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1.9:100 Comparative Analysis of New Mexico Rule
- Primary New Mexico References: NM Rule 16-109
- Secondary New Mexico Reference: Comment to NMR 16-102 (see Appendix attached)
- Background References: ABA Model Rule 1.9, Other Jurisdictions
- New Mexico Commentary:
“A. Subsequent representation. A lawyer who has formerly represented a client in a mater shall not thereafter represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing.
B. Subsequent representation; former law firm. A lawyer shall not knowingly represent a person in the same or substantially related matter in which a firm with which the lawyer formerly was associated had previously represented a client:
(1) whose interests are materially adverse to that person; and
(2) about whom the lawyer had acquired information protected by Rule 16-106 NMRA and Paragraph C of Rule 16-109 NMRA of the Rules of Professional Conduct that is material to the matter, unless the former client gives informed consent, confirmed in writing.
C. Former representation. A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in the matter shall not thereafter:
(1) use information relating to the representation to the disadvantage of the former client except as these rules would permit or require with respect to a client, or when the information has become generally known; or
(2) reveal information relating to the representation except as these rules would permit or require with respect to a client.”
Paragraphs (A) and (B) of NMR 16-109 have no direct counterpart in the Disciplinary Rules of the Model Code, as the official ABA commentary to MR 1.9 has noted. The issues addressed in paragraph (A) were sometimes considered under the “appearance of impropriety” standard found in Canon 9 of the Model Code.
1.9:200 Representation Adverse to Interest of Former Client--In General
- Primary New Mexico References: NM Rule 16-109(A)
- Background References: ABA Model Rule 1.9(a), Other Jurisdictions
- Commentary: ABA/BNA § 51:201, ALI-LGL § 132, Wolfram § 7.4
- New Mexico Commentary:
NMR 16-109 establishes the general rules regarding representation adverse to a former client; see also NMR 16-109 Comments  to . The rule imposes two prohibitions on attorneys. NMR 16-109(A) prohibits a lawyer from “representing another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client.” A former client may waive this prohibition if he or she consents after consultation. The 2008 amendments eliminated the express prohibition in former NMR 16-109(B) against using information gained during the representation of a former client to that former client’s disadvantage.
NMR 16-109(A) prohibits a lawyer from representing “another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client.”
This substantial relationship test “is the keystone of the law on conflicts of interest involving former clients,” according to State v. Barnett, 125 N.M. 739, 744, 965 P.2d 323, 328 (Ct. App. 1998), citing ABA/BNA Lawyers Manual on Professional Conduct 51:214 (1992). The test “turns on the possibility, or appearance thereof, that confidential information might have been given to the attorney in relation to the subsequent matter in which disqualification is sought.” Id., citing State Bar Advisory Opinion 1984-8. Because the test functions in this way, any inquiry focuses on “the possibility of disclosure and not whether actual confidences were disclosed,” which results in a “presumption that confidential information was disclosed in cases that are substantially related.”
In State v. Barnett, the criminal prosecutor had previously represented the defendant in a defense capacity. The defendant sought the disqualification of the prosecutor, contending there was a substantial relationship between the two matters inasmuch as the prosecutor was using the first matter to charge him as a habitual offender in the second matter. The court held the matters were substantially related, and that a conflict of interest was present. The court noted the possibility that information gained by the prosecutor when she was the defendant’s defense lawyer could be used to his disadvantage. “A defendant could be seriously prejudiced by the prosecutor’s knowledge regarding the defendant’s character and conduct acquired in prior representation.” 125 N.M. at 745, 965 P.2d at 329.
In a case decided under New Mexico’s version of the Code of Professional Responsibility, which has now been supplanted by the Rules of Professional Conduct, the New Mexico Supreme Court held that attorney disqualification from a case in which the opposing party is the attorney’s former client is mandatory only when relationship between the prior representation and present litigation is “patently clear.” Further, even if the relationship between the past and present representations is not clear at the outset so as to justify disqualification, the court may later disqualify if, during trial, it appears that the attorney may be using confidential information against the former client. Leon, Ltd. v. Carver, 104 N.M. 29, 32, 715 P.2d 1080, 1083 (1986), citing Silver Chrysler Plymouth, Inc. v. Chrysler Motors Corp., 518 F.2d 751, 754 (2d Cir. 1975). In addition, whether the relationship between the two matters is “substantial” or “patently clear” requires a three-tiered analysis: “(1) a factual reconstruction of the scope of the prior legal representation, (2) a determination of whether it is reasonable to presume that the lawyer would have received confidential information of the type alleged by his former client; and (3) a determination of whether the alleged confidential information is relevant to the issues raised in the litigation pending against the former client.” 104 N.M. at 31, 715 P.2d at 1082, citing United Nuclear Corp. v. General Atomic Co., 96 N.M. 155, 629 P.2d 231 (1980); and Westinghouse Electric Corp. v. Gulf Oil Corp., 588 F.2d 221 (7th Cir. 1978). Disqualification “is mandatory only when the relationship between the prior representation and present litigation was patently clear.” Id., 104 N.M. at 32, 715 P.2d at 1083.
Where, however, there is a substantial relationship between the former representation and subsequent litigation, counsel’s disqualification is required. United Nuclear Corp. v. General Atomic Co., 96 N.M. 155, 629 P.2d 231 (1980) cert. denied 451 U.S. 901 (1981)(decided under former rules). In that case, counsel in question represented the plaintiff in a lawsuit against the defendant regarding a particular piece of property, while at the same time represented the defendant in its ownership of the property. The court found a lawsuit against one’s current client violated the ethical duty of confidentiality, particularly when counsel was involved in activities regarding the subject of the lawsuit.
The court in Leon, Ltd. v. Carver, 104 N.M. 29, 32, 715 P.2d 1080, 1083 (1986), further stated that a trial court, in determining whether an attorney who had formerly represented one party should be disqualified from representing another party in the present litigation, may not inquire whether actual confidences had been disclosed during the prior representation.
In Richter v. Van Amberg, 97 F. Supp. 2d 1255 (D.N.M. 2000), the court found that substantially related matters were not present for purposes of NMR 16-109(A). In the case, which included claims of legal malpractice and deceit, the defendant lawyer had represented the plaintiff in 1987 in a real estate and partnership transaction. Later, the defendant represented another party in a real estate transaction that turned sour for the plaintiff. The court held that no violation of NMR 16-109(A) occurred in the case. The court reasoned that “merely because both representations involved Santa Fe real estate does not establish a substantial relationship.” Additionally, no information from the 1987 representation was used by the lawyer in the subsequent representation which turned adverse for the plaintiff. Thus, the consent of the plaintiff to the subsequent representation was unnecessary, because no substantial relationship or use of confidential information obtained during a previous representation was present.
Further, in a case arising from New Mexico, the United States Court of Appeals for the Tenth Circuit determined that the party seeking to disqualify opposing counsel on grounds of a former representation must establish that an actual attorney-client relationship existed between the movant and opposing counsel, that the present litigation involves a matter that is substantially related to the subject of the movant’s prior representation, and that the interests of the opposing counsel’s present client are materially adverse to the movant. Cole v. Ruidoso Mun. Schools, 43 F.3d 1373 (10th Cir. 1994) (also stating that to protect client confidentiality, party moving for disqualification of opposing counsel on ground of a former representation need not reveal substance of its communication to counsel, for this would defeat purpose of disqualification; usually, showing of circumstances and subject of consultation will be enough to demonstrate whether information was confidential).
See also State Bar Advisory Opinion 1988-5 (a lawyer who drafted an antenuptial agreement on behalf of husband may not represent wife in the subsequent divorce, absent the husband’s consent; in addition, the lawyer may not use the husband’s confidences against husband in any representation of wife in the divorce); State Bar Advisory Opinion 1986-3; and State Bar Advisory Opinion 1986-1 (former City Attorney).
NMR 16-109(A) prohibits a lawyer from representing “another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client.” Once a client becomes a former client, a lawyer is not barred forevermore from taking positions adverse to that client. State v. Martínez, 100 N.M. 532, 673 P.2d 509 (Ct. App. 1996).
While no New Mexico case decided after the New Mexico Supreme Court adopted New Mexico’s version of the Rules of Professional Conduct uses the phrase “appearance of impropriety” or makes reference to Canon 9 of the Code of Professional Responsibility, in State v. Barnett, 125 N.M. 739, 965 P.2d 323 (Ct. App. 1998), the court quoted the following language from the ABA/BNA Lawyers Manual on Professional Conduct § 51:214 (1992): “[t]he determination of whether there is a substantial relationship turns on the possibility, or appearance thereof, that confidential information might have been given to the attorney in the subsequent matter.”
1.9:300 Client of Lawyer's Former Firm
- Primary New Mexico References: NM Rule 16-109(B)
- Background References: ABA Model Rule 1.9(b), Other Jurisdictions
- Commentary: ABA/BNA § 51:2001, ALI-LGL §§ 123, 124, 133, Wolfram § 7.6
- New Mexico Commentary:
Paragraph (B) of NMR 16-109 was added under the 2008 amendments. It generally prohibits lawyers from acting adversely to clients of their former firm, where they have confidential information about the client; see also NMR 16-109 Comments  to .
1.9:320 Former Government Lawyer or Officer [see 1.11:200]
1.9:400 Use or Disclosure of Former Client's Confidences
- Primary New Mexico References: NM Rule 16-109(C)
- Background References: ABA Model Rule 1.9(c), Other Jurisdictions
- Commentary: ABA/BNA § 55:501-55:2001, ALI-LGL § 132, Wolfram §§ 6.7 and 7.4
- New Mexico Commentary:
In Matter of Silverberg, 108 N.M. 768, 779 P.2d 546 (1989), a client filed a complaint with the state Disciplinary Board after the lawyer made questionable use of an advance of the client’s legal fees, and allegedly “churned” work in order to earn fees. In an effort to “get even” with the client, the lawyer used a deposition taken of the client in a civil matter in which he represented the client for the purpose of charging the client with perjury. The lawyer was only aware that the deposition amounted to perjury because of information he had gained during his representation. The court held that the lawyer’s open accusations and descriptions of his former client’s perjury in court “constituted disclosure of the confidential communication he had with [the client]” during his previous representation.” 108 N.M. at 769 70, 779 P.2d at 547 48.
In another case, Matter of C’De Baca, 109 N.M. 151, 782 P.2d 1348 (1989), a lawyer agreed to prepare a will for a client, and during the course of preparing the will, he learned that the client had a substantial sum of money in bank certificates of deposit. A few months after completion of the will, the lawyer approached the former client about investing in the lawyer’s personal business ventures. Based on the lawyer’s advice (even though he was not her attorney at the time), the former client used the money in her certificates of deposit as collateral to make loans for the lawyer’s business ventures. The lawyer never made any payments to the former client, and as a result, the former client lost her home in a foreclosure proceeding. The court held that such conduct violated NMR 16-109(B), because the lawyer used his knowledge of the fact that the former client had a substantial sum of money “To her disadvantage and financial ruin.” 109 N.M. at 152, 782 P.2d at 1349.
See also State Bar Advisory Opinion 1987-4 (while a lawyer must maintain the confidences of his former client, the lawyer is not required to cooperate with new counsel for his former client for the purpose of being a witness in a matter for the former client); and NMR 16-109 Comments  to .