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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

Primary New Mexico References: NM Rule 16-501
Background References: ABA Model Rule 5.1, Other Jurisdictions
Commentary:
New Mexico Commentary:

5.1:101 Model Rule Comparison

5.1:102 Model Code Comparison

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

Primary New Mexico References: NM Rule 16-501(a)
Background References: ABA Model Rule 5.1(a), Other Jurisdictions
Commentary: ABA/BNA § 91:201, ALI-LGL § 11, Wolfram § 16.2
New Mexico Commentary:

5.1:300 Monitoring Duty of Supervising Lawyer

Primary New Mexico References: NM Rule 16-501(b)
Background References: ABA Model Rule 5.1(b), Other Jurisdictions
Commentary: ABA/BNA § 91:201, ALI-LGL § 11, Wolfram § 16.2
New Mexico Commentary:

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

Primary New Mexico References: NM Rule 16-501(c)
Background References: ABA Model Rule 5.1(c), Other Jurisdictions
Commentary: ABA/BNA § 91:201, ALI-LGL § 5, Wolfram § 16.2
New Mexico Commentary:

5.1:500 Vicarious Liability of Partners

Primary New Mexico References: NM Rule 16-501
Background References: ABA Model Rule 5.1, Other Jurisdictions
Commentary: ABA/BNA § 91:201, ALI-LGL §§ 8, 9
New Mexico Commentary:

5.2 Rule 5.2 Responsibilities of a Subordinate Lawyer

5.2:100 Comparative Analysis of New Mexico Rule

Primary New Mexico References: NM Rule 16-502
Background References: ABA Model Rule 5.2, Other Jurisdictions
Commentary:
New Mexico Commentary:

5.2:101 Model Rule Comparison

5.2:102 Model Code Comparison

5.2:200 Independent Responsibility of a Subordinate Lawyer

Primary New Mexico References: NM Rule 16-502(a)
Background References: ABA Model Rule 5.2(a), Other Jurisdictions
Commentary: ABA/BNA § 91:201, ALI-LGL § 5, Wolfram § 16.2
New Mexico Commentary:

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

Primary New Mexico References: NM Rule 16-502(b)
Background References: ABA Model Rule 5.2(b), Other Jurisdictions
Commentary: ABA/BNA § 91:201, ALI-LGL § 5, Wolfram § 16.2
New Mexico Commentary:

5.3 Rule 5.3 Responsibilities Regarding Nonlawyer Assistants

5.3:100 Comparative Analysis of New Mexico Rule

Primary New Mexico References: NM Rule 16-503
Background References: ABA Model Rule 5.3, Other Jurisdictions
Commentary:
New Mexico Commentary:

5.3:101 Model Rule Comparison

5.3:102 Model Code Comparison

5.3:200 Duty to Establish Safeguards

Primary New Mexico References: NM Rule 16-503(a)
Background References: ABA Model Rule 5.3(a), Other Jurisdictions
Commentary: ABA/BNA § 91:201, ALI-LGL §§ 4, 5, Wolfram § 16.3
New Mexico Commentary:

5.3:300 Duty to Control Nonlawyer Assistants

Primary New Mexico References: NM Rule 16-503(b)
Background References: ABA Model Rule 5.3(b), Other Jurisdictions
Commentary: ABA/BNA § 21:8601, ALI-LGL §§ 4, 5, Wolfram § 16.3
New Mexico Commentary:

5.3:400 Responsibility for Misconduct of Nonlawyer Assistants

Primary New Mexico References: NM Rule 16-503(c)
Background References: ABA Model Rule 5.3(c), Other Jurisdictions
Commentary: ABA/BNA § 91:201, ALI-LGL §§ 4, 5, Wolfram § 16.3
New Mexico Commentary:

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

5.4:100 Comparative Analysis of New Mexico Rule

Primary New Mexico References: NM Rule 16-504
Background References: ABA Model Rule 5.4, Other Jurisdictions
Commentary:
New Mexico Commentary:

5.4:101 Model Rule Comparison

5.4:102 Model Code Comparison

5.4:200 Sharing Fees with a Nonlawyer

Primary New Mexico References: NM Rule 16-504(a)
Background References: ABA Model Rule 5.4(a), Other Jurisdictions
Commentary: ABA/BNA § 41:801, ALI-LGL § 60, Wolfram §§ 16.4, 16.5
New Mexico Commentary:

5.4:300 Forming a Partnership with Nonlawyers

Primary New Mexico References: NM Rule 16-504(b)
Background References: ABA Model Rule 5.4(b), Other Jurisdictions
Commentary: ABA/BNA § 91:401, ALI-LGL § 60, Wolfram §§ 16.4, 16.5
New Mexico Commentary:

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

Primary New Mexico References: NM Rule 16-504(c)
Background References: ABA Model Rule 5.4(c), Other Jurisdictions
Commentary: ABA/BNA § 51:901, ALI-LGL § 60, Wolfram § 8.8
New Mexico Commentary:

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

Primary New Mexico References: NM Rule 16-504(d)
Background References: ABA Model Rule 5.4(d), Other Jurisdictions
Commentary: ABA/BNA § 91:401, ALI-LGL § 60, Wolfram § 16.4, 16.5
New Mexico Commentary:

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

Primary New Mexico References: NM Rule 16-505
Background References: ABA Model Rule 5.5, Other Jurisdictions
Commentary:
New Mexico Commentary:

ËA lawyer shall not:

A. practice law in a jurisdiction where doing so violates the regulation of the legal profession in that jurisdiction;

B. assist a person who is not a member of the bar in the performance of activity that constitutes the unauthorized practice of law;

C. employ or continue the employment of a disbarred or suspended lawyer as an attorney; or

D. 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.Ó

5.5:101 Model Rule Comparison

NMR 16-505(A) & (B) set forth the same prohibitions as are found in MR 5.5(a) & (b). However, the New Mexico rule (as amended effective September 1987) adds two more restrictions concerning the unauthorized practice of law. They are: (C) a lawyer may not Ëemploy or continue the employment of a disbarred or suspended lawyer as an attorney;Ó and (D) a lawyer may not Ëemploy 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.Ó

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(B).

5.5:200 Engaging in Unauthorized Practice

Primary New Mexico References: NM Rule 16-505(a)
Background References: ABA Model Rule 5.5(a), Other Jurisdictions
Commentary: ABA/BNA § 21:8001, ALI-LGL §§ 3, 4, Wolfram § 15.1
New Mexico Commentary:

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 ËNo 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 Ëshall 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 proceedingÓ).

According to NMR 15-101, a rule adopted and promulgated by the New Mexico Supreme Court, the ËÇpractice of lawÁ means being actively and continuously engaged in full-time gainful employment in the performance of legal services.Ó ËLEGAL ServicesÓ means Ëadvising, advocating or counseling to or for others as to a matter involving law which may not be lawfully performed by a nonlawyer.Ó The Supreme Court determines what constitutes the practice of law on a case-by-case basis. Matter of Chvez, 129 N.M. 35, 1 P.3d 417 (2000) (also explaining that Ëone 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 unlicencedÓ).

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 Ëpractice of law.Ó 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 Ëpractice of lawÓ; 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 Chvez, 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 ËscrivenerÓ or ËparalegalÓ 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 Chvez, 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 anotherÁs 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 attorneyÁs 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 Ëdisdain for the legal system,Ó and Ë[t]he duty to represent his clientsÁ interests fails to justify oneÁs failure to obtain a continuanceÓ 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 Ëthe 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.Ó

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 Ëutilization 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 clientsÁ 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).Ó 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 assistantÁs conduct is consistent with his own professional obligations, but not finding a violation in that case because the attorney Ëwas not privyÓ 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 agencyÁs Ëunauthorized practice of lawÓ 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. Mart'nez 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 Ëprofessionally qualified for admission to the bar of New Mexico.Ó 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 Ënothing 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.Ó

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 lawyerÁs practice of law in such state.

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

Primary New Mexico References: NM Rule 16-505(b)
Background References: ABA Model Rule 5.5(b), Other Jurisdictions
Commentary: ABA/BNA § 21:8201, ALI-LGL § 4, Wolfram § 15.1
New Mexico Commentary:

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