer from receiving a salary or partnership share established by prior independent agreement, but that lawyer may not receive compensation directly related to the matter in which the lawyer is disqualified.

1.10:102          Model Code Comparison

DR 5-105(D) applies to imputed conflict situations, and says “[i]f a lawyer is required to decline employment or to withdraw from employment under a Disciplinary Rule, no partner or associate, or any other lawyer affiliated with him or his firm may accept or continue such employment.”  See also EC 4-5, EC 5-16, and DR 5-105(A).

1.10:103          Definition of “Firm”

The primary authority in New Mexico concerning the definition of “firm” comes from Comment [1] to NMR 16-110, which mirrors the official ABA Comment to MR 1.10.  That Comment provides that a firm “denotes lawyers in a law partnership, professional corporation, sole proprietorship or other association authorized to practice law.”  Also, “firm” is defined as such in NMR 16-100(C).  The Comment also notes, however, that whether two or more lawyers will constitute a firm in other circumstances can depend on the particular facts.  As an example, “two practitioners who share office space and occasionally consult or assist each other ordinarily would not be regarded as constituting a firm.”  Presentation to the public as being associated in a firm may result in two lawyers being treated as such under this rule.  Additionally, the “terms of any formal agreement between associated lawyers” are relevant.  See Comment to NMR 16-100.

1.10:200 Imputed Disqualification Among Current Affiliated Lawyers

NMR 16-110(A) concerns imputed disqualification among currently affiliated lawyers on the basis of concurrent representations, and states that “[w]hile lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by” NMR 16-107 or 16-109.  An exception exists for “personal interest” conflicts that do not present a significant risk of materially limiting the representation.  This “rule of imputed disqualification,” according to Comment [2] to the rule, “gives effect to the principle of loyalty to the client as it applies to lawyers who practice in a law firm.”  Comment [2] specifically provides that “a firm of lawyers is essentially one lawyer for purposes of the rules governing loyalty to the client;” see also Comments [3] to [11].

NMR 16-110(B), in turn, governs imputed disqualification among currently affiliated lawyers on the basis of previous representations.  Subject to certain exceptions, a lawyer’s new firm generally may represent clients adverse to former clients of the lawyer at the previous firm.

A reported New Mexico case applying NMR 16-110 is State v. Almanza, 121 N.M. 300, 910 P.2d 934 (N.M. Ct. App. 1995).  In that case, the lawyer was appointed to represent the defendant under a contract with the public defender’s office.  Shortly before the trial was to begin, the lawyer discovered that his firm was prosecuting the defendant for traffic offenses in a different court.  The court noted that “[i]t would be intolerable for the same attorney to be concurrently defending a client in one criminal proceeding while prosecuting the client in another.”  121 N.M. at 300, 910 P.2d at 934.  Applying NMR 16-110, the court stated that “[o]rdinarily, if one lawyer in a firm is prohibited from representing a client in such a circumstance, then so are the other lawyers in the firm.”  121 N.M. at 301, 910 P.2d at 935.  Based on this analysis, the court overturned the conviction of the defendant.  See also State Bar Advisory Opinion 1986-3.

1.10:300 Removing Imputation by Screening

Screening can be described generally as the process by which a lawyer within a firm, who has a conflict regarding a specific representation that the firm is engaged in, is excluded from participating in the representation or obtaining knowledge of any materials related to that representation.  See NMR 16-100(K).  Unlike MR 1.10, NMR 16-110(C) permits screening in imputed conflict situations.  In addition, a screening device may be implemented by a law firm in connection with obtaining current or former client consent to a conflict of interest, as a measure to assure the current or former client that its confidential information will not be used to its disadvantage.

1.10:400 Disqualification of Firm After Disqualified Lawyer Departs

When lawyers move from one firm to another, NMR 16-110(B) & (C) will both apply.  Paragraph (B) pertains to the firm the lawyer has departed, while Paragraph (C) governs the conduct of the lawyer’s new firm.

1.10:500 Client Consent

NMR 16-110(D) allows a client affected by an imputed disqualification to waive the disqualification, under the conditions stated in NMR 16-107.