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Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.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

IV. TRANSACTIONS WITH PERSONS OTHER THAN CLIENTS

4.1 Rule 4.1 Truthfulness in Statements to Others

4.1:100 Comparative Analysis of New Mexico Rule

“In the course of representing a client a lawyer shall not knowingly:

A.        make a false statement of material fact or law to a third person; or

B.        fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 16-106 NMRA of the Rules of Professional Conduct.”

4.1:101   Model Rule Comparison

There are no material differences between NMR 16-401 and MR 4.1.  The Comments to NMR 16-401 discuss facets of the rule, including that a lawyer must be truthful but generally is not required to disclose relevant facts to the opponent (Comment [1]), limitation of the rule to statements of fact with examples of non-factual statements (Comment [2]), and the relationship with NMR 16-102(D) (Comment [3]).

4.1:102   Model Code Comparison

 

4.1:200 Truthfulness in Out-of-Court Statements

 

4.1:300 Disclosures to Avoid Assisting Client Fraud [see also 1.6:370]

 

4.2 Rule 4.2 Communication with Person Represented by Counsel

4.2:100 Comparative Analysis of New Mexico Rule

“In representing a client, a lawyer shall not communicate about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized by law to do so.  Except for persons having a managerial responsibility on behalf of the organization, an attorney is not prohibited from communicating directly with employees of a corporation, partnership or other entity about the subject matter of the representation even though the corporation, partnership or entity itself is represented by counsel.”

4.2:101   Model Rule Comparison

With regard to communications with persons represented by counsel, NMR 16-402 tracks MR 4.2 except it maintains a sentence not found in MR 4.2, namely, “except for persons having a managerial responsibility on behalf of the organization, an attorney is not prohibited from communicating directly with employees of a corporation, partnership, or other entity about the subject matter of the representation even though the corporation, partnership or entity itself is represented by counsel.”  The Comment to NMR 16-402 is substantially identical to the ABA’s Comment to MR 4.2.  The purpose of the rule is explained in Comment [1].

4.2:102   Model Code Comparison

NMR 16-402 is substantially identical to DR 7-104(A)(1). See also EC 2-30, and EC 7-18.

4.2:200 Communication with a Represented Person

The purpose of NMR 16-402 is to protect lay persons from the possibility of an attorney using his legal training and expertise to gain an advantage, where the lay person has an acknowledged unfamiliarity with legal complexities by having retained counsel.   Matter of Herkenhoff, 116 N.M. 622, 866 P.2d 350 (1993).

In Matter of Chavez, 1996 NMSC 59, 122 N.M. 504, 927 P.2d 1042, the attorney violated NMR 16-402 by contacting a party represented by counsel.  Although this contact was initiated by the opposing party, the attorney should have declined to discuss the case until he verified with the opposing party’s attorney that the party was no longer represented.  

4.2:210   "Represented Person" (Contact with an Agent or Employee of a Represented Entity)

Counsel for plaintiff in a disabilities case was held to have improperly obtained an affidavit from an emeritus professor who had responsibility for decisions regarding the New Mexico plaintiff’s student status, in McGuinness v. University of New Mexico School of Medicine, 170 F.3d 974 (10th Cir. 1998) (upholding sanctions for violation of a protective order barring ex parte contacts with the individual, and rejecting plaintiff’s contention that by lodging complaint with magistrate judge, defense counsel chilled flow of information necessary for plaintiff’s case and thus improperly wielded Rules of Professional Conduct as a tactical weapon). 

In Matter of Herkenhoff, 116 N.M. 622, 866 P.2d 350 (1993), the president and CEO of a bank clearly had managerial responsibility for the bank and was a person protected by the prohibitions of NMR 16-402.  The lawyer in that case committed “blatant violation” of the rule, undermining his opponent’s attorney-client relationship, and resulting in serious consequences including suspension.  See also Comment [7] to NMR 16-402.

4.2:220   Communications "Authorized by Law" -- Law Enforcement Activities

The Supremacy Clause of the United States Constitution did not preclude enforcement of this rule against an Assistant United States Attorney, since it appears to be the intent of Congress that the attorney and others in his position should adhere to the ethical standards prescribed by their licensing states.  Matter of Howes, 123 N.M. 311, 940 P.2d 159 (1997).  In that case, “listening” to a represented criminal defendant by an Assistant United States Attorney constituted “communication,” and by not contacting the defendant’s attorney and by encouraging the defendant to talk to him and a detective, the attorney violated this rule and the principles behind it.  Further, the Assistant United States Attorney’s communications with a represented criminal defendant were not authorized by law within the meaning of this rule. NMR 16-502 did not excuse the Assistant United States Attorney’s violation of this rule.  See also Comment [5] to the rule.

A similar situation arose in United States v. Thomas, 474 F.2d 110 (10th Cir. 1973), where the prosecuting attorney obtained a statement from the defendant without informing his attorney of the impending interview, and the court held the conduct unethical.

4.2:230   Communications "Authorized by Law" -- Other

If the represented party initiates contact, the proscriptions of this rule apply equally. Matter of Herkenhoff, 116 N.M. 622, 866 P.2d 350 (1993).  The New Mexico Disciplinary Board, and not the United States District Court, was the appropriate forum for adjudicating a claim against an assistant United States attorney permitted to practice solely by virtue of his New Mexico license.  Matter of Doe, 801 F. Supp. 478 (D.N.M. 1992).  Additionally, an assistant United States attorney could not properly remove disciplinary proceeding under this rule to federal court under 28 U.S.C. § 1442, and case was remanded accordingly to the New Mexico disciplinary board.  Matter of Gorence, 810 F. Supp. 1234 (D.N.M. 1992).

The status of the Risk Management Division as a public entity does not mean that communications by a plaintiff’s lawyer with the Risk Management Division without the consent of the lawyer hired by the Risk Management Division are “authorized by law.”  State Bar Advisory Opinion 1988-2.

4.2:240   Communication with a Represented Government Agency or Officer

An attorney serving as guardian ad litem occupies a unique position that justifies contacts with state child welfare personnel without the presence of state counsel.  State ex rel. Children, Youth & Families Dep’t v. George F, 1998 NMCA 119, 125 N.M. 597, 964 P.2d 158 (explaining that a guardian ad litem (GAL) when investigating the facts affecting a child in order to report to the court as required by statute is acting to assist the court in carrying out its duty, and is not functioning solely as an attorney advocating the child’s wishes, nor in the traditional manner of an attorney who represents a client with a single minded duty solely to that client, and thus, the GAL is not prohibited by the Rules of Professional Conduct from ex parte contact with social workers, outside the presence of attorneys from the Youth and Families Department).  See also Comment [4] to the rule.

A plaintiff’s lawyer may not communicate directly with the Risk Management Division of the State of New Mexico in order to explain or negotiate settlement of a case, without the consent of the lawyer for the Risk Management Division.  The role of the Risk Management Division is similar to that of a private insurance company.  State Bar Advisory Opinion 1988-2

4.2:250   Communication with a Confidential Agent of Non-Client

 

4.3 Rule 4.3 Dealing with Unrepresented Person

4.3:100 Comparative Analysis of New Mexico Rule

“In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested.  When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer’s role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding.  The lawyer shall not give legal advice to an unrepresented person, other than the advice to secure counsel, if the lawyer knows or reasonably should know that the interests of such a person are or have a reasonable possibility of being in conflict with the interests of the client.”

4.3:101   Model Rule Comparison

Following the 2008 amendments, NMR 16-403 and Comment are substantially the same as MR 4.3 and Comment.  Prior to the amendments, the final sentence in current NMR 16-403 was absent.

4.3:102   Model Code Comparison

 

4.3:200 Dealing with Unrepresented Person

 

4.4 Rule 4.4 Respect for Rights of Third Persons

4.4:100 Comparative Analysis of New Mexico Rule

 

4.4:101   Model Rule Comparison

NMR 16-404 mirrors MR 4.4.  Paragraph (B) was inserted as part of the 2008 amendments.  The New Mexico and ABA Comments currently track one another as well.

4.4:102   Model Code Comparison

 

4.4:200 Disregard of Rights or Interests of Third Persons

 

4.4:210   Cross-Examining a Truthful Witness; Fostering Falsity

 

4.4:220   Threatening Prosecution [see 8.4:900]