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Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.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

VIII. MAINTAINING THE INTEGRITY OF THE PROFESSION

8.1 Rule 8.1 Bar Admission and Disciplinary Matters

8.1:100 Comparative Analysis of New Mexico Rule

“An applicant or admission to the bar, or a lawyer in connection with a bar admission application or in connection with a disciplinary matter, shall not:

A.        knowingly make a false statement of material fact; or

B.        fail to disclose a fact necessary to correct a misapprehension known by the person to have arisen in the matter, or knowingly fail to respond to a lawful demand for information from an admissions or disciplinary authority, except that this rule does not require disclosure of information otherwise protected by Rule 16-106 NMRA of the Rules of Professional Conduct.”

 

8.1:101   Model Rule Comparison

There are no material differences between NMR 16-801 and Comment and MR 8.1 and Comment. 

8.1:102   Model Code Comparison

 

8.1:200 Bar Admission

Admission to the bar in New Mexico is governed by Chapter 15 of the NMRA.

8.1:210   Bar Admission Agency

 

8.1:220   Bar Admission Requirements

 

8.1:230   Admission on Motion

 

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

 

8.1:300 False Statements of Material Fact in Connection with Admission or Discipline

Membership in the New Mexico bar requires a high standard of conduct, and not merely an absence of intent to do wrong.  In re Nelson, 79 N.M. 779, 450 P.2d 188 (1969).  An untrue statement to a Supreme Court hearing committee – for instance falsely stating an adverse judgment did not include a finding of fraud – constitutes violation of the rule.  In re C’De Baca, 109 N.M. 151, 782 P.2d 1348 (1989).

8.1:400 Duty to Volunteer Information to Correct a Misapprehension

 

8.1:410   Protecting Client Confidential Information

 

8.1:500 Application of Rule 8.1 to Reinstatement Proceedings

 

8.2 Rule 8.2 Judicial and Legal Officials

8.2:100 Comparative Analysis of New Mexico Rule

“A.      Defamation.  A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory officer or public legal officer, or of a candidate for election or appointment to judicial or legal office.

B.        Judicial candidates; Code of Judicial Conduct.  A lawyer who is a candidate for judicial office shall comply with the applicable provisions of the Code of Judicial Conduct.”

 

8.2:101   Model Rule Comparison

 

8.2:102   Model Code Comparison

 

8.2:200 False Statements About Judges or Other Legal Officials

 

8.2:300 Lawyer Candidates for Judicial Office

 

8.3 Rule 8.3 Reporting Professional Misconduct

8.3:100 Comparative Analysis of New Mexico Rule

“A.     Misconduct of other lawyers.  A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects shall inform the New Mexico Disciplinary Board.

B.       Misconduct of judges.  A lawyer who knows that a judge has committed a violation of applicable rules of judicial conduct that raises a substantial question as to the judge’s fitness for office shall inform the New Mexico Judicial Standards Commission.

C.       Confidential information.  This rule does not require disclosure of information otherwise protected by Rule 16-106 NMRA of the Rules of Professional Conduct, or as set forth in Paragraph E, information gained by a lawyer or a judge while participating in an approved lawyers assistance program.

D.       Cooperation and assistance; required.  A lawyer shall give full cooperation and assistance to the highest court of the state and to the disciplinary board, hearing committees and disciplinary counsel in discharging the lawyer’s respective function and duties with respect to discipline and disciplinary procedures.

E.       Alcohol and substance abuse exception.  The reporting requirements set forth in Paragraphs A and B of this rule do not apply to any communication concerning alcohol or substance abuse by a judge or lawyer that is:

           (1)        made for the treatment of a judge or an attorney for alcohol or substance abuse; and

           (2)        made to, by or among members or representatives of the Lawyer’s Assistance Committee of the State Bar, Alcoholics Anonymous, Narcotics Anonymous or other support group recognized by the Judicial Standards Commission or the Disciplinary Board; recognition of any additional support group by the Judicial Standards Commission or the Disciplinary Board shall be published in the Bar Bulletin.

           This exception does not apply to information that is required by law to be reported, including information that must be reported under Paragraph F of this rule, or to disclosures or threats of future criminal acts or violations of these rules.

F.       Judicial misconduct involving unlawful drugs; reporting requirement.  Notwithstanding the provisions of Paragraph E, any incumbent judge who illegally sells, purchases, possesses, or uses drugs or any substance considered unlawful under the provisions of the Controlled Substances Act, shall be subject to discipline under the Code of Judicial Conduct.

           Any lawyer who has specific objective and articulable facts or reasonable inferences that can be drawn from those facts, that a judge has engaged in such misconduct, shall report these facts to the New Mexico Judicial Standards Commission.  Reports of such misconduct shall include the following information:

           (1)        name of person filing the report;

           (2)        address and telephone number where the person may be contacted;

           (3)        a detailed description of the alleged misconduct;

           (4)        dates of the alleged misconduct; and

           (5)        any supporting evidence or material that may be available to the reporting person.

           The Judicial Standards Commission shall review and evaluate reports of such misconduct to determine if the report warrants further review or investigation.”

 

8.3:101   Model Rule Comparison

Paragraphs A, B, and C of NMR 16-803 are substantially identical to MR 8.3.  The New Mexico Supreme Court, however, has added provisions not found in the Model Rule–Paragraphs D, E, and F, which require a lawyer’s cooperation in disciplinary matters, reporting concerning alcohol and substance abuse by lawyers and judges, and reporting of judicial misconduct involving unlawful drugs.  The New Mexico Rule also contains a comment not found in the Model Rule concerning its unique provisions, and encouragement by the New Mexico Supreme Court for reporting of judicial conduct involving illegal drugs to the Lawyer Assistance Committee hotline.

8.3:102   Model Code Comparison

Reported decisions in New Mexico concerning NMR 16-803 often relate to an attorney’s duty to cooperate with disciplinary proceedings.  In In re Carrasco, 106 N.M. 294, 742 P.2d 506 (1987), an attorney violated NMR 16-803(D) when he failed to file an answer to a disciplinary proceeding, did not request a hearing, and failed to appear before the Supreme Court.

8.3:200 Mandatory Duty to Report Serious Misconduct

 

8.3:300 Reporting the Serious Misconduct of a Judge

 

8.3:400 Exception Protecting Confidential Information

 

8.4 Rule 8.4 Misconduct

8.4:100 Comparative Analysis of New Mexico Rule

“It is professional misconduct for a lawyer to:

A.        violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so or do so through the acts of another;

B.        commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects;

C.        engage in conduct involving dishonesty, fraud, deceit or misrepresentation;

D.        engage in conduct that is prejudicial to the administration of justice;

E.         state or imply an ability to influence improperly a government agency or official or to achieve results by means that violate the Rules of Professional Conduct or other law; or

F.         knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law.”

 

8.4:101   Model Rule Comparison

There are no material differences between NMR 16-804 and MR 8.4.  Accordingly, following the 2008 amendments, “professional misconduct” no longer expressly includes “conduct that adversely reflects on [the lawyer’s] fitness to practice law.”  The Comments to NMR 16-804 track the ABA Commentary as well.

8.4:102   Model Code Comparison

 

8.4:200 Violation of a Rule of Professional Conduct

 

8.4:300 Commission of a Crime

The commission of a crime by a lawyer generally results in suspension or disbarment, as illustrated by Matter of Key, 2005-NMSC-014, 137 N.M. 517, 113 P.3d 340. The Supreme Court reviewed the propriety of a sanction ordered against an attorney for violating NMR 16-804 in connection to his federal tax fraud conviction.  When determining the proper sanction for the attorney, the Court recognized the following mitigating factors in his favor: (1) the attorney self-reported his conviction and cooperated fully with the office of disciplinary counsel; (2) the attorney had no prior disciplinary record; (3) the attorney was reputed a competent and ethical attorney; (4) the attorney cooperated with federal authorities; (5) the attorney expressed remorse for his misconduct; and (6) the attorney had other penalties imposed against him.  On the other hand, the fact that the attorney committed a serious crime, exhibited a dishonest or selfish motive, and had substantial experience in the practice of law, were aggravating factors.  The Court explained the purpose of attorney discipline is to protect the public and the public’s perception of the profession and legal system.  In general, attorneys found to have committed criminal acts are suspended or disbarred.  The Court found that although a very limited exception to this rule might exist, it was not warranted in this case.

In Matter of Stein, 2008-NMSC-013, 143 N.M. 462, 177 P.3d 513, the Supreme Court reviewed the disciplinary recommendation of disbarment for an attorney found to have engaged in a very long series of unethical behavior in connection with a wife and her incapacitated husband’s financial and personal affairs.  The Court determined that NMR 16-102, 107, 109, 804 and 402 were violated by the attorney and disbarred the attorney from the practice of law for at least five years.

In disciplinary proceedings when fraud has not been alleged, the standard of proof is a preponderance of the evidence.  In re D’Angelo, 105 N.M. 391, 733 P.2d 360 (1986).

New Mexico jurisprudence contains numerous additional cases dealing with individual instances of attorney misconduct.  Examples include In re Greenfield, 1996-NMSC-015, 121 N.M. 633, 916 P.2d 833 (failure of an attorney to properly maintain his trust account records constituted attorney misconduct and, coupled with other violations, warranted disbarment); In re Roberts, 119 N.M. 769, 895 P.2d 669 (1995) (failure of attorney to docket an appeal and lying to his client for seven years about the status of the appeal violated numerous rules and warranted indefinite suspension from practice); In re Trujillo, 110 N.M. 180, 793 P.2d 862 (1990) (attorney was properly suspended where he accepted one-half of fee and failed to represent client, allowing default to be entered against client); In re Wilson, 108 N.M. 378, 772 P.2d 1301 (1989) (lawyer who stole funds from various clients by forging their names on settlement checks and withdrawal slips on accounts maintained by clients was disbarred); In re McCulloch, 103 N.M. 542, 710 P.2d 736 (1985) (disbarment was appropriate for an attorney who was convicted of tampering with evidence and making a false report); and In re Bloomfield, 1996-NMSC-017, 121 N.M. 605, 916 P.2d 224 (NMR 16-804 was violated where attorney pursued a baseless claim and then ignored efforts to dispose of the claim, as this amounted to conduct prejudicial to the administration of justice).

8.4:400 Dishonesty, Fraud, Deceit and Misrepresentation

 

8.4:500 Conduct Prejudicial to the Administration of Justice

 

8.4:600 Implying Ability to Influence Public Officials

 

8.4:700 Assisting Judge or Official in Violation of Duty

 

8.4:800 Discrimination in the Practice of Law

 

8.4:900 Threatening Prosecution

 

8.5 Rule 8.5 Disciplinary Authority; Choice of Law

8.5:100 Comparative Analysis of New Mexico Rule

“A lawyer admitted to practice in this jurisdiction is subject to the disciplinary authority of this jurisdiction regardless of where the lawyer’s conduct occurs.  A lawyer not admitted in this jurisdiction is also subject to the disciplinary authority of this jurisdiction if the lawyer provides or offers to provide any legal services in this jurisdiction.  A lawyer may be subject to the disciplinary authority of both this jurisdiction and another jurisdiction for the same conduct.”

8.5:101   Model Rule Comparison

Mexico has not adopted Paragraph B of MR 8.5, concerning choice of law in any exercise of the disciplinary authority of this jurisdiction.  Likewise, the New Mexico Commentary omits the ABA Comments concerning choice of law in discipline.

8.5:102   Model Code Comparison

 

8.5:200 Disciplinary Authority

In cases where New Mexico attorneys confer with out-of-state counsel for corporate clients involved in litigation in New Mexico, attorneys licensed to practice in New Mexico have an independent duty to the New Mexico judiciary to obey New Mexico’s ethical and discovery rules, regardless of the opinion of out-of-state counsel.  In re Estrada, 2006-NMSC-047, 140 N.M. 492, 143 P.3d 731.

8.5:300 Choice of Law