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Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.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

1.16 Rule 1.16 Declining or Terminating Representation

1.16:100 Comparative Analysis of New Mexico Rule

“A.      Mandatory disqualification.  Except as stated in Paragraph C, a lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if:

            (1)        the representation will result in violation of the Rules of Professional Conduct or other law;

            (2)        the lawyer's physical or mental condition materially impairs the lawyer's ability to represent the client; or

            (3)        the lawyer is discharged.

B.        Permissive withdrawal.  Except as stated in Paragraph C, a lawyer may withdraw from representing a client if:

(1)        withdrawal can be accomplished without material adverse effect on the interests of the client;

(2)        the client persists in a course of action involving the lawyer's services that the lawyer reasonably believes is criminal or fraudulent;

            (3)        the client has used the lawyer's services to perpetrate a crime or fraud;

            (4)        the client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement;

            (5)        the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer's services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled;

            (6)        the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client; or

            (7)        other good cause for withdrawal exists.

C.        Representation required.  A lawyer must comply with applicable law requiring notice to or permission of a tribunal when terminating a representation.  When ordered to do so by a tribunal, a lawyer shall continue representation notwithstanding good cause for terminating the representation.

D.        Orderly termination.  Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interest, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee or expense that has not been earned or incurred.  The lawyer may retain papers relating to the client to the extent permitted by other law.”

1.16:101   Model Rule Comparison

There are no material differences between NMR 16-116 and MR 1.16.

1.16:102   Model Code Comparison

A close equivalent to NMR 16-116 is in the Code at DR 2-110. This provision generally contains the same requirements and objectives as NMR 16-116, and similarly contains subsections governing permissive withdrawal and mandatory withdrawal. Variances from NMR 16-115 include DR 2-110(B)(1)(a), which states that a lawyer must withdraw if "he knows or it is obvious that his client is bringing the legal action, conducting the defense, or asserting a position in the litigation, or is otherwise having steps taken for him, merely for the purpose of harassing or maliciously injuring any person;" and DR 2-110(C)(1)(a), which states that a lawyer may withdraw if his client "insists upon presenting a claim or defense that is not warranted under existing law and cannot be supported by good faith argument for an extension, modification, or reversal of existing law." See also EC 2-30, EC 2-31, EC 2-32, DR 2-103(E), DR 2-104(A), DR 2-109(A), and EC 1-6.

1.16:200 Mandatory Withdrawal

In addition to the text of NMR 16-116, see State Bar Advisory Opinion 1995-1 (withdrawal may be necessary where the client so greatly limits the representation that the lawyer cannot exercise professional judgment), and Comments [2] to [5].

1.16.210          Discharge by Client

The client has the inherent right to terminate the lawyer; the lawyer should always counsel the client regarding the consequences of termination.  State Bar Advisory Opinion 1995-1. 

1.16:220          Incapacity of Lawyer

NMR 16-116 places a duty on each lawyer to withdraw from the representation of clients if the lawyer’s physical or mental health materially impair the lawyer’s ability to represent clients.  Matter of Martin, 127 N.M. 321, 980 P.2d 646 (1999) (stating that if a physical condition is chronic and materially impairs the lawyer’s ability to represent a client, the attorney is obligated by NMR 16-116(A) to decline to represent a potentially new client, or where representation has commenced, to withdraw from representation, and if the lawyer fails to act appropriately, not only will the physical condition not be a defense to the charges or a mitigating factor, it may be part of the proof that ethical violations occurred); see also Matter of O’Brien, 130 N.M. 643, 29 P.3d 1044 (2001) (NMR 16-116(A) “compels lawyers not to undertake representation, or, if undertaken, to withdraw from the representation, if the lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client.  Clients cannot be left floundering with no direction and no communication”).

1.16:230          Withdrawal to Avoid Unlawful Conduct

In addition to the text of NMR 16-116, see State Bar Advisory Advisory Opinion 1995-1 (lawyer may need to withdraw where a conflict arises from the client directing the lawyer to accomplish the representation through means that conflict with the lawyer’s duties to the court or under the Rules of Professional Conduct); State Bar Advisory Opinion 1989-2 (a lawyer should withdraw if a client insists upon paying the lawyer with $10,000 or more in cash and not disclosing the transaction to the Internal Revenue Service, as required by a federal statute); and State Bar Advisory Opinion 1986-10 (a lawyer must withdraw where he acquires information indicating that his client’s claim would require the use of perjured testimony or false evidence).

1.16:240   Legal Action for the Purpose of Harassing or Maliciously Injuring Any Person

1.16:300 Permissive Withdrawal

1.16:310   Withdrawal to Undertake Adverse Representation

1.16:320   Circumstances Justifying Discretionary Withdrawal

Pursuant to NMR 16-116(B), a lawyer may withdraw from representing a client if withdrawal can be accomplished without material adverse effect on the interests of a client, and a lawyer shall take steps in terminating to the extent reasonably practicable to protect the client’s interests.  Sanders, Bruin, Coll & Worley v. McKay Oil Corp., 123 N.M. 457, 943 P.2d 104 (1997); see also NMR 16-116 Comments [7] to [8].

NMR 16-116 contemplates allowing attorneys to withdraw if they are not being paid for their services.  Corn v. New Mexico Educators Fed. Credit Union, 119 N.M. 199, 889 P.2d 234 (Ct. App. 1994) (observing counsel may withdraw from representation when it will result in unreasonable financial burden on lawyer).  See also State Bar Advisory Opinion 1987-9 (a lawyer may withdraw if the client’s failure to pay is substantial, and the client is warned the lawyer will withdraw unless the obligations to the lawyer are fulfilled).  However, after accepting the advance payment of a flat fee, a lawyer may not threaten to prejudice a client’s interests by terminating the representation at a critical stage of the proceedings to coerce payment of additional fees.  Matter of Dawson, 8 P.3d 856, 129 N.M. 369 (2000).

Under NMR 16-116(B), it was appropriate for attorneys to seek permission to withdraw because the representation would result in an unreasonable financial burden, but that since withdrawal would have a material adverse effect on the interest of the client, the proper remedy was a stay of execution.  State v. Young, 2007-NMSC-058, 143 N.M. 1, 172 P.3d 138. In this case, the Supreme Court reviewed an order denying an interlocutory appeal by capital murder defendants arguing ineffective assistance of counsel due to the fact that the Public Defender’s Office had insufficient funding to pay the attorneys and they believed it would result in a violation of the defendants’ Sixth Amendment right to effective assistance of counsel. 

1.16:400 Order by Tribunal to Continue Representation

In litigation, the lawyer must continue representation of the client until permission to withdraw is received from the court, and if permission is denied, the lawyer must continue the representation.  State Bar Advisory Opinion 1995-1.

1.16:500 Mitigating Harm to Client Upon Withdrawal

Numerous New Mexico cases illustrate the principle that a lawyer must mitigate the harm to a client upon withdrawal; many of these cases refer to NMR 16-116 in the context of an attorney discipline proceeding.  See, e.g., Matter of Roth, 105 N.M. 255, 731 P.2d 951 (1987) (attorney neglected matters and abandoned clients; found that attorney failed to take steps to insure that interests of client were protected upon withdrawal); Matter of Fandey, 118 N.M. 590, 884 P.2d 481 (1994) (attorney failed to notify client of closing of his office or termination of representation); Matter of Lally, 126 N.M. 566, 973 P.2d 243 (1999) (attorney neglected matter, then engaged in deceptive conduct intended to convince client matter was being pursued); Matter of Quintana, 130 N.M. 627, 29 P.3d 527 (2001) (if an attorney is suspended or disbarred, the obligations of NMR 17-212 regarding notice to clients, courts and opposing counsel are activated; failure to comply with these requirements may constitute a violation of NMR 16-116(D)); and Matter of Romero, 130 N.M. 190, 22 P.2d 215 (2001) (in taking steps necessary to protect client’s interests upon withdrawal, lawyer must undertake “reasonable” measures, which means “the conduct of a reasonably prudent and competent lawyer” based on an objective standard).

See also Matter of Carlton, 128 N.M. 419, 993 P.2d 736 (2000) (noting failure to timely surrender papers and property to which a client was entitled upon termination); Matter of Lally, 126 N.M. 566, 973 P.2d 243 (1999) (same); Matter of Hamar, 123 N.M. 795, 945 P.2d 1013 (1997) (same); and Matter of Darnell, 123 N.M. 323, 940 P.2d 171 (1997) (same).

In addition, suspension from the practice of law involuntarily terminates the representation, but it does not extinguish the lawyer’s responsibility to protect client interests.  Matter of Quintana, 29 P.3d 527, 130 N.M. 627 (2001), see also NMR 16-116 Comment [9].

1.16:600 Fees on Termination

NMR 16-116(D) requires a lawyer to refund any advance payment of fees that has not been earned upon termination of representation.  Matter of Dawson, 8 P.3d 856, 129 N.M. 369 (2000) (also stating that failure to refund the unearned portion of the fee may interfere with the client’s right to discharge the lawyer under NMR 16-116(A)(3)).

A lawyer may be entitled to fees on a quantum meruit basis where she continues the representation following refusal to grant permission to withdraw by the court.  State Bar Advisory Opinion 1995-1.

1.16:610   Termination of Lawyer's Authority [see 1.2:270]

See section 1.2:270 supra.