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Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.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

III. ADVOCATE

3.0 Rule 3.0 Prohibition Against Invidious Discrimination

“In the course of any judicial or quasi-judicial proceeding before a tribunal, a lawyer shall refrain from intentionally manifesting, by words or conduct, bias or prejudice based on race, gender, religion, national origin, disability, age, or sexual orientation against the judge, court personnel, parties, witnesses, counsel or others.  This rule does not preclude legitimate advocacy when race, gender, religion, national origin, disability, age or sexual orientation is material to the issues in the proceeding.”

3.0:101            Model Rule Comparison

There is no direct counterpart to NMR 16-300 in the Model Rules.

3.1 Rule 3.1 Meritorious Claims and Contentions

3.1:100 Comparative Analysis of New Mexico Rule

“A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law.  A lawyer for the defendant in a criminal proceeding, or the respondent in a proceeding that could result in incarceration, may nevertheless so defend the proceeding as to require that every element of the case be established.”

3.1:101   Model Rule Comparison

NMR 16-301 mirrors MR 3.1.

3.1:102   Model Code Comparison

 

3.1:200 Non-Meritorious Assertions in Litigation

An attorney’s acts and omissions in litigation will reflect adversely on the client, if the attorney’s course of action is the result of a deliberate strategy.  Mann v. Fernandez, 615 F. Supp.2d 1277 (D.N.M. 2009).  Thus, when a course of conduct in litigation results from mere inattention by counsel and is not a deliberate strategy, a client is generally not bound by his or her attorney’s actions; if the fault lies with the attorneys, the impact of any sanction for failure to comply with pretrial deadlines should fall on them.  Id.

In Guest v. Berardinelli, 145 N.M. 186, 2008-NMCA-144, 195 P.3d 353, the Court of Appeals affirmed a district court decision granting a motion for summary judgment dismissing a malicious abuse of process action.  The action was brought by appellant, the defense counsel for an insurance company, against the attorneys who represented the plaintiffs in an insurance dispute as well as an action against her for, inter alia, malicious abuse of process during the dispute.  The court analyzed whether the appellant had properly shown the second element of a malicious abuse of process action requiring proof of “an act by the defendant in the use of process other than such as would be proper in the regular prosecution of the claim.”  The court held that despite the fact that the appellees were not able to overcome summary judgment, they had probable cause and established a prima facie claim at the time of filing the complaint.  The court established a high standard for malicious abuse of process plaintiffs, stating that “[o]nly those actions that any reasonable attorney would agree are totally and completely without merit may form the basis for a malicious prosecution of suit.”  Under NMR 16-301, a lawyer must not bring or defend a proceeding or assert or controvert an issue unless there is a basis for doing so that is not frivolous.

3.1:300 Judicial Sanctions for Abusive Litigation Practice (Especially Rule 11)

 

3.1:400 Civil Liability for Abusive Litigation Practice [see 1.1:520]

 

3.1:500 Complying with Law and Tribunal Rulings

 

3.2 Rule 3.2 Expediting Litigation

3.2:100 Comparative Analysis of New Mexico Rule

“A lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client.”

3.2:101   Model Rule Comparison

NMR 16-302 is identical to MR 3.2.

3.2:102   Model Code Comparison

Most of the reported decisions concerning NMR 16-301 relate to a lawyer’s duty to communicate with clients, which is the subject of NMR 16-104.  Thus, as held in In re Carracso, 106 N.M. 294, 742 P.2d 506 (1987), a lawyer violates NMR 16-302 as well as other rules when he fails to take action for the client and fails to obtain any necessary additional information from the client; it is not the client’s responsibility to initiate all inquiries to the attorney to ensure that appropriate steps are being taken.

3.2:200 Dilatory Tactics

 

3.2:300 Judicial Sanctions for Dilatory Tactics

 

3.3 Rule 3.3 Candor Toward the Tribunal

3.3:100 Comparative Analysis of New Mexico Rule

“A.      Duties.  A lawyer shall not knowingly:

            (1)        make a false statement of material fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer;

            (2)        fail to disclose a material fact to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or

            (3)        offer evidence that the lawyer knows to be false; if a lawyer, the lawyer’s client or a witness called by the lawyer has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal; a lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false.

B.        Criminal conduct of client.  A lawyer who represents a client in an adjudicative proceeding and who knows that a person intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal.

C.        Compliance with rule.  The duties stated in Paragraphs A and B continue to the conclusion of the proceeding and apply even if compliance requires disclosure of information otherwise protected by Rule 16-106 NMRA of the Rules of Professional Conduct.

D.        Ex parte proceedings; lawyer's duty.  In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer that will enable the tribunal to make an informed decision, whether or not the facts are adverse.

E.         Limited entry of appearance; lawyer's duty.  In all proceedings where a lawyer appears for a client in a limited manner, that lawyer shall disclose to the tribunal the scope of representation.”

3.3:101            Model Rule Comparison

NMR 16-303 and its accompanying 2008 Committee Commentary are very similar to MR 3.3 and comment, with the primary exception being the addition of Paragraph (E) by New Mexico in 2001.  As stated in the 2008 Committee Commentary, the purpose of Paragraph (E) of NMR 16-303 is to permit lawyers to appear for clients in a limited manner and to alert the court and opposing counsel of that limited role.  Also, in New Mexico courts, attorneys and self-represented litigants are held to the same standards.  New Mexico courts are lenient with both attorneys and self-represented litigants when deemed appropriate so that cases may be decided on their merits.  Attorneys may give technical assistance and, when not prohibited by the rules of the tribunal, may prepare, without attribution, papers for filing by a self-represented litigant without violating the duty of candor.  Even though an attorney’s role may be limited to drafting a single document, the attorney is, however, bound by all of the rules that govern attorney conduct, including, but not limited to, NMR 16-303(A)(1) (stating that an attorney shall not knowingly make a false statement of law or fact to a tribunal.  The New Mexico Comment notes a caveat that current federal practice prohibits the filing of anonymously drafted documents, citing Duran v. Carris, 238 F.3d 1268, 1271-73 (10th Cir. 2001)

Comments [1] to [2] to NMR 16-303 set forth general principles, Comment [3] relates to representations by a lawyer, Comment [4] concerns legal arguments, Comments [5] to [9] discuss the offering of evidence, Comments [10] to [12] deal with remedial measures, Comment [12] addresses preserving the integrity of the adjudicative process, Comment [13] concerns the duration of a lawyer’s obligation, Comment [14] discusses ex parte proceedings, Comment [15] is unique and relates to limited entry of appearance, and Comment [16] concerns withdrawal.

3.3:102            Model Code Comparison

NMR 16-303(A)(1) is essentially the same as DR 7-102(A)(5)See also EC 7-4, EC 7-32, and EC 8.  DR 7-102(A)(3), which states “a lawyer shall not ... knowingly fail to disclose that which he is required by law to reveal,” would include the requirement in NMR 16-303(A)(2)NMR 16-303(A)(3) is substantially identical to DR 7-106(B)(1).

An analog to NMR 16-303(A)(3) is DR 7-102(A)(4), which says a lawyer shall not “knowingly use” perjured testimony or false evidence.  NMR 16-303(A)(3) resolves a potential ambiguity in the Model Code concerning the action required of a lawyer who discovers that the lawyer has offered perjured testimony or false evidence.  DR 7-102(B)(1) provides that a lawyer “who receives information clearly establishing that ... [h]is client has ... perpetrated a fraud upon ... a tribunal shall [if the client does not rectify the situation] ... reveal the fraud to the ... tribunal....”

3.3:200 False Statements to a Tribunal

As officers of the court, lawyers are obligated to be truthful to the court.  Woodson v. Phillips Petroleum Co. 102 N.M. 333, 695 P.2d 483 (1985).  Public defenders are of course held to these standards.  State v. Martínez, 97 N.M. 540, 641 P.2d 1087 (Ct.App. 1982).

Section 36-2-10(D) NMSA 1978 (1991 Repl. Pamp.) states that it is the duty of lawyers in New Mexico “never to seek to mislead the judges by any artifice or false statement of fact or law.”  Moreover, attorneys in New Mexico are guided by A Creed of Professionalism of the New Mexico Bench and Bar, which says “I will be respectful toward and candid with the court,” and “my word is my bond” when dealing with the courts.

Where a lawyer for plaintiff is seeking default or summary judgment, a pro se defendant files an affidavit that the plaintiff’s lawyer believes controverts plaintiff’s allegations and precludes summary judgment, and the judge nevertheless signs the judgment, plaintiff’s attorney has no duty to call the situation to the court’s attention.  State Bar Advisory Opinion 1987-12.

According to State Bar Advisory Opinion 1990-2, a lawyer is not required to notify the court that no action has been taken in a criminal action against his client, and it may be malpractice if he does.  An exception exists if the client desires a speedy resolution, but there is no general duty to the court or opposing party to give notice. 

In Campos v. Brooksbank, 120 F. Supp.2d 1271 (D.N.M. 2000), the court determined that a licensed attorney, although authorized by regulations to file affidavit and notice of deposition, was not authorized to mislead court or abuse discovery process, and thus was not exempt from claim that his filing of false affidavit and his seeking of deposition in order to intimidate violated New Mexico’s Unfair Practices Act (UPA).

An attorney’s intentional failure to report to the bankruptcy court that he received proceeds from a sale of assets of his client’s bankruptcy estate, amounted to violation of the rules of professional conduct requiring candor towards the tribunal, and prohibiting conduct prejudicial to the administration of justice.   Matter of Archuleta, 122 N.M. 52, 920 P.2d 517 (1996).

Similarly, an attorney’s failure to act with reasonable diligence to make the bankruptcy court aware of a pertinent fact violated NMR 16-103Matter of Bristol, 2006-NMSC-041, 140 N.M. 317, 142 P.3d 905.  However, because the attorney acted negligently and not intentionally, the attorney’s behavior was not in violation of NMR 16-303.  Suspension from the practice of law is warranted ordinarily only when an attorney acts intentionally with a dishonest, deceitful, or fraudulent motive.  A private reprimand is only appropriate when an attorney acts negligent rather than intentionally, and the attorney’s actions cause little or no harm to the client.  Where, as in Bristol, the conduct is negligent and without a culpable mental state, but nevertheless causes significant harm, the conduct may warrant public reprimand.

In Matter of Lindsey, 810 P.2d 1237, 112 N.M (1991), the prosecuting attorney misrepresented to defense counsel and the magistrate judge that the police officer present at court was the arresting officer, when in fact the arresting officer had moved out of state and would not return for the case.  This abuse of a position of public trust, as well as the inducement of the other law enforcement officer to perpetrate a fraud upon the court and the accused, warranted a six month suspension and a subsequent 12 month period of probation subject to various terms and conditions.  The greater sanction of disbarment was rejected in light of steps taken to rectify the consequences of the misconduct, the lack of a prior record of professional misconduct, the relative inexperience of the attorney, and the potential for rehabilitation.

Another case discussing NMR 16-303 is In re Neal, 134 N.M. 594, 81 P.3d 47 (2003).  There, an attorney, while suspended for earlier violations, appeared at a pretrial hearing and stated that he was not entering an appearance but failed to tell the prosecutor or judge that he was suspended and could not represent the defendant.  The court reasoned that Aby telling the court that he was not entering a appearance, he falsely represented that he was a licensed attorney who could enter an appearance.”  This false statement of material fact to a tribunal was a violation of Rule 16-303(A).  Given a history of various violations, the hearing committee recommended that the attorney be disbarred and precluded from working for any other attorney until his reinstatement.  The supreme court declined to restrict the attorney’s law-related employment but ordered him disbarred from the practice of law for a minimum of three years with strict requirements for reinstatement.  The court also assessed costs of the proceedings against the attorney, set out criteria for ordering additional sanctions and restrictions, and ordered that its opinion be furnished to the Albuquerque Journal and Albuquerque Tribune newspapers without comment.

In In re Righter, 126 N.M. 730, 975 P.2d 343 (1999), an attorney failed to appear at a scheduling conference before a federal magistrate judge and offered no excuse for not appearing. After several weeks of unsuccessful attempts to communicate, the judge issued an order to show cause why the case should not be dismissed for failure to prosecute, but the attorney again failed to appear.  On that same date, however, the attorney filed an answer to the show-cause order claiming he had not received notice of the scheduling conference.  Moreover, a copy of that same pleading had been mailed to opposing counsel nearly a week before the date of show-cause hearing.  At a subsequent hearing, despite being confronted with factual evidence to the contrary, the attorney continued to insist that the reason for his failure to appear was that he received no notice.  The Supreme Court found that the attorney violated NMR 16-303(A) by knowingly making a false statement of material fact to a tribunal.  The attorney was indefinitely suspended from the practice of law for a minimum of three years with strict conditions for any applications for reinstatement.

The attorney in In re Richards, 123 N.M. 579, 943 P.2d 1032 (1997), in his appeal from the district court, argued that opposing counsel’s motion for attorney’s fees and sanctions should not have been presented because he had not received notice and was therefore deprived of his right to procedural due process.  The Court of Appeals found that the attorney had objected to the motion based on his erroneous claim that opposing counsel represented adverse interests of two parties but had failed to make a timely objection based on notice.  In support of his motion for rehearing, the attorney argued that he was interrupted by the trial court before he could fully articulate his second basis for objection the lack of proper notice.  He included a portion of dialogue excerpted from the transcript of the proceedings.  In denying the motion, the Court of Appeals found that, in an attempt to create an appearance of facts favorable to his own position, the attorney omitted portions of the discussion and failed to indicate those omissions.  The Supreme Court found that “respondent engaged in a form of advocacy that was deceitful and dishonest” both by omitting material language and by making an affirmative statement that the trial court understood both bases for his objection.  The Supreme Court adopted the recommendation of the disciplinary board and found that the attorney violated NMR 16-303(A), by knowingly making a false statement of fact to the Court of Appeals. He was publicly censured for violation of his duty of candor to the court and was assessed all costs of the disciplinary proceedings.

In In re Archuleta, 122 N.M. 52, 920 P.2d 517 (1996), a lawyer, who was also a certified public accountant, had prepared income tax returns for a married couple for several years.  When the wife sought his assistance in a criminal matter, he recommended that the couple file bankruptcy to protect their assets from possible court-ordered restitution.  Just prior to filing a Chapter 7 bankruptcy for the couple, the attorney received $3,000.71 from the wife’s sister as payment for his attorney’s fees. The attorney admitted that he knew of the requirement to report the fees to the bankruptcy court and/or trustee, and he testified that he intentionally failed to do so.  In addition, the attorney was owed money by the couple, and he intentionally failed to report his status as creditor and failed to list this pre-petition debt on the bankruptcy schedules.  Finally, the lawyer received payment of $6,000 to cover both past and future legal fees.  He knew that the funds were generated from the sale of property in the bankruptcy estate and were therefore an asset of the estate, but he failed to report his receipt of the money.  The Supreme Court found that the attorney, among other things, violated NMR 16-303 by making knowing and purposeful false statements of material fact to the bankruptcy court, and the court adopted the recommendations of the disciplinary board.  The attorney was suspended from the practice of law for one year and ordered to pay all costs of the disciplinary proceedings. The court also ordered that its opinion be published in the Bar Bulletin and the New Mexico Reports.

In Cordova v. Taos Ski Valley, Inc., 121 N.M. 258, 910 P.2d 334 (Ct. App. 1996), in an appeal of a decision requiring an employer to pay attorney’s fees in a worker’s compensation case, the court found that the attorney’s failure to submit a supporting affidavit along with his petition for fees is not reversible error.  The court determined that as the worker’s counsel and as an officer of the court, the attorney was already under an obligation to be truthful under NMR 16-303.  Finding no abuse of discretion, the court affirmed the award of attorney’s fees.

The lawyer in In re Klein, 119 N.M. 460, 891 P.2d 1214 (1995), already on probation for violations of the Rules of Professional Conduct, was charged with additional violations by the disciplinary board and ordered by the Supreme Court to show cause why his probation should not be revoked and further discipline imposed.  In a domestic relations case in which the attorney represented his brother, the Second Judicial District judge entered an order establishing interim guardianship and custody of the parties’ minor child.  The attorney, however, petitioned the Seventh Judicial District Court for appointment of himself as a guardian for the child without informing the court about the matter pending in the Second District and that judge’s standing orders.  He also failed to file a mandatory affidavit or give notice to the guardian ad litem.  The disciplinary complaint alleged that the attorney misled the judge in violation of NMR 16-303 and 16-304, and the attorney agreed not to contest the charges.  The Supreme Court ordered suspension from the practice of law for six months, with the suspension deferred, and ordered probation for 12 months on strict terms and conditions.

In In re Allred, 106 N.M. 227, 741 P.2d 830 (1987), after having been advised by his client of an error in the amount of damages pled in a complaint, an attorney failed to file an amended complaint.  He prepared and had entered a judgment for an amount less than the client’s actual amount of damages.  The disciplinary board found that he violated NMR 16-303 by making a false statement of material fact to a tribunal.  The Supreme Court adopted the findings and recommendations of the disciplinary board and ordered the attorney suspended from the practice of law for 60 days, assessed costs against him, set strict conditions for his readmission, and ordered that its opinion be published in the Bar Bulletin and the New Mexico Reports.

In In re Quintana, 104 N.M. 511, 724 P.2d 220 (1986), after his motion for a rehearing was denied by the Court of Appeals, an attorney failed to file a petition for certiorari until more than two weeks past the mandatory filing date.  In his writ for extraordinary equitable relief, he claimed that, due to the inefficiency of the Postal Service, he did not receive notice of the order denying his motion until one day prior to the deadline.  The attorney attached a copy of that order to his writ, but a stamp on the document showed it was received by his office roughly two weeks before the filing date.  The attorney’s misrepresentation violated NMR 16-303(A), whereby he knowingly made a false statement of material fact to a tribunal. (The opinion cites to the pre-1987 Rules, 1-102(A)(4), whereby a lawyer shall not engage in conduct involving dishonesty, fraud, deceit or misrepresentation, and 7-102(A)(5), whereby in representing a client, a lawyer shall not knowingly make a false statement of law or fact.)  The Supreme Court noted a long history of sixteen violations of nine of the Code of Professional Responsibility Rules along with a previous suspension.  The court adopted the recommendations of the disciplinary board and ordered the attorney suspended indefinitely from the practice of law, with strict conditions for application for readmission. 

The attorney in In re Chakeres, 101 N.M. 684, 687 P.2d 741 (1984), in a brief to the Court of Appeals, stated that trial testimony of causality had been “uncontroverted,” “undisputed” and “uncontradicted.”  At his trial before a hearing committee, however, he acknowledged that the testimony of one of the two witnesses had been inconsistent and that his statements in the brief were inaccurate.  The attorney admitted that he had not reviewed the testimony prior to writing his brief, and the committee found that the attorney had “knowingly and intentionally made the misstatements.”  The disciplinary board affirmed the findings and, noting similar types of overstatements in the attorney’s brief to the board, recommended a 30-day suspension.  The Supreme Court adopted the board’s factual findings and agreed that the attorney violated NMR 16-303(A)(1) by knowingly making false statements of material fact to the tribunal.  The court cited to the pre-1987 Rules, 1-102(A)(4), whereby a lawyer shall not engage in conduct involving dishonesty, fraud, deceit or misrepresentation.  The court declined to order the 30-day suspension but did impose a public censure and $1000 fine as well as costs on the attorney.  The court also ordered that its opinion be published in the News and Views and the New Mexico Reports.

3.3:300 Disclosure to Avoid Assisting Client Crime or Fraud

A lawyer in a client’s probation revocation hearing did not have a duty to volunteer to the court that the client had pled guilty to a charge of driving while intoxicated, and does not have a duty to investigate whether the client was in fact driving the vehicle.  State Bar Advisory Opinion 1990-2.  See also State Bar Advisory Opinion 1985-6.

3.3:310            Prohibition on Counseling or Assisting Fraud on a Tribunal [see also 1.6:350]

An attorney violated the professional conduct rules governing dishonest conduct and conduct reflecting adversely on fitness to practice law, when he counseled his client to engage in overt misrepresentation in order to increase the settlement value of a potential claim.  Matter of Elmore, 123 N.M. 79, 934 P.2d 273 (1997).

3.3:400 Disclosing Adverse Legal Authority

The Comment to NMR 16-303 expands on subsection (A)(3) of the rule by stating that a lawyer is not required to make a disinterested exposition of the law, but must recognize the existence of pertinent legal authorities.  The underlying concept is that legal argument is a discussion seeking to determine the legal premises properly applicable to the case.

In Lozoya v. Sanchez, 2003-NMSC-009, 133 N.M. 579, 66 P.3d 948 (2003), the plaintiffs’ appellate brief in a negligence action related to an automobile accident, cited to a California case and urged the Supreme Court to adopt that case’s reasoning.  Plaintiffs failed to mention, however, that the case had been expressly overruled by the California Supreme Court, and, in a footnote, the New Mexico Supreme Court cautioned counsel for the plaintiffs that “the knowing failure to mention that authority would violate NMR 16-303(A)(3).”

Furthermore, in State v. Alingog, 117 N.M. 756, 877 P.2d 562 (1994), the Court held that a failure on the part of the defense counsel to call the judge’s attention to law that would favor the state if this were to be deemed a single, as opposed to a successive, prosecution, did not breach the defense counsel’s professional duty of candor.

Counsel should be aware of the professional responsibility to disclose controlling legal authority, even if contrary to one’s position.  Sanchez v. Homestake Min. Co., 102 N.M. 473, 697 P.2d 156 (Ct. App. 1985).

In Matter of Archuleta, 122 N.M. 52, 920 P.2d 517 (1996), an attorney’s failure to report to the bankruptcy court that he was a creditor of the client, amounted to violation of rules requiring candor toward the tribunal, prohibiting conduct prejudicial to the administration of justice, and conflicts of interest.

3.3:500 Offering False Evidence

New Mexico case law has found a violation of NMR 16-303 in several cases, including Matter of Gabell, 115 N.M. 737, 858 P.2d 404 (1993).  In Gabell, the Court found disbarment warranted where the attorney intentionally lied under oath and manufactured documents in order to gain an advantage in litigation.  Similarly, in Matter of Chakeres, 101 N.M. 684, 687 P.2d 741 (1984), an attorney was publicly censured and fined $1,000 for knowingly making false, misleading and inaccurate statements in a brief to the court of appeals.   Public censure was also warranted in Matter of Richards, 123 N.M. 52, 920 P.2d 517 (1997), where the attorney knowingly made false statements of material fact in a brief with the intention of deceiving the court.  In Matter of Archuleta, 122 N.M. 52, 920 P.2d 517 (1996), an attorney was sanctioned with a one year suspension when he made false statements of material fact to a bankruptcy court.  Those actions included the representation of a client in bankruptcy when owed money by the client, deposit of monies in his operating account instead of his trust account, failure to produce required records for his trust account, and misrepresentations to the Internal Revenue Service when acting in his capacity as a CPA.

3.3:510            False Evidence in Civil Proceedings

In Matter of Gabbell, 115 N.M. 737, 858 P.2d 404 (1993), an attorney hired by another lawyer to assist in a class action lawsuit was paid over $173,000, but he later filed suit claiming that a partnership or joint venture had existed between them and that he was owed a formal accounting and a division of the profits.  The district court found that the attorney fraudulently manufactured documents for use in the litigation and “lied under oath about facts of the underlying controversy and matters bearing on his credibility.”  The Supreme Court agreed that, among other things, the attorney had violated NMR 16-303(A) by offering evidence that he knew to be false.  The Court adopted the recommendation of the disciplinary board, and the attorney was disbarred and assessed all costs of the disciplinary proceedings. The court also ordered that its opinion be published in the Bar Bulletin and the New Mexico Reports.  Thus, when an attorney intentionally lies under oath and manufactures documents designed to achieve an advantage in litigation, he demonstrates a complete lack of fitness to practice law.

In Weststar Mortgage Corp. v. Jackson, 2003-NMSC-002, 133 N.M. 114, 61 P. 3d 823, the Supreme Court reminded an attorney of his duty of candor to the court under NMR 16-303, after noting that his arguments contained misattributions inconsistent with witness testimony.

In another case, an attorney was publically censured and fined $1,000 for knowingly making false, misleading and inaccurate statements in a brief to the Court of Appeals, in violation of former Rule 7-102.  Matter of Chakeres, 101 N.M. 684, 687 P.2d 741 (1984)See also Matter of Richards, 123 N.M. 579, 943 P.2d 1032 (1997) (attorney knowingly making a false statement of material fact in a brief filed in the Court of Appeals for the purpose of deceiving the court, warranted public censure); and  Matter of Archuleta, 122 N.M. 52, 920 P.2d 517 (1999) (involving false statements of material fact to a bankruptcy court). 

3.3:520            False Evidence in Criminal Proceedings

In In re Lindsey, 112 N.M. 17, 810 P.2d 1237 (1991), on the morning of a criminal trial (DWI), the prosecuting attorney knew that the arresting officer had moved out of state and would not be appearing as a witness.  Just before trial, he contacted the local police claiming to need help with a possibly violent defendant.  When an officer arrived in the courtroom before the trial, the attorney instructed him to remove his name tag, began calling him by the name of the absent witness, and indicated to the judge that his witness had arrived.  He next informed the defense counsel that he was too ill to try the case and suggested a plea agreement.  Despite the defense counsel’s suspicions, the plea offer was accepted and the judge accepted the terms.  Defense counsel later learned of the deception and moved to withdraw his client’s plea.  The magistrate judge granted the motion and the case was dismissed with prejudice.  The attorney reported his own conduct, admitted all factual allegations, and admitted to committing some but not all of the rule violations.  The hearing committee found that the attorney violated, among others, NMR 16-303(A) by failing to disclose a material fact to a tribunal.  The disciplinary panel recommended an 18-month suspension deferred upon specific terms of probation.  The Supreme Court ordered a 6-month suspension followed by 12 months of probation under the terms recommended by the disciplinary panel. 

For guidelines for conduct of trial by a prosecutor, see State v. Diaz, 100 N.M. 210, 668 P.2d 326 (Ct. App. 1983)

3.3:530            Offering a Witness an Improper Inducement

An attempt to influence testimony by an offer of money is an ethical violation which raises a substantial question as to the lawyer’s honesty, trustworthiness or fitness as a lawyer.  State Bar Advisory Opinion 1998-8.

In In re C’de Baca, 108 N.M. 622, 776 P.2d 551 (1989), an attorney filed a Chapter 13 bankruptcy on his own behalf and then failed to attend a required creditors’ meeting or to seek a continuance.  During a deposition, the attorney knowingly gave false statements under oath regarding the reasons why he failed to attend the meeting.  The judge dismissed the bankruptcy proceedings for “willful failure of the Debtor to abide by Order of the Court or to appear before the Court in proper prosecution of the case.”  In response to the disciplinary board’s charges, the attorney admitted to the Supreme Court that he had violated NMR 16-303(A) by knowingly offering into evidence his own sworn statements that he knew to be false.  The Court agreed with the disciplinary board’s recommendation that the attorney be suspended from the practice of law, but reduced the time of suspension from 1 year to 6 months with automatic reinstatement.

Misconduct, including offering payments to witnesses in a criminal case in exchange for sworn statement of nonprosecution against attorney’s client, warrants public censure and payment of costs.  Matter of Steere, 796 P.2d 1101, 110 N.M. 405 (1990).

3.3:540            Interviewing and Preparing Witness

An attorney is entitled to meet with and prepare his or her own witnesses for a hearing.  Chavarria v. Basin Moving & Storage, 127 N.M. 67,  976 P.2d 1019 (Ct. App. 1999).

3.3:600 Remedial Measures Necessary to Correct False Evidence

If a lawyer knows his client has, in the course of the representation, perpetrated a fraud on the tribunal, the lawyer must promptly call on the client to rectify the fraud and if the client refuses to rectify, the lawyer should make appropriate disclosures.  State Bar Advisory Opinion 1986-10. 

3.3:610   Duty to Reveal Fraud to the Tribunal

 

3.3:700 Discretion to Withhold Evidence Believed to Be False

The Comment to NMR 16-303 states that a lawyer may refuse to offer testimony or other evidence which is believed to be untrustworthy, but an exception may exist in criminal cases.

3.3:800 Duty of Disclosure in Ex Parte Proceedings

The Comment to NMR 16-303 states that in an ex parte proceeding, “the lawyer for the represented party has the correlative duty to make disclosures of material facts known to the lawyer and that the lawyer reasonably believes are necessary to make an informed decision.”

3.4 Rule 3.4 Fairness to Opposing Party and Counsel

3.4:100 Comparative Analysis of New Mexico Rule

“A lawyer shall not:

A.        unlawfully obstruct another party's access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value.  A lawyer shall not counsel or assist another person to do any such act;

B.        falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law;

C.        knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists;

D.        in pretrial procedures, make a frivolous discovery request or fail to make reasonably diligent effort to comply with a legally proper discovery request by an opposing party;

E.         in trial, allude to any matter that the lawyer does not reasonably believe is relevant, or that will not be supported by admissible evidence, assert personal knowledge of facts in issue except when testifying as a witness or state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant or the guilt or innocence of an accused; or

F.         request a person other than a client to refrain from voluntarily giving relevant information to another party unless:

            (1)        the person is a relative or an employee or other agent of a client; and

            (2)        the lawyer reasonably believes that the person's interest will not be adversely affected by refraining from giving such information.”

3.4:101   Model Rule Comparison

The New Mexico rule differs from MR 3.4 only in that according to NMR 16-304(E), a lawyer in trial shall not state a personal opinion that is “not supported by the evidence.”

3.4:102            Model Code Comparison

DR 7-109(A) of the Model Code says a lawyer “shall not suppress any evidence that he or his client has a legal obligation to reveal,” and is largely like NMR 16-304(A).  Other parallels to NMR 16-304(A) in the Code are DR 7-109(B), which provides that a lawyer “shall not advise or cause a person to secrete himself ... for the purpose of making him unavailable as a witness. . . ,” and DR 7-106(C)(7), under which a lawyer shall not “[i]ntentionally or habitually violate any established rule of procedure or of evidence.”  See also EC 7-6, EC 7-27, DR 1-102(A)(4) &(5), and DR 7-106(C)(7).

NMR 16-304(B) is much like DR 7-102(A)(6)DR 7-109(C) provides that a lawyer “shall not pay, offer to pay, or acquiesce in the payment of compensation to a witness contingent upon the content of his testimony or the outcome of the case,” except the lawyer may cover certain expenses.  EC 7-28 states that witnesses “should always testify truthfully and should be free from any financial inducements that might tempt them to do otherwise.”  See also EC 7-6, EC 7-28, and DR 1-102(A)(4), (5) & (6).

NMR 16-303(C) parallels DR 7-106(A), which says “A lawyer shall not disregard ... a standing rule of a tribunal or a ruling of a tribunal made in the course of a proceeding, but he may take appropriate steps in good faith to test the validity of such rule or ruling.”  See also EC 7-22, EC 7-25, EC 7-38, DR 1-102(A)(5), and DR 7-106(C)(5) & (7).

While NMR 16-303(D) has no direct counterpart in the Model Code, see DR 1-102(A)(5), DR 7-106(A), and DR 7-106(C)(7).

NMR 16-303(E) largely incorporates DR 7-106(C)(1), (2), (3) and (4).  NMR 16-303(E) does not include a provision similar to DR 7-106(C)(5), which says a lawyer shall not “fail to comply with known local customs of courtesy or practice.”  See also EC 7-24, EC 7-25, and DR 1-102(A)(5).

Finally, the analog to NMR 16-303(F) is DR 7-104(A)(2), which provides that a lawyer shall not “give advice to a person who is not represented ... other than the advice to secure counsel, if the interests of such person are or have a reasonable possibility of being in conflict with the interests of his client.”  See also EC 7-27, DR 1-102(A)(5), and DR 7-109(B).

3.4:103            Overview

When dealing with an attorney, another person, whether an attorney or a lay person, has the right to expect that the attorney will be honest and straightforward.  Matter of Moore, 129 N.M. 217, 4 P.3d 664 (2000).  Also, lawyers are officers of the court, and are always under an obligation to be truthful.  Woodson v. Phillips Petroleum Co., 102 N.M. 333. 695 P.2d 483 (1985).

Attorneys in New Mexico are guided by A Creed of Professionalism of the New Mexico Bench and Bar, which provides that when dealing with opposing parties and their counsel, “my word is my bond,” and that with respect to opposing parties and their counsel, “I will be courteous and civil, both in oral and in written communications; [and] I will communicate with opposing counsel in an effort to avoid litigation or to resolve litigation; [and] I will refrain from filing frivolous motions.”

Numerous New Mexico cases pertinent to NMR 16-304 are discussed in the context of NMR 16-303, above.

 

3.4:200 Unlawful Destruction and Concealment of Evidence

A lawyer’s duties are no different from the duties of any other citizen, where the lawyer, in representing a civil claim for a client, learns the adverse party in the case may have committed crimes.  Any citizen may have a duty to report the crime to the appropriate authorities.  A lawyer should be careful about signing a confidentiality agreement in connection with a settlement containing a provision requiring the lawyer to not make report to the appropriate authorities, and where the law requires notification.  State Bar Advisory Opinion 1989-1.

The attorney in In re Klein, 119 N.M. 460, 891 P.2d 1214 (1995), already on probation for violations of the Rules of Professional Conduct, was charged with additional violations by the disciplinary board and ordered by the Supreme Court to show cause why his probation should not be revoked and further discipline imposed.  In a domestic relations case in which the attorney represented his brother, the Second Judicial District judge entered an order establishing interim guardianship and custody of the parties’ minor child.  The attorney, however, petitioned the Seventh Judicial District Court for appointment of himself as a guardian for the child without informing the court about the matter pending in the Second District case and that judge’s standing orders.  He also failed to file a mandatory affidavit or give notice to the guardian ad litem.  The disciplinary complaint alleged that the attorney misled the judge in violation of Rules 16-303 and 16-304, and the attorney agreed not to contest the charges.  The Supreme Court ordered suspension from the practice of law for six months, with the suspension deferred, and ordered probation for 12 months under strict terms and conditions.

In In re Lindsey, 112 .N.M. 17, 810 P.2d 1237 (1991), on the morning of a criminal trial, the prosecuting attorney knew that the arresting officer had moved out of state and would not be appearing as a witness.  Just before trial, he contacted the local police claiming to need help with a possibly violent defendant.  When an officer arrived in the courtroom before the trial, the attorney instructed him to remove his name tag, began calling him by the name of the absent witness, and indicated to the judge that his witness had arrived.  He next informed the defense counsel that he was too ill to try the case and suggested a plea agreement.  Despite the defense counsel’s suspicions, the plea offer was accepted and the judge accepted the terms.  Defense counsel later learned of the deception and moved to withdraw his client’s plea.  The magistrate judge granted the motion and the case was dismissed with prejudice.  The attorney reported his own conduct, admitted all factual allegations, and admitted to committing some but not all of the rule violations.  The hearing committee found that the attorney violated, among others, NMR 16-304(A), 304(C), and 304(F)(1).  The Supreme Court ordered a 6-month suspension followed by 12 months of probation under the terms recommended by the disciplinary panel.

Courts in New Mexico have emphasized that lawyers are under an obligation to be truthful to the court.  Woodson v. Phillips Petroleum Co. 102 N.M. 333, 695 P.2d 483 (1985); and State v. Martínez, 97 N.M. 540, 641 P.2d 1087 (Ct.App. 1982)See also NMR 16-304 Comments [1] to [2].

3.4:210   Physical Evidence of Client Crime

3.4:300 Falsifying Evidence

The court in Matter of Chakeres, 101 N.M. 684, 687 P.2d 741 (1984), publicly censured and fined an attorney in the amount of $1,000 for knowingly making false, misleading and inaccurate statements in a brief to the Court of Appeals.  Also, in Matter of Righter, 1999-NMSC-009, 126 N.M. 730, 975 P.2d 343 (1999), the court upheld an indefinite suspension for an attorney who, among other things, made untrue statements to the tribunal.

In Matter of Gabell, 115 N.M. 737, 858 P.2d 404 (1993), the court disbarred the lawyer for violations including manufacturing documents.  A lawyer hired by another attorney to assist in a class action lawsuit was paid over $173,000, but he later filed suit claiming that a partnership or joint venture had existed between them and that he was owed a formal accounting and a division of the profits.  The district court found that the attorney fraudulently manufactured documents for use in the litigation and “lied under oath about facts of the underlying controversy and matters bearing on his credibility.”  The Supreme Court agreed that, among other things, the attorney had violated Rule 16-304(B) by falsifying evidence.  The court adopted the recommendation of the disciplinary board, and the attorney was disbarred and assessed all costs of the disciplinary proceedings.  The court also ordered that its opinion be published in the Bar Bulletin and the New Mexico Reports.

A similar result occurred in In re C’de Baca, 108 N.M. 622, 776 P.2d 551 (1989).  There, an attorney filed a Chapter 13 bankruptcy on his own behalf, and then failed to attend a required creditors’ meeting or to seek a continuance.  During a deposition, the attorney knowingly gave false statements under oath regarding the reasons why he failed to attend the meeting.  The judge dismissed the bankruptcy proceedings for “willful failure of the Debtor to abide by Order of the Court or to appear before the Court in proper prosecution of the case.”  In response to the disciplinary board’s charges, the attorney admitted to the Supreme Court that he had violated NMR 16-304(C) by knowingly disobeying an obligation under the rules of a tribunal.  The court agreed with the disciplinary board’s recommendation that the attorney be suspended from the practice of law, but it reduced the time of suspension from 1 year to 6 months with automatic reinstatement.

See also Matter of Righter, 126 N.M. 730, 975 P.2d 343 (1999).

3.4:310            Prohibited Inducements

According to Comment [3] for NMR 16-304, a lawyer may pay a witness’s expenses or compensate an expert witness, on terms permitted by law.  The common law rule is it is improper to pay an occurrence witness a fee for testifying, or to pay an expert witness a contingency fee.

In the course of his representation of two clients and during an investigation into his own misconduct, an attorney acted improperly when he intimidated witnesses and suborned false statements from a client and from a fellow attorney. In re Ayala, 102 N.M.214, 693 P.2d 580 (1984).  The Supreme Court found the attorney’s conduct to be in violation of the rule whereby a lawyer shall not falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law.  The court ordered disbarment and payment of costs.

3.4:400 Knowing Disobedience to Rules of Tribunal

All lawyers licensed by the Supreme Court are obligated to obey the orders of the Supreme Court, as well as orders entered by the lower courts.  Matter of Allred, 27 P.3d 977, 130 N.M. 490 (2001).  Willful violation of a court’s order without testing its validity through established process directly affects a court’s ability to discharge its duties.  No New Mexico attorney should indulge in the notion that doing what a professional should do will relieve him or her of ethical responsibilities they do not want to discharge.

The attorney in In re Dawson, 2000-NMSC-024, 129 N.M. 369, 8 P.3d 856 (2000), representing a client in a criminal matter, failed to file an appropriate docketing statement providing the Court of Appeals with additional facts or law to support his position.  The court issued a calendar notice rejecting the docketing statement and ordering the attorney to file an amended statement.  The attorney failed to file an amended statement as ordered and did not request additional time.  In addition, the attorney was suspended from the practice of law for nonpayment of his bar dues.  The Supreme Court found that the attorney violated, among others, NMR 16-304(C), by knowingly disobeying an obligation under the rules of a tribunal.  The court adopted the disciplinary board’s recommendation and approved the attorney’s conditional agreement not to contest and consent to discipline, and the attorney was suspended from the practice of law for a period of two years.  The court also ordered that, if the attorney resolved the issues surrounding his nonpayment of bar dues and was recommended for reinstatement, the suspension would be deferred and the attorney placed on probationary status for two years under strict conditions, including restitution to two clients.

An attorney failed to file a docketing statement for his client’s appeal, despite the court clerk’s having sent a letter of warning and granting an extension.  In re Roberts, 119 N.M. 769, 895 P.2d 669 (1995).  The case was ultimately dismissed for lack of prosecution.  Over the course of seven years, the attorney repeatedly told his client that the matter was still pending.  The Supreme Court found the attorney violated, among others, NMR 16-304(C), by knowingly disobeying an obligation under the rules of a tribunal.

The lawyer in In re Roberts-Hohl, 116 N.M. 700, 866 P.2d 1167 (1994), repeatedly failed to respond to interrogatories and requests for production of documents, failed to provide his clients with status updates, failed to respond to telephone calls from his clients, and failed to file responses to court orders and other communications sent via certified mail, including show cause orders.  The case was ultimately dismissed for failure to prosecute.  The Supreme Court found that the attorney violated NMR 16-304(C), by knowingly disobeying an obligation under the rules of the court, and NMR 16-304(D), by failing to make reasonably diligent effort to comply with a proper discovery request.

An attorney committed knowing disobedience to the rules of the tribunal where he attempted to falsify the identify of a witness, in In re Lindsey, 112 .N.M. 17, 810 P.2d 1237 (1991).

Similarly, the knowingly disobeyed an obligation under the rules of a tribunal in In re C’de Baca, 108 N.M. 622, 776 P.2d 551 (1989), where he knowingly gave false statements under oath regarding the reasons why he failed to attend a court meeting.

3.4:500 Fairness in Pretrial Practice

Section 36-2-10(F) NMSA 1978 (1991 Repl. Pamp.) states that it is the duty of lawyers in New Mexico to abstain from advancing facts “prejudicial to the honor or reputation of a party or witness unless required by the justice of the cause with which he is charged.”

Attorneys in New Mexico are guided by A Creed of Professionalism of the New Mexico Bench and Bar, which says that with respect to opposing parties and their counsel, “I will not make improper statements of fact or of law; I will agree to reasonable request for extensions of time or waivers of formalities when legitimate interests of my client will not be adversely affected; I will consult with opposing counsel before scheduling depositions and meetings or before rescheduling hearings; I will cooperate with opposing counsel’s request for scheduling changes; I will not use litigation, delay tactics, or other courses of conduct to harass the opposing party or their counsel; I will refrain from excessive and abusive discovery, and I will comply with reasonable discovery requests; in depositions, negotiations and other proceedings, I will conduct myself with dignity, avoiding groundless objections and other actions that are disrupting and disrespectful; I will not serve motions and pleadings that will unfairly limit the other parties opportunity to respond; in the preparation of documents and in negotiations, I will concentrate on substance and content; I will clearly identify, for other counsel or parties, all changes that I have made in all documents;” and with respect to the courts and other tribunals, “I will voluntarily exchange information and work on a plan for discovery as early as possible; I will attempt to resolve, by agreement, my objections to matters contained in my opponents pleadings and discovery requests; when hearings or depositions are cancelled, I will notify opposing counsel, necessary parties, and the court (or other tribunal) as early as possible; before dates for hearings or trials are set, or immediately after dates have been set, I will verify the availability of participants and witnesses, and I will notify the court (or other tribunal) and opposing counsel of any problems; [and] I will punctual for court hearings, conferences and depositions.”

An attorney’s off the record statements to opposing counsel during the early stages of litigation cannot bind the client throughout the course of litigation; after such statements are made, an attorney may become aware of new law or facts that require him, in zealous, good faith representation of client, to change positions.  Maya v. General Motors Corp., 953 F. Supp. 1245 (D.N.M. 1996).

A licensed attorney, although authorized by regulations to file affidavits and notices of deposition, was not authorized to mislead the court or to abuse the discovery process, and thus was not exempt from the claim that his filing of a false affidavit and his seeking of a deposition in order to intimidate, violated New Mexico’s Unfair Practices Act (UPA).  Campos v. Brooksbank, 120 F. Supp.2d 1271 (D.N.M. 2000)See also State v. Eder, 103 N.M. 211, 704 P.2d 465 (Ct. App. 1985) (compelling witnesses to produce documents with unauthorized subpoenas amounts to perpetrating a “deceit” on the witness, under the Code of Professional Responsibility rule prohibiting an attorney from engaging in deceit).

According to State Bar Advisory Opinion 1990-2, a lawyer is not required to notify the court that no action has been taken in a criminal action against his client, and it may be malpractice if he does.  An exception exists if the client desires a speedy resolution, but there is no general duty to the court or opposing party to give notice.  See also State Bar Advisory Opinion 1990-5 (lawyer may not mail subpoenas to witnesses to compel their attendance in lieu of having the subpoenas issued by the court and served).  Under the former Code of Professional Responsibility, the lawyer was under no duty to tell opposing counsel of a statute of limitations that could defeat the claim of the lawyer’s client.  State Bar Advisory Opinion 1987-2. 

In In re Righter, 126 N.M. 730, 975 P.2d 343 (1999), an attorney failed to appear at a scheduling conference before a federal magistrate judge and offered no excuse for not appearing.  After several weeks of unsuccessful attempts to communicate, the judge issued an order to show cause why the case should not be dismissed for failure to prosecute, but the attorney again failed to appear.  On that same date, however, the attorney filed an answer to the show-cause order claiming he had not received notice of the scheduling conference.  Moreover, a copy of that same pleading had been mailed to opposing counsel nearly a week before the date of show-cause hearing.  At subsequent hearings, despite being confronted with factual evidence to the contrary, the attorney continued to insist that the reason for his failure to appear was that he received no notice.  The Supreme Court found that the attorney violated NMR 16-304(D) by failing to make reasonably diligent efforts to comply with a legally proper discovery request.

The attorney in In re Herkenhoff, 116 N.M. 622, 866 P.2d 350 (1993), without seeking a protective order and without taking any steps to stay a deposition, failed to appear and failed to have his client appear.  The deposition was rescheduled, and the attorney advised his clients to refuse to answer all questions, claiming the information was confidential, and to refuse to produce any of the subpoenaed documents.  The hearing committee and the disciplinary board found that the attorney violated numerous provisions of the Rules of Professional Conduct, including NMR 16-304(A) & (C), through “unorthodox conduct” that served only to inconvenience the opposing party and disrupt the legal proceeding.  The Supreme Court adopted the board’s recommendation and ordered that the attorney be suspended indefinitely from the practice of law for a period not to exceed two years.  That sanction was deferred in favor of a one-year, supervised probationary period prior to application for reinstatement, and the costs of the proceedings were assessed against the attorney.

Responsibilities to the judicial system must be scrupulously honored during discovery, as illustrated by Matter of Estrada, 2006-NMSC-047, 140 N.M. 492, 143 P.3d 731. An inexperienced attorney represented a pharmacy accused of erroneously filling a child’s Ritalin prescription with methadone.  During the course of discovery the attorney found records indicating that the prescription at issue had been improperly filled.  Although the attorney initially recommended her client admit liability and prepare for settlement, she ultimately relied on assurances that the missing drugs could be accounted for from the pharmacist, the pharmacy manager, and out-of-state counsel.  This reliance also culminated in her introduction into evidence at trial a prescription that was later proven to be a forgery.  The Court agreed with the hearing committee’s determination that the attorney did not know the prescription was forged and therefore did not violate NMR 16-303(A)(1)NMR 16-304, however, was violated because when requests are made to admit the existence of identifiable records or to produce identifiable documents, attorneys have an obligation under the rules to do so.  When attorneys do not comply with the rules of discovery, they are not zealously advocating for their clients, they are violating their professional obligations to the system of justice itself.  The attorney should have identified the documents when asked or supplemented her response when she discovered them.

3.4:600 Improper Trial Tactics

In McDowell v. Napolitano, 119 N.M. 696, 895 P.2d 218 (1995), the court did not find a reversible error where the attorney injected himself into questions by using “I” or “we” in his direct and cross-examination of witnesses.  Likewise, in State v. Pennington, 115 N.M. 372, 851 P.2d 494 (Ct. App. 1993), a criminal defendant claimed on appeal that the prosecutor improperly vouched for a state’s witness during her closing argument, a violation of NMR 16-304(E).  The court stated that although prosecutors have considerable latitude in their closing arguments, that latitude does not extend to vouching for the credibility of a witness.  Although the court rejected the application of the “invited-response” doctrine as a justification for the prosecutor’s statements, the impropriety was not found to have undermined the fundamental fairness of the trial.

A prosecuting attorney used the phrase “I think” when recommending to the jury that they return a guilty verdict.  State v. Ferguson, 111 N.M. 191, 803 P.2d 676 (Ct. App. 1990).  Based on this and other improprieties, the trial court granted the murder defendant’s motion for a new trial.  In affirming the trial court’s granting of the defendant’s motion, the Court of Appeals recognized that NMR 16-304(E) prohibits a prosecutor from expressing personal views about the defendant’s guilt, and found that the lower court did not abuse its discretion in granting the motion for a new trial.

In State v. McClaugherty, 2008 NMSC 44, 144 N.M. 483, 188 P.3d 1234, the Supreme Court held that a prosecutor “completely denied” a defendant’s due process of law when, through innuendo and improper questioning, he referred the jury to inadmissible out of court statements allegedly made with regard to the defendant’s culpability.  The Court indicated these actions were in violation of NMR 16-304(E).   

3.4:700 Advising Witness Not to Speak to Opposing Parties

According to the Comment for NMR 16-304, a lawyer may advise employees of a client to refrain from giving information to another party, as the interests of the employees and the client may align.

Among the attorney’s many violations in In re Lindsey, 112 .N.M. 17, 810 P.2d 1237 (1991), was violation of NMR 16-304(F)(1).

An attorney was properly disbarred for having engaged in several acts of misconduct, including subornation of false statements, intimidation of witnesses, and making dishonest and intentional misrepresentations to the disciplinary board.  Matter of Ayala, 102 N.M. 214, 693 P.2d 580 (1984).

3.5 Rule 3.5 Impartiality and Decorum of the Tribunal

3.5:100 Comparative Analysis of New Mexico Rule

“A lawyer shall not:

A.        seek to influence a judge, juror, prospective juror or other official by means prohibited by law;

B.        communicate ex parte with such a person during the proceeding unless authorized to do so by law or court order;

C.        communicate with a juror or prospective juror after discharge of the jury if:

            (a)        the communication is prohibited by law or court order;

            (b)        the juror has made known to the lawyer a desire not to communicate; or

            (c)        the communication involves misrepresentation, coercion, duress or harassment; or

D.        engage in conduct intended to disrupt a tribunal.”

 

3.5:101   Model Rule Comparison

3.5:102   Model Code Comparison

 

3.5:200 Improperly Influencing a Judge, Juror, or Other Court Official

 

3.5:210   Improperly Influencing a Judge

3.5:220   Improperly Influencing a Juror

 

3.5:300 Improper Ex Parte Communication

 

3.5:400 Intentional Disruption of a Tribunal

 

3.6 Rule 3.6 Trial Publicity

3.6:100 Comparative Analysis of New Mexico Rule

“A.      Extrajudicial statements.  A lawyer shall not make any extrajudicial or out-of-forum statement in a proceeding that may be tried to a jury that the lawyer knows or reasonably should know:

            (1)        is false; or

            (2)        creates a clear and present danger of prejudicing the proceeding.

B.        Attorney's obligations with respect to other persons.  A lawyer shall make reasonable efforts to insure compliance with this rule by associated attorneys, employees and members of law enforcement and investigative agencies.”

3.6:101   Model Rule Comparison

Following the 2008 amendments, NMR 16-306 on trial publicity continues to differ from both the original and the current versions of MR 3.6, although NMR 16-306 is no longer limited to criminal matters and instead like the Model Rule applies to all proceedings.  Further, NMR 16-306 only restricts a lawyer’s extrajudicial or out-of-forum statements in proceedings “that may be tried to a jury.”  The Model Rule does not contain this limitation. 

The New Mexico rule on trial publicity is more concise than the Model Rule.  Under NMR 16-306, “a lawyer shall not make any extrajudicial or out-of-forum statement in a proceeding that may be tried to a jury that the lawyer knows or reasonably should know is false or creates a clear and present danger of prejudicing the proceeding.”  The Model Rule makes no provision for a knowingly false statement and instead of prohibiting trial publicity that “creates a clear and present danger of prejudicing the proceeding,” only prohibits trial publicity which “will have a substantial likelihood of materially prejudicing an adjudicative proceeding.”

The New Mexico rule does not give guidance as to what is considered to be a statement that would prejudice the proceeding, whereas the Model Rule gives numerous examples.  While MR 3.6(b) describes acceptable forms of trial publicity, New Mexico incorporates those concepts in Comment [3] of the 2008 Committee Commentary.

3.6:102   Model Code Comparison

NMR 16-306 is substantially different from DR 7-107. As NMR 16-306 is limited to “a criminal proceeding that may be tried to a jury,” DR 7-107(G) regarding civil proceedings has no counterpart in the New Mexico rules. The provisions of DR 7-107 pertaining to criminal proceedings are in parts (A), (B), (C), (D), & (E). NMR 16-306 does not include DR 7-107(C)(7), which says a lawyer may reveal “[a]t the time of seizure, a description of the physical evidence seized, other than a confession, admission or statement.” See also EC 7-25, and EC 7-33.

3.6:200 Improper Extrajudicial Statements

NMR 16-306 prohibits a lawyer from making out-of-court statements in a criminal proceeding that may be tried to a jury that the lawyer knows or reasonably should know are false, or create a clear and present danger of prejudicing the proceeding.  Application of the rule requires an appropriate balance between rights of free speech and the interest in fair and impartial adjudication.  Hence, any prior restraint on public comment by trial participants must be accompanied by specific factual findings supporting the conclusion that further extrajudicial statements would pose a clear and present danger to the administration of justice.  Twohig v. Blackmer, 121 N.M. 746, 918 P.2d 332 (1996).  Special responsibilities to supervise assisting personnel regarding trial publicity are stated in NMR 16-308(E). See also NMR 16-306 Comments [1] to [2] and [4] to [5].

3.6:300 Permissible Statements

Out-of-court statements regarding a criminal proceeding that are not shown by specific facts to pose a clear and present danger to the administration of justice are permissible.  Twohig v. Blackmer, 121 N.M. 746, 918 P.2d 332 (1996).  Thus, a U.S. attorney’s brief press statement that was a general comment on the complexity of cases involving charges against public officials, was not a specific comment on the strengths of the present case or defendant’s guilt or innocence, and did not violate DR 7-107(B)(6) (now see NMR 16-306).  United States v. Troutman, 814 F.2d 1428 (10th Cir. 1987).

3.6:400 Responding to Adverse Publicity

The Comment to NMR 16-306 and New Mexico case law are silent on this point.

3.7 Rule 3.7 Lawyer as Witness

3.7:100 Comparative Analysis of New Mexico Rule

“A.      Necessary witnesses.  A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness unless:

            (1)        the testimony relates to an uncontested issue;

            (2)        the testimony relates to the nature and value of legal services rendered in the case; or

            (3)        disqualification of the lawyer would work substantial hardship on the client.

B.        Associate lawyer.  A lawyer may act as advocate in a trial in which another lawyer in the lawyer's firm is likely to be called as a witness unless precluded from doing so by Rule 16-107 NMRA or 16-109 NMRA of the Rules of Professional Conduct.”

3.7:101   Model Rule Comparison

The New Mexico rule and Comment are substantially identical to MR 3.7 and Comment.

3.7:102   Model Code Comparison

DR 5-102(A) disallows a lawyer or his firm from serving as an advocate if the lawyer “learns or it is obvious that he or a lawyer in his firm ought to be called as a witness on behalf of his client.”  DR 5-102(B) says a lawyer or his firm could continue the representation “If the lawyer learns or it is obvious that he or a lawyer in his firm may be called as a witness other than on behalf of his client . . . until it is apparent that his testimony is or may be prejudicial to his client.”  NMR 16-307 does not distinguish on the basis of whether or not the testimony is on behalf of the client. 

Under DR 5-101(B), a lawyer may testify while representing a client: “(1) If the testimony will relate solely to an uncontested matter; (2) If the testimony will relate solely to a matter of formality and there is no reason to believe that substantial evidence will be offered in opposition to the testimony; (3) If the testimony will relate solely to the nature and value of services rendered in the case by the lawyer or his firm to the client; (4) As to any matter if refusal would work a substantial hardship on the client because of the distinctive value of the lawyer or his firm as counsel in the particular case.” This delineation of the circumstances under which a lawyer who is a witness may also serve as an advocate generally tracks NMR 16-307(A)(1) & (2), save for New Mexico’s omission of the permission granted in (4). See also EC 5-9, and EC 5-10.

The Model Code does not contain a provision that directly corresponds with NMR 16-307(B), which under certain circumstances allows a lawyer to act as advocate even if another lawyer in his firm may not due to his status as witness.  See EC 5-9, DR 5-101(B), and

3.7:200 Prohibition of Advocate as Witness

In Chappell v. Cosgrove, 121 N.M. 636, 916 P.2d 836 (1996), the New Mexico Supreme Court held that materiality, necessity and potential prejudice is the standard for disqualification under NMR 16-307. This means that an attorney may not disqualified under NMR 16-307 absent a showing by the party seeking disqualification that the attorney's testimony is material to an issue in the case, that the evidence to be elicited from the attorney's testimony is not available from another source, and that the attorney's testimony is potentially prejudicial to his client's case. Threshold discovery ordinarily will be necessary to establish these elements. The court went on to find the lawyer was not a necessary witness in that breach of contract case, in which the lawyer was present for disputed negotiations, because four others attended the key events.

An attorney met disqualification in Sanders v. Rosenberg, 122 N.M. 695, 930 P.2d 1144 (1996), because the Ëbest interests of the childrenÓ rule constituted a compelling reason to deny a mother he counsel of choice. There, the mother chose her new husband to represent her in a contested divorce and child custody proceeding against her former husband and the children's father.

In State v. Mart'nez, 2001 NMCA 059, 31 P.3d 1018, issues existed whether defense counsel or his staff were present during the crime. The court determined that if the lawyer was not present at the crime, he would almost certainly have to testify to address suspicions, but this would have precluded counsel from continuing as advocate in the case. The court also said if the lawyer was present at the crime he could not provide effective representation, with the combination of the circumstances meaning an actual conflict of interest existed.

It is usually impermissible for a lawyer to serve a juvenile client as both defense attorney and guardian ad litem because the GAL, who may be in a unique position to advocate for the child in a delinquency proceeding, may not be able to serve in that capacity in the role of an attorney. State v. Joanna V., 2004 NMSC 24, 94 P.3d 783.

Testimony by an attorney on matters collateral to a determination of the merits may be given. Mitchell-Carr v. McLendon, 1999-NMSC-025, 127 N.M. 282, 980 P.2d 65.

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.

A prosecutor who did not have reason to know he or his staff would be called as a witness did not the former New Mexico rule governing attorney as witness, in United States v. Troutman, 814 F.2d 1428 (10th Cir. 1987).

Comments [1] to [6] to NMR 16-307 discuss the rationales supporting the rule, including juries who are not confused, fairness to the opposing party, and zealous legal representation unburdened by any conflicts.

3.7:300 An Affiliated Lawyer as Advocate (Imputed Disqualification)

In Johnstone v. Dairyland Ins. Co., 1991 U.S.App.LEXIS 29489 (10th Cir. 1991), different attorneys within the same firm served as both counsel and witness in related actions, but this was permissible because the conduct was consistent with the conflict of interest rules in NMR 16-107.

Where the lawyer's former client at the lawyer's former firm is suing a client of the lawyer's current firm, and where the lawyer has been advised he may be a witness, the lawyer should advise his current firm. Also, the current firm may have to withdraw from representation of the adversary of the lawyer's former client, if the two matters are substantially related. State Bar Advisory Opinion 1987-4.

3.8 Rule 3.8 Special Responsibilities of a Prosecutor

3.8:100 Comparative Analysis of New Mexico Rule

“The prosecutor in a criminal case shall:

A.        refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause;

B.        make reasonable efforts to assure that the accused has been advised of the right to, and the procedure for, obtaining counsel and has been given reasonable opportunity to obtain counsel;

C.        not seek to obtain from an unrepresented accused a waiver of important pretrial rights, such as the right to a preliminary hearing;

D.        make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal;

E.         not subpoena a lawyer in a grand jury or other criminal proceeding to present evidence about a past or present client unless the prosecutor reasonably believes:

            (1)        the information sought is not protected from disclosure by any applicable privilege;

            (2)        the evidence sought is essential to the successful completion of an ongoing investigation or prosecution; and

            (3)        there is no other feasible alternative to obtain the information; and

F.         except for statements that are necessary to inform the public of the nature and extent of the prosecutor’s action and that serve a legitimate law enforcement purpose, refrain from making extrajudicial comments that are false or crate a clear and present danger of prejudicing a criminal proceeding, and exercise reasonable care to prevent investigators, law enforcement personnel, employees or other persons assisting or associated with the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under Rule 16-306 NMRA of the Rules of Professional Conduct.”

3.8:101   Model Rule Comparison

NMR 16-308 is substantially identical to MR 3.8, except New Mexico has not adopted Subparagraphs G and H of MR 3.8, which place disclosure duties on prosecutors who become aware of exculpatory evidence material to a conviction.  Similarly, New Mexico has not adopted ABA Comments 7, 8 and 9, all of which relate to these duties.

3.8:102   Model Code Comparison

3.8:200 The Decision to Charge

Under the New Mexico Rules of Professional Conduct, a prosecutor may not pursue charges unsupported by probable cause.  Additionally, a prosecutor may not pursue a crime that is clearly invalid and must refrain from improper methods calculated to produce a wrongful conviction.  Campos v. Bravo, 2007-NMSC-021, 141 N.M. 801, 161 P.3d 843; see also Comments [1] to [5] to NMR 16-308, particularly Comment [1] and its admonition “a prosecutor has the responsibility of minister of justice and not simply that of an advocate.”

3.8:300 Efforts to Assure Accused's Right to Counsel

Pursuant to NMR 16-308, prosecutors in New Mexico are viewed as quasi-judicial officers. State v. Gonzales, 2005-NMSC-025, 138 N.M. 271, 119 P.3d 151.  There, the Supreme Court affirmed an order disqualifying an entire district attorney’s office from prosecuting two criminal defendants.  Although not explicitly contained in the Professional Rules of Conduct, a conflict-of-interest analysis should closely examine the facts of each case for the appearance of impropriety and should strive to maintain confidence in the integrity of the judicial system.  A prosecutor may be disqualified when there is a factual basis suggesting that bias might influence his or her professional judgment.  Disqualification may be imputed to the entire office when there is an appearance of impropriety in permitting anyone else in the office to proceed.  The fact that a case is high profile, politically charged, or both, is insufficient for disqualification of a member of the prosecution team.  Disqualification of a prosecutor should remain a rare event; disqualification of an entire office even more so.  But when presented with evidence that the prosecuting attorney had a prior adversarial work relationship with the defendant and that the District Attorney was not screened from the prosecution, but instead participated in it, the appearance of unfairness was created and warranted preventing anyone from the office to prosecute the defendants.

3.8:400 Seeking Waivers of Rights from Unrepresented Defendants

3.8:500 Disclosing Evidence Favorable to the Accused

3.8:600 Monitoring Extrajudicial Statements by Law Enforcement Officials

3.8:700 Issuing a Subpoena to a Lawyer

3.8:800 Making Extrajudicial Statements

3.8:900 Peremptory Strikes of Jurors

  • Primary New Mexico References: NM Rule 16-308
  • Background References: Other Jurisdictions
  • Commentary:
  • New Mexico Commentary:

3.9 Rule 3.9 Advocate in Nonadjudicative Proceedings

3.9:100 Comparative Analysis of New Mexico Rule

“A lawyer representing a client before a legislative body or administrative agency in a non-adjudicative proceeding shall disclose that the appearance is in a representative capacity and shall conform to the provisions of Paragraphs A through C of Rule 16-303 NMRA, Paragraphs A through C of Rule 16-304 NMRA and Rule 16-305 NMRA of the Rules of Professional Conduct.”

3.9:101   Model Rule Comparison

3.9:102   Model Code Comparison

3.9:200 Duties of Advocate in Nonadjudicative Proceedings