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Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.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

1.18 Rule 1.18 Duties to Prospective Clients

1.18:100 Comparative Analysis of New Mexico Rule

“A.      Definition of “prospective client.”  A person who discusses with a lawyer the possibility of forming a client-lawyer relationship with respect to a matter is a prospective client.

B.        Confidential information.  Even when no client-lawyer relationship ensues, a lawyer who has had discussions with a prospective client shall not use or reveal information learned in the consultation, except as Rule 16-109 NMRA of the Rules of Professional Conduct would permit with respect to information of a former client.

C.        Certain representations prohibited.  A lawyer subject to Paragraph B of this rule shall not represent a client with interests materially adverse to those of a prospective client in the same or a substantially related matter if the lawyer received information from the prospective client that could be significantly harmful to that person in the matter, except as provided in Paragraph D of this rule.  If a lawyer is disqualified from representation under this paragraph, no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in such a matter, except as provided in Paragraph D.

D.        When representation is permitted.  When the lawyer has received disqualifying information as defined in Paragraph C, representation is permissible if:

            (1)        both the affected client and the prospective client have given informed consent, confirmed in writing; or

            (2)        the lawyer who received the information took reasonable measures to avoid exposure to more disqualifying information than was reasonably necessary to determine whether to represent the prospective client; and

                        (a)        the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom; and

                        (b)        written notice is promptly given to the prospective client.”


1.18:101   Model Rule Comparison

Except for its section headings, NMR 16-118 is substantially identical to MR 1.18.  It should be noted that prior to the 2008 amendments, the NMR did not contain a rule or other guidance regarding duties to prospective clients.  See also section 1.1:330 supra (discussing Garcia v. Rodey, Dickason, Sloan, Akin & Robb, P.A., 106 N.M. 757, 750 P.2d 118 (1988) (plaintiff in attorney malpractice action must establish defendant attorney represented him or her).  See also NMR 16-102 and Comment.

1.18:200 Definition of "Prospective Client"


1.18:300 Confidentiality of Communications with a Prospective Client


1.18:400 Conflicts of Interest Arising Out of Communications with a Prospective Client


1.18:410   Conflict with an Existing Client


1.18:420   Consent of Prospective Client to an Existing Conflict of Interest


1.18:430   Screening to Cure an Imputed Conflict of Interest