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Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.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

V. LAW FIRMS AND ASSOCIATIONS

5.1 Rule 5.1 Responsibilities of a Partner and Supervisory Lawyer

5.1:100 Comparative Analysis of New Mexico Rule

“A.      Necessary measures.  A partner in a law firm and a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that all lawyers in the firm conform to the Rules of Professional Conduct.

B.        Compliance with rules.  A lawyer having direct supervisory authority over another lawyer shall make reasonable efforts to ensure that the other lawyer conforms to the Rules of Professional Conduct.

C.        Responsibility for other lawyer’s violations.  A lawyer shall be responsible for another lawyer’s violations of the Rules of Professional Conduct if:

            (1)        the lawyer orders or, with knowledge of the specific conduct, ratifies the conduct involved; or

            (2)        the lawyer is a partner or has comparable managerial authority in the law firm in which the other lawyer practices or has direct supervisory authority over the other lawyer, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.”

5.1:101   Model Rule Comparison

After Paragraph (A) was added under the 2008 amendments, there are no material differences between NMR 16-501 and MR 5.1.  Nor do any significant differences exist in the New Mexico and ABA Comments.

5.1:102   Model Code Comparison

 

5.1:200 Duty of Partners to Monitor Compliance with Professional Rules

 

5.1:300 Monitoring Duty of Supervising Lawyer

 

5.1:400 Failing to Rectify the Misconduct of a Subordinate Lawyer

 

5.1:500 Vicarious Liability of Partners

 

5.2 Rule 5.2 Responsibilities of a Subordinate Lawyer

5.2:100 Comparative Analysis of New Mexico Rule

“A.      Responsibility for own actions.  A lawyer is bound by the Rules of Professional Conduct notwithstanding that the lawyer acted at the direction of another person.

B.        Arguable question of duty.  A subordinate lawyer does not violate the Rules of Professional Conduct if that lawyer acts in accordance with a supervisory lawyer’s reasonable resolution of an arguable question of professional duty.”

 

5.2:101   Model Rule Comparison

Other than the section headings, NMR 16-502 is identical to MR 5.2.  There also are no material difference between the New Mexico Commentary and the ABA Comments.

5.2:102   Model Code Comparison

 

5.2:200 Independent Responsibility of a Subordinate Lawyer

 

5.2:300 Reliance on a Supervisor's Resolution of Arguable Ethical Issues

 

5.3 Rule 5.3 Responsibilities Regarding Nonlawyer Assistants

5.3:100 Comparative Analysis of New Mexico Rule

“With respect to a nonlawyer employed or retained by or associated with a lawyer:

A.        a partner and a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that the person’s conduct is compatible with the professional obligations of the lawyer;

B.        a lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person’s conduct is compatible with the professional obligations of the lawyer; and

C.        a lawyer shall be responsible for conduct of such a person that would be a violation of the Rules of Professional Conduct if engaged in by a lawyer if:

            (1)        the lawyer orders or, with the knowledge of the specific conduct, ratifies the conduct involved; or

            (2)        the lawyer is a partner or has comparable managerial authority in the law firm in which the person is employed, or has direct supervisory authority over the person, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.”

5.3:101   Model Rule Comparison

There are no significant differences between NMR 16-503 and Comment and MR 5.3 and Comment.

5.3:102   Model Code Comparison

 

5.3:200 Duty to Establish Safeguards

 

5.3:300 Duty to Control Nonlawyer Assistants

 

5.3:400 Responsibility for Misconduct of Nonlawyer Assistants

 

5.4 Rule 5.4 Professional Independence of a Lawyer [Restrictions on Form of Practice]

5.4:100 Comparative Analysis of New Mexico Rule

“A.      Fee sharing.  A lawyer or law firm shall not share legal fees with a nonlawyer, except that:

            (1)        an agreement by a lawyer with the lawyer’s firm, partner or associate may provide for the payment of money, over a reasonable period of time after the lawyer’s death, to the lawyer’s estate or to one or more specified persons;

            (2)        a lawyer who purchases the practice of a deceased, disabled or disappeared lawyer may, pursuant to the provisions of Rule 16-117 NMRA of the Rules of Professional Conduct, pay to the estate or other representative of that lawyer the agreed-upon purchase price;

            (3)        a lawyer who undertakes to complete unfinished legal business of a deceased, disabled or disappeared lawyer may pay to the estate or other representative of the deceased, disabled or disappeared lawyer that proportion of the total compensation that fairly represents the services rendered by the deceased, disabled or disappeared lawyer;

            (4)        a lawyer or law firm may include nonlawyer employees in a compensation or retirement plan, even though the plan is based in whole or in part on a profit-sharing arrangement;  and

            (5)        a lawyer may share court-awarded legal fees with a nonprofit organization that employed, retained or recommended employment of the lawyer in the matter.

B.        Partnership with nonlawyers.  A lawyer shall not form a partnership with a nonlawyer if any of the activities of the partnership consist of the practice of law.

C.        Influence by nonclient.  A lawyer shall not permit a person who recommends, employs or pays the lawyer to render legal services for another to direct or regulate the lawyer’s professional judgment in rendering such legal services.

D.        Professional corporations and associations.  A lawyer shall not practice with or in the form of a professional corporation or association authorized to practice law for a profit, if:

            (1)        a nonlawyer owns any interest therein, except that a fiduciary representative of the estate of a lawyer may hold the stock or interest of the lawyer for a reasonable time during administration;

            (2)        a nonlawyer is a corporate director or officer thereof or occupies the position of similar responsibility in any form of association other than a corporation; or

            (3)        a nonlawyer has the right to direct or control the professional judgment of a lawyer.”

See State Bar Advisory Opinion 2009-01 (concluding it may be ethically possible for a New Mexico law firm to organize as a limited liability company if it is otherwise lawful for a law firm to do so; and discussing substantive law issues).

5.4:101   Model Rule Comparison

NMR 16-504 differs from MR 5.4 only in one material respect.  New Mexico permits fee sharing in a circumstance not expressly addressed in the Model Rule, namely, “a lawyer who undertakes to complete unfinished legal business of a deceased, disabled or disappeared lawyer may pay to the estate or other representative of the deceased, disabled or disappeared lawyer that proportion of the total compensation that fairly represents the services rendered by the deceased, disabled or disappeared lawyer.”  See NMR 16-504(A)(3).  New Mexico has adopted the ABA Comment to MR 5.4.

5.4:102   Model Code Comparison

 

5.4:200 Sharing Fees with a Nonlawyer

 

5.4:300 Forming a Partnership with Nonlawyers

 

5.4:400 Third Party Interference with a Lawyer's Professional Judgment

 

5.4:500 Nonlawyer Ownership in or Control of Profit-Making Legal Service Organizations

 

5.4:510   Group Legal Services

5.4:520   Nonprofit Organizations Delivering Legal Services

 

5.5 Rule 5.5 Unauthorized Practice of Law

5.5:100 Comparative Analysis of New Mexico Rule

“A.      A lawyer shall not practice law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction or assist another in doing so.

B.        A lawyer shall not employ or continue the employment of a disbarred or suspended lawyer as an attorney.

C.        A lawyer shall not employ or continue the employment of a disbarred or suspended lawyer as a law clerk, a paralegal or in any other position of a quasi-legal nature if the suspended or disbarred lawyer has been specifically prohibited from accepting or continuing such employment by order of the Supreme Court or the disciplinary board.

D.        A lawyer who is not admitted to practice in this jurisdiction shall not:

(1)        except as authorized by the Rules of Professional Conduct or other law, establish an office or other systematic and continuous presence in this jurisdiction for the practice of law; or

(2)        hold out to the public or otherwise represent that the lawyer is admitted to practice law in this jurisdiction.

E.         A lawyer admitted in another United States jurisdiction, and not disbarred or suspended from practice in any jurisdiction, may provide legal services on a temporary basis in this jurisdiction that:

            (1)        are undertaken in association with a lawyer who is admitted to practice in this jurisdiction and who actively participates in the matter;

            (2)        are in or reasonably related to a pending or potential proceeding before a court, legislative body, administrative agency or other tribunal in this or another jurisdiction, if the lawyer, or a person the lawyer is assisting, is authorized by law or order to appear in such proceeding or reasonably expects to be so authorized;

            (3)        are in or reasonably related to a pending or potential arbitration, mediation, or other alternative dispute resolution proceeding in this or another jurisdiction, if the services arise out of or are reasonably related to the lawyer’s practice in a jurisdiction in which the lawyer is admitted to practice and are not services for which the forum requires pro hac vice admission; or

            (4)        are not within Subparagraphs (2) or (3) of Paragraph E and arise out of or are reasonably related to the lawyer’s practice in a jurisdiction in which the lawyer is admitted to practice.  In transactions involving issues specific to New Mexico law, the lawyer shall associate counsel admitted to practice in this jurisdiction.

F.         A lawyer admitted in another United States jurisdiction, and not disbarred or suspended from practice in any jurisdiction and who is in compliance with applicable registration requirements, may provide legal services in this jurisdiction that:

(1)        are provided to the lawyer’s employer or its organizational affiliates and are not services for which the forum requires pro hac vice admission; or

(2)        are services that the lawyer is authorized by federal or other law to provide in this jurisdiction.”

 

5.5:101   Model Rule Comparison

NMR 16-505contains all of the restrictions concerning unauthorized practice of law and multi-jurisdictional practice of law found in MR 5.5, but New Mexico adds two prohibitions not found in the Model Rule.  According to NMR 16-505(B), “a lawyer shall not employ or continue the employment of a disbarred or suspended lawyer as an attorney.”   Also, under Paragraph (C) of the New Mexico Rule, “a lawyer shall not employ or continue the employment of a disbarred or suspended lawyer as a law clerk, a paralegal or in any other position of a quasi-legal nature if the suspended or disbarred lawyer has been specifically prohibited from accepting or continuing such employment by order of the Supreme Court or the disciplinary board.”  Further, while the Model Rule allows a lawyer to provide legal services on a temporary basis in the subject jurisdiction where they are reasonably related to a pending or potential proceeding before a “tribunal,” NMR 16-505(E)(2) changes “tribunal” to “court, legislative body, administrative agency, or other tribunal.”

New Mexico has adopted registration requirements for lawyers admitted in another United States jurisdiction who under certain circumstances may provide legal services in the jurisdiction.  Consequently, Paragraph (F) of NMR 16-505 requires the out-of-state lawyer to be “in compliance with applicable registration requirements.”

The Commentary to the New Mexico Rule and the Model Rule are similar.  However, the New Mexico Commentary adds in [13] that “in transactions involving New Mexico specific legal issues, a lawyer admitted in another jurisdiction and not in New Mexico must associate with New Mexico counsel to provide legal services relating to those issues.”  Also, the New Mexico Commentary omits a provision in the ABA Comment concerning lawyers desiring to provide pro bono legal services on a temporary basis in a jurisdiction that has been affected by a major disaster.

5.5:102   Model Code Comparison

The Model Code section DR 3-101(B) is substantially identical to NMR 16-505(A)DR 3-101(A) is substantially the same as NMR 16-505(D).

5.5:200 Engaging in Unauthorized Practice

The practice of law in almost all courts of this state without admission to the bar is prohibited, under penalty of a contempt citation.  Section 36-2-27 NMSA 1978 (2001 Cum. Supp.) (stating “No person shall practice law in a court of this state, except a magistrate court, nor shall a person commence, conduct or defend an action or proceeding unless he has been granted a certificate of admission to the bar under the provisions of Chapter 36 NMSA 1978").  New Mexico law also prohibits the practice of law without maintaining a valid license, under penalty of imprisonment and fine.  Section 36-2-28 NMSA 1978 (1991 Repl. Pamp.) (stating any person who violates Chapter 36 “shall be deemed guilty of contempt of the court in which the violation occurred, as well as of the supreme court of the state, provided, however that nothing in this section shall be construed to prohibit persons residing beyond the limits of this state, otherwise qualified, from assisting resident counsel in participating in an action or proceeding”).

According to NMR 15-101, a rule adopted and promulgated by the New Mexico Supreme Court, the “‘practice of law’ means being actively and continuously engaged in full-time gainful employment in the performance of legal services.”  “Legal Services” means “advising, advocating or counseling to or for others as to a matter involving law which may not be lawfully performed by a nonlawyer.”  The Supreme Court determines what constitutes the practice of law on a case-by-case basis.  Matter of Chávez, 129 N.M. 35, 1 P.3d 417 (2000) (also explaining that “one of the purposes of our rules governing resigned, disbarred, or suspended attorneys permits this Court to assure the public that an attorney will not continue to practice law after becoming unlicensed”).

Exercising legal judgment as to which competing real estate form to use or giving advice about the legal effect of executing a joint-tenancy deed constitutes the “practice of law.”  State Bar v. Guardian Abstract & Title Co., Inc., 91 N.M. 434, 575 P.2d 943 (1978), appeal after remand 92 N.M. 327, 587 P.2d 1338 (also stating that filling in blanks in real estate legal instruments, where forms have been drafted by attorney and where filling in blanks requires only use of common knowledge regarding information to be inserted, does not constitute “practice of law”; but, when filling in blanks affects substantial legal rights and if reasonable protection of such rights requires legal skill and knowledge greater than that possessed by average citizen, then such practice is restricted to members of the legal profession).

The attorney in Matter of Chávez, 129 N.M. 35, 1 P.3d 417 (2000), was previously suspended from the practice of law.  He then worked at his firm as a legal assistant, and complaints were made that he withheld client funds and concealed his suspension.  The court held that only two types of legal representation are recognized litigants appearing pro se or those appearing through licensed counsel of record.  One is not authorized to undertake legal representation in any other capacity, regardless of whether one calls oneself a legal assistant, an intermediary, a scrivener, or just a friend.  It follows that a disclaimer that the non-lawyer is only providing “scrivener” or “paralegal” services is irrelevant if the non-lawyer in fact engages in unauthorized practice of law.  See also Matter of Schmidt, 931 P.2d 1386, 122 N.M. 770 (1997).

In Matter of Chávez, in which the attorney revised a settlement agreement for a client while not properly licensed, the court declined to adopt a definition of the practice of law that is limited to signing pleadings or appearing in court on another’s behalf.  Instead, it also encompasses giving legal advice and counsel, as well as interviewing clients, analyzing their issues and explaining their legal rights.  Thus, unauthorized practice of law may occur even though the unlicensed person has not entered an appearance or otherwise disclosed his participation to the court or opposing counsel.  An unlicensed person may not use a licensed attorney simply as a facade to cover up the fact that he or she is engaging in the unauthorized practice of law.

An attorney must refuse to provide ghostwriting assistance unless the purported pro se client specifically commits herself to disclosing the attorney’s assistance to the court upon filing.  Duran v. Carris, 238 F.3d 1268 (10th Cir. 2001) (also stating, under New Mexico rules, that participation by an attorney in drafting otherwise pro se appellate brief is per se substantial legal assistance, and must be acknowledged by signature).

The Supreme Court disbarred and severely chastised a lawyer for appearing in court for a client while suspended from the practice of law, among other things, in Matter of Neal, 2003 NMSC 32, 134 N.M. 594, 81 P.3d 47.  The court said the lawyer showed “disdain for the legal system,” and “[t]he duty to represent his clients’ interests fails to justify one’s failure to obtain a continuance” or to make adequate alternate arrangements for the client. 

State Bar Advisory Opinion 2001-1 advises lawyers against answering questions on a listserv or bulletin board service because of the possibility that the lawyer could be engaging in the unauthorized practice of law, depending on the location and jurisdiction of the inquiring party.   If the lawyer determines that the inquirer is in a jurisdiction within which the lawyer may practice, the committee still recommends that the lawyer include a disclaimer saying that the answer does not constitute legal advice and that the inquirer should seek the services of a lawyer.  

According to NM Attorney General Opinion 98-02, self-representation does not constitute the unauthorized practice of law.  Therefore, organizations such as corporations and acequias may represent themselves at State Engineer administrative hearings.

5.5:210   Practice of Law by Nonlawyers

In State Bar v. Guardian Abstract & Title Co., 91 N.M. 434, 575 P.2d 943 (1978), the court explained that “the close regulation of those who practice law is to protect the unwary and the uninformed from injury at the hands of persons unskilled or unlearned in the law.”

Licensed attorneys must therefore maintain meaningful communication with their clients, notwithstanding the support that legal assistants may provide.  The court explained in Matter of Houston, 127 N.M. 582, 985 P.2d 752 (1999), that the “utilization of legal assistants if firmly established in our legal system.  It is a practice that can provide cost savings to clients by allowing certain tasks to be performed by non-lawyers that otherwise would be performed by the lawyer.  A lawyer cannot, however, abdicate all responsibilities to legal assistants.  The lawyer has the primary responsibility for interacting with clients.  In this instance, respondent had the responsibility to consult with the clients, ....  Having a legal assistant conduct all meetings with the clients, during which the clients’ objectives and the means for pursuing them are discussed and decided, raises serious questions about whether respondent aided in the unauthorized practice of law in violation of Rule 16-505(B).”  See also Matter of Martinez, 107 N.M. 171, 754 P.2d 842 (1988) (an attorney violates this rule by hiring a legal assistant, but failing to make reasonable efforts to ensure that the assistant’s conduct is consistent with his own professional obligations, but not finding a violation in that case because the attorney “was not privy” to the disputed proceedings).

In Matter of Martinez, 108 N.M. 252, 771 P.2d 185 (1989), the attorney was disciplined for not withdrawing from representation in litigation following suspension of his license in a way that made sure his client was not prejudiced by the withdrawal.

If any attorney aids a person not authorized to practice law in this state to engage in practice and holds that person out as his partner in advertising, such conduct constitutes a violation of the former disciplinary rule and warrants public censure.  Matter of Bailey, 97 N.M. 88, 637 P.2d 38 (1981).

A New Mexico statute authorizing debt collection agencies to take assignments of claims in their own names as real parties in interest and to bring suit thereon, would not validate a collection agency’s “unauthorized practice of law” in bringing suit on nominally assigned claims in New Mexico district court; the regulation of the practice of law is within the exclusive constitutional prerogative of New Mexico Supreme Court.  Martínez v. Albuquerque Collection Services, Inc., 867 F. Supp. 1495 (D.N.M. 1994)See also Kolker v. Duke City Collection Agency, 750 F.Supp. 468 (D.N.M. 1990).

5.5:220   Admission and Residency Requirements for Out-of-State Lawyers

See NMR 15-101 et seq. for rules governing admission to the New Mexico Bar.  Applicants must be 21 years of age, have a suitably qualifying law degree, be of good moral character and physically and mentally fit to practice, be in good standing if ever admitted in another state, and be “professionally qualified for admission to the bar of New Mexico.”  NMR 15-103(B).

5.5:230   Pro Hac Vice Admission [see also 8.1:240]

Section 36-2-27 of the New Mexico statutes says “nothing in this section shall be construed to prohibit persons residing beyond the limits of this state, otherwise qualified, from assisting resident counsel in participating in an action or proceeding.”

In the United States District Court for the District of New Mexico, pursuant to D.N.M. LR-Civ. 83.3, an attorney residing outside New Mexico may participate in an action if the attorney is a member in good standing of the bar of any other state and associates with a resident member of the New Mexico bar who has gained admission to practice before the court as set out in D.N.M. LR-Civ. 83.2.  The resident attorney must sign the first pleading, accept service and continue in the action unless another resident member of the Federal Bar is substituted.  Otherwise, the attorney must gain admission by being a licensed member of the New Mexico bar and by gaining admission through D.N.M. LR-Civ. 83.2.

5.5:240   Performing Legal Services in Another Jurisdiction

NMR 16-505(A) prohibits lawyers from practicing law in another jurisdiction if doing so would be a violation of the regulations of the legal profession in that jurisdiction.  If a lawyer is properly licensed in another state, New Mexico does not impose any restrictions upon that lawyer’s practice of law in such state.

State Bar Advisory Opinion 2001-1 advises lawyers against answering questions on a listserv or bulletin board service because of the possibility that the lawyer could be engaging unauthorized practice of law, depending on how the inquiring party used the information the lawyer provides.

The attorney in Matter of Righter, 1999 NMSC 009,126 N.M. 730, 975 P.2d 343, was held to have violated NMR 16-505 by practicing law in the United States District Court for the District of New Mexico without proper admission to practice before that court pursuant to D.N.M. LR-Civ. 83.3.

5.5:300 Assisting in the Unauthorized Practice of Law

See Matter of Houston, 127 N.M. 582, 985 P.2d 752 (1999) (discussing attorney’s required supervisory responsibilities over legal assistants).

5.6 Rule 5.6 Restrictions on Right to Practice

5.6:100 Comparative Analysis of New Mexico Rule

“A lawyer shall not participate in offering or making:

A.        a partnership, shareholders, operating, employment or other similar type of agreement that restricts the right of a lawyer to practice after termination of the relationship, except an agreement concerning benefits upon retirement; or

B.        an agreement in which a restriction on the lawyer’s right to practice is part of the settlement of a client controversy.”

 

5.6:101   Model Rule Comparison

NMR 16-506 is identical to MR 5.6.  The Comments track one another as well.

5.6:102   Model Code Comparison

 

5.6:200 Restrictions on Lawyers Leaving a Firm

 

5.6:300 Settlements Restricting a Lawyer's Future Practice

 

5.7 Rule 5.7 Responsibilities Regarding Law-Related Services

5.7:100 Comparative Analysis of New Mexico Rule

“A.      Application of rule.  A lawyer shall be subject to the Rules of Professional Conduct with respect to the provision of law-related services, as defined in Paragraph B of this rule, if the law-related services are provided:

            (1)        by the lawyer in circumstances that are not distinct from the lawyer’s provision of legal services to clients; or

            (2)        in other circumstances by any entity controlled by the lawyer individually or with others if the lawyer fails to take reasonable measures to assure that a person obtaining the law-related services knows that the services are not legal services and that the protections of the client-lawyer relationship do not exist.

B.        Definition of “law-related services.”  The term “law-related services” denotes services that might reasonably be performed in conjunction with and in substance are related to the provision of legal services and that are not prohibited as unauthorized practice of law when provided by a non-lawyer.”

 

5.7:101   Model Rule Comparison

There are no material differences between NMR 16-507 and Comments and MR 5.7 and Comments.  NMR 16-507 was first adopted as part of the 2008 amendments.

5.7:102   Model Code Comparison

 

5.7:200 Applicability of Ethics Rules to Ancillary Business Activities