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Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.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

II. COUNSELOR

2.1 Rule 2.1 Advisor

2.1:100 Comparative Analysis of New Mexico Rule

“In representing a client, a lawyer shall exercise independent professional judgment and render candid advice.  In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client’s situation.”

2.1:101   Model Rule Comparison

NMR 16-201 is identical to MR 2.1.  Revised ABA commentary to MR 2.1 was adopted as part of the 2008 amendments to the NMR.

2.1:102   Model Code Comparison

 

2.1:200 Exercise of Independent Judgment

 

2.1:300 Non-Legal Factors in Giving Advice

 

2.2 Rule 2.2 Intermediary

This rule was withdrawn by New Mexico Supreme Court order effective November 3, 2008.

2.2:100 Comparative Analysis of New Mexico Rule

 

2.2:101   Model Rule Comparison

 

2.2:102   Model Code Comparison

 

2.2:200 Relationship of Intermediation to Joint Representation

 

2.2:300 Preconditions to Becoming an Intermediary

 

2.2:400 Communication During Intermediation

 

2.2:500 Consequences of a Failed Intermediation

 

2.3 Rule 2.3 Evaluation for Use by Third Persons

2.3:100 Comparative Analysis of New Mexico Rule

“A.      Limitations.  A lawyer may provide an evaluation of a matter affecting a client for the use of someone other than the client if the lawyer reasonably believes that making the evaluation is compatible with other aspects of the lawyer's relationship with the client.

B.        Client consent required.  When the lawyer knows or reasonably should know that the evaluation is likely to affect the client’s interests materially and adversely, the lawyer shall not provide the evaluation unless the client gives informed consent.

C.        Protected information.  Except as disclosure is authorized in connection with a report of an evaluation, information relating to the evaluation is otherwise protected by Rule 16-106 NMRA of the Rules of Professional Conduct.”

2.3:101   Model Rule Comparison

NMR 16-203 and Comment are identical to MR 2.3 and Comment, except the New Mexico rule adds headings to sections (A) and (B).

2.3:102   Model Code Comparison

There are no counterparts to NMR 16-203 in the Model Code of Professional Responsibility.

2.3:200 Undertaking an Evaluation for a Client

NMR 16-203 allows a lawyer to undertake an evaluation of a matter affecting the lawyer’s client materially and substantially for the use by a third party, provided two requirements are met: (1) the lawyer must reasonably believe that making the evaluation will not jeopardize other aspects of the lawyer’s relationship with the client; and (2) the client gives informed consent.  In addition, the lawyer must maintain the confidentiality of the information in the evaluation under the terms of NMR 16-106.

According to the Comment, examples of when an evaluation might be undertaken for the use by a third party are title opinions done for prospective buyers and lenders, and opinions concerning sales of securities.  The Comment also points out that simply because a lawyer is asked to undertake an evaluation for a third party does not necessarily mean that the lawyer should do so.  This is important because once a lawyer undertakes an evaluation for a third party, the lawyer may owe a duty to the third party.

2.3:300 Duty to Third Persons Who Rely on Lawyer's Opinion [see also 1.1:420]

See section 1.1:420 supra.

2.3:400 Confidentiality of an Evaluation

NMR 16-203 states that the client’s information gathered for an evaluation by a third party should be protected in accordance with NMR 16-106, and that no one but the third party should have access to the information contained in the evaluation. 

2.4 Rule 2.4 Lawyer Serving as a Third-Party Neutral

2.4:100 Comparative Analysis of New Mexico Rule

“A.      Definition of “third-party neutral.”  A lawyer serves as a third-party neutral when the lawyer assists two or more persons who are not clients of the lawyer to reach a resolution of a dispute or other matter that has arisen between them.  Service as a third-party neutral may include service as an arbitrator, a mediator or in such other capacity as will enable the lawyer to assist the parties to resolve the matter.

B.        Explanation of lawyer’s role.  A lawyer serving as a third-party neutral shall inform unrepresented parties that the lawyer is not representing them.  When the lawyer knows or reasonably should know that a party does not understand the lawyer’s role in the matter, the lawyer shall explain the difference between the lawyer’s role as a third-party neutral and a lawyer’s role as one who represents a client.”

2.4:101   Model Rule Comparison

Except for the bolded section headings in the New Mexico rule, NMR 16-204 is identical to MR 2.4.  This is a new rule in New Mexico, having been adopted in the 2008 amendments.

2.4:200 Definition of "Third-Party Neutral"

New Mexico has not adopted the new model rule.

2.4:300 Duty to Inform Parties of Nature of Lawyer's Role

New Mexico has not adopted the new model rule.