The Ethics Advisory Opinions Committee Formal Opinions from 1983 through 2009 have been summarized. However, the committee recommends that each formal opinion be read in its entirety for greater understanding of the ethical issues that are addressed.
1983 Opinion Summaries
An attorney would violate the Code of Professional Responsibility by participating in National Legal Referral Service, a private service owned by non-lawyers and not yet approved by the State Bar.
It is permissible for an out-of-state attorney to announce to New Mexico lawyers his availability to perform professional services in a specialized area. However, in associating, the attorneys should insure that the out-of-state attorney does not engage in the unauthorized practice of law in this state and that appropriate disclosure concerning any fee division is made to the client.
In response to a question by a legal services office, asking what to do with small amounts of client trust funds when the client can no longer be found, the committee stated that the office should exercise a high degree of diligence (short of hiring an investigator) to locate the client and, if the client could not be found, the office should proceed in accordance with the Uniform Disposition of Unclaimed Property Act, NMSA §§ 7-&l through 7-&34. The committee was also of the opinion that, in the future, the office could develop a procedure authorized by ABA Informal Opinion 1391 (1977), which allows the office to request that clients sign consent forms authorizing the office to use the unclaimed client funds, providing that the office exercises reasonable efforts to locate the client and takes scrupulous care to avoid overreaching.
An interstate law firm may use a name composed of lawyers who are admitted in New Mexico and lawyers who are not provided that letterheads and other permissible listings make clear the jurisdictional limitations on the lawyers not licensed to practice in each jurisdiction and care is taken that members of the firm not admitted in New Mexico do not practice in this state in an unauthorized fashion.
This opinion dealt with representing opponents of current and former clients. Because the facts of the request did not clarify which situation the request involved, an opinion was given on both sues. Definitionally, representation of the first client was deemed to have ended as of the date of the last act, however clerical or perfunctory, of service on behalf of the first client; representation of second client was deemed to have on the date of the initial consultation with him. The opinion states that, if representations are to be simultaneous, the attorney cannot represent the second client unless the first client consents. If service to the first client had ended by the time of the initial consultation with the second client, the attorney cannot represent the second client unless he first client consents only if there is a substantial relationship between the former representation and the current representation. This same rule would be applicable to different attorneys in the me law firm.
This opinion comprehensively treats the subject of spouses being employed by or representing opposing parties. Spouses cannot personally represent opposing sides of the same controversy. Associates of one spouse may represent one side of the controversy while associates of the other spouse are representing the other side. Unless there are particular circumstances casting doubt on the lawyers' ability to abide by the canons of ethics, a spouse may represent one side of the controversy while associates of the other spouse represent the other side.
1984 Opinion Summaries
It is permissible to compensate lay and expert witnesses for expenses, including lost time away from employment, incurred in interviewing. When a fact witness also happens to be an expert, it is permissible to compensate him for is services as an expert but not for his testimony as a fact witness.
When an attorney's client is insolvent, may have defrauded certain creditors, and has failed to file tax returns for a number of years, it is not unethical for the attorney to assist the client in applying assets towards the accounts of the client's major creditors as long as no further fraud is perpetrated and as long as the attorney advises the client to report his income and file tax returns. The above is true unless the attorney knows that his actions will render the client incapable of meeting tax obligations. In any event, the attorney should not reveal that the client has committed fraud and has no duty to reveal the client's intent regarding future tax liability.
An attorney may send a letter to selected potential clients announcing his availability, describing his practice and experience, and explaining his fees provided that the letter is factual, accurate, and not misleading.
Whether an attorney may assert a retaining lien on client's papers when the client needs them to pursue litigation depends upon such factors as whether the client urgently needs the papers, whether there will be prejudice to the client if access is denied, whether the client is able to pay is bill, whether the fee is reasonable, whether there are less stringent means to get the client to pay the bill, and whether the client's conduct would constitute gross imposition on the lawyer.
The committee saw nothing unethical in a non-mutual release, i.e. one in which the releasor (plaintiff) released the releasee (defendant) but reserved to the releasee (defendant) the right to pursue remedies against the releasor (plaintiff).
It is ethically improper for an attorney, who is a salaried employee of a bank or other lending institution, to ask for or receive attorney fees that exceed his salary and overhead. In other words, the lending institution may not make a profit by enforcing a loan provision stating that attorney fees shall be a percentage of the loan in the event of collection.
No opinion was issued under this number.
An attorney should not represent the owner of a building in litigation arising out of alleged defects in parts of the building when the attorney had previously mediated disputes between the owner and general contractor related to other aspects of the building and when the general contractor objects to the representation.
An attorney, who owned a collection agency which he wished to close and who wished to notify former clients of the collection agency that the agency would be closing but that the attorney would still accept collection matters, was referred to Opinion 1984-3.
It is permissible for a district attorney to distribute to the press an information sheet containing information on the number and types of cases filed and closed when the information is accessible to all as a matter of public record.
The committee approved, on certain conditions, an arrangement whereby an attorney would be provided office space by a legal clinic organized by a nonprofit organization which had no lawyers on its board in return for the attorney performing certain service to the clinic. The conditions primarily related to the attorney's exercise of independent judgment and disclosures to his clients.
An attorney may have prepaid legal services information available in his office for public dissemination but his secretary may not act as a representative of the prepaid legal services program to enroll interested clients.
An attorney, who is in-house counsel to a bank, does not divide fees with a non-lawyer when he handles the closing of a loan and the bank then charges a "documentation fee" which does not exceed the attorney's salary plus overhead.
1985 Opinion Summaries
An attorney may not withdraw from representing an existing client (corporation insured by insurance company) and then sue the existing client on behalf of another client (insurance company) on matters arising out of the same accident but which are not covered by the policy and this is true even though the attorney ever had any contact with the corporation or any of its directors and was not privy to confidential information.
In a situation in which the FBI has intercepted attorney's letter to client and the Secret Service wants attorney to help locating client, the attorney should not give the FBI permission to open the letter, only the client can waive the attorney/client privilege, and the attorney does not have to assist the Secret Service in locating the client in the absence of court process.
In a civil rights damage action, in which the prevailing party would be entitled to attorney fees, it is not improper for defendants to offer nor for plaintiff to accept a lump sum settlement presenting damages, costs, and attorney fees.
A law firm may not use a retaining lien or the threat of a retaining lien to effect a separation agreement between the law firm and an attorney departing it because, unless and until the client is afforded notice and opportunity to protect itself, a legal remedy which would affect the client cannot be used to compel an agreement with the departing attorney.
A settlement conditioned on non-disclosure of the amount and terms of the settlement is proper. A settlement agreement conditioned on the attorney's not representing any other claimants arising out of a certain incident is improper in that it restricts the right to practice law. As to a third condition, that the plaintiff's attorney turn over his file to defense counsel to seal, agreement to this condition depends upon two factors. First, the client must consent and, second, if the file contains work product, the lack of which would restrict his right to practice law, the attorney should not agree to this condition.
A lawyer has no obligation to report the attempted fraud of a former client to the district attorney when the intended victim of the fraud has learned of the attempted fraud. The lawyer may not cooperate with the intended victim in prosecuting the former client, since doing so would entail disclosing secrets of the former client.
A part-time judge or magistrate may not appear before his own tribunal as an attorney. For similar reasons, the Taxation and Revenue Department should not hire part-time hearing officers who also practice before the Department.
An attorney who represents a client who has recovered a judgment against husband, which judgment is pending on appeal, may represent wife in a divorce action against husband, provided that the judgment is not a community debt and provided further that the supersedeas protects the earlier client and both the earlier client and the wife consent to the representation after full disclosure of all its ramifications.
Accurate statements in an advertising letter labeled as such do not run afoul of the constitutional disciplinary rules.
An assistant district attorney who lives in another district may voluntarily prosecute traffic cases in the municipal court of his district of residence without violating the canons of ethics unless there is a legal prohibition to his doing so. As to legal prohibitions, the requesting attorney should seek an opinion from the attorney general's office.
Under the circumstances, a lawyer may represent the employer in a workmen's compensation action and that same client in a tort case arising out of the same accident in which plaintiff is suing both the employee and employer and in which the employee is an involuntary counter-claimant. However, the attorney should diligently evaluate his effectiveness to his client and, in the event that he determines that he cannot represent his client in the tort action as completely as he could if the workmen's compensation action did not exist, he should withdraw.
Nothing in the disciplinary rules prohibits a law firm continuing to make payments to a former partner pursuant to a buy-out agreement even if the former partner has turned in his license or been disbarred. However, a buy-out agreement which is a fixed percentage of future fees is prohibited by the rules.
1986 Opinion Summaries
A city attorney, who briefly investigated a complaint involving sexual harassment during his employment as city attorney, may after he leaves city employment represent the complainant in an action for retaliatory discharge for making the complaint as long as the action for retaliatory discharge does not involve the merits of the prior complaint. The attorney was cautioned that he should withdraw if there was any substantial relationship between the complaint and the action.
A further question was raised in this opinion. The requesting attorney stated that the chief of the agency involved waived any conflict of interest. The chief denied any such waiver. The opinion refused to answer the question of whether the chief would be held to his waiver, noting that such a determination is more appropriately made by a court. However, conflicting authorities were noted: a court had held that the right to object to a conflict could be waived; an ABA advisory opinion had held that a client could withdraw a consent and that the attorney should honor the withdrawal.
It is improper for the attorney of a workmen's compensation plaintiff to personally guarantee the client's payment of a promissory note when repayment is anticipated from the unliquidated claim for compensation being handled by the attorney.
This is a long and detailed opinion involving the problem of attorneys switching law firms. The following summary was prepared by the authors of the opinion.
1. Where a lawyer leaves one law firm and joins a second firm such will not require disqualification of the second firm in representing its client against a client of the first firm if the matter is neither the same nor substantially related to a matter handled by the first firm while the attorney switching firms was with the first firm.
2. If, however, the matter is the same or is substantially related, the second law firm will be disqualified unless it carries the burden of proving that the lawyer switching firms had no actual knowledge of any confidential information and no actual knowledge of any matter, obtained while a member of the prior firm, which would cause disadvantage to the client of the prior firm.
3. In a disqualification proceeding the burden of proving that the matter is the same of substantially related is upon the party asserting disqualification; the burden of proving the absence of actual knowledge of confidential information, or of information which would disadvantage the prior firm's client, is upon the party resisting disqualification.
4. Presumptions and inferences may be employed in determining the issue of actual knowledge, but there is no irrebuttable presumption of "actual knowledge" merely because the element of "substantially related" has been proved or determined.
5. If disqualification would result under the rule stated above, screening the attorney switching firms from participation in the matter with the second firm may avoid disqualification, but screening is a device which should be available only in carefully limited circumstances, such as to avoid severe prejudice to a client of the second firm, when actual knowledge is clearly peripheral or otherwise when screening would avoid a demonstrably harsh result.
6. Screening the attorney from participation may be necessary, even though disqualification of the second firm is not required, to avoid the appearance of impropriety.
7. A disqualification prescribed by the above may be waived by the affected client.
An attorney should not represent a client both in his individual capacity and in his capacity as executor of an estate when a third party has sued both the individual and the estate based on the same circumstances. Nor may the client, in his capacity of executor, waive the conflict.
A lawyer may ethically stipulate to dismiss a matter without prejudice with the intention of refiling the matter in order to obtain a new judge if he makes the determination that it is lawful to do so. Upon refiling, if the same judge is assigned to the case, the lawyer may take advantage of a change in the statute and rule to exercise a peremptory challenge to the judge. The facts of this request indicated that both counsel agreed that the assigned judge was not competent to handle the matter and both counsel wanted a different judge.
Absent a court order or agreement among parties limiting the disclosure of a deposition, it would not be a violation of any attorney-client privilege, statute, rule, or regulation for an attorney to permit another attorney to review a deposition of an expert witness.
An attorney represented a divorce client, who had given him a lien on the judgment in the case and who had not paid her bill. The attorney was discharged from the case before judgment. When the attorney learned that the former client was, in attempting to settle the case, assigning portions of the judgment to others, the attorney filed a notice of claim, moved to intervene, and moved for injunctive relief. This was permissible because a lawyer is entitled to take lawful steps to insure payment of his fee.
It is ethically improper for a lawyer to join an organization whose advertised purpose is to promote the businesses of the members by only allowing admission of one member of each business or profession and then requiring each member to promote the services of fellow members.
When a firm represents one client in a particular matter and also represents another client on continuing matters unrelated to the particular matter and the second client is openly hostile to the first and displeased that the firm is representing the first and is also a witness in the particular matter, the law firm should withdraw from representation of the first client. This is an instance of divided loyalties and unless the second client consents and the firm would not conduct a hostile cross-examination of the second client the law firm should not represent the first client.
An attorney acquired information that left him with an "abiding conviction" that his client was falsifying his claim. If the attorney knows that his client has perpetrated a fraud on the tribunal, the attorney should call upon his client to rectify the same and if his client refuses the attorney should reveal the fraud to the tribunal. If, on the other hand, the client may not be perpetrating a fraud, the attorney has a duty to zealously represent the client as long as he is attorney. The attorney should confront the client to the end of determining whether the information acquired is accurate or correctly understood and then take appropriate action.
A lawyer or a law firm may appear pro se in a suit against a former client for fees, and there is no obligation for the lawyer to withdraw even if he knows that he will have to testify in the case.
1987 Opinion Summaries
An attorney who takes assignments from the Lawyer Referral for the Elderly Project who learns that a client is suicidal and who arranges the client's affairs and drafts the client's will has no duty to communicate to anyone the client's possible intent to commit suicide. Suicide is not a crime in New Mexico.
An attorney has no duty to bring to a tribunal's attention the possibility that a statute of limitations bars his client's claim.
An attorney may mail a monthly newsletter to current, former, and prospective clients as long as the newsletter cautions as to the limited applicability of its general advice and as long as representations about the experience of the writers are not misleading.
A former client's communication to an attorney that the attorney may be a witness in an upcoming case is not privileged or confidential because there is no longer an attorney/client relationship. Attorney may tell his current firm that former client's attorney told him that he may be a witness even when current firm represents opposing party. In fact, attorney should tell his firm so the firm can evaluate disqualification. Foregoing answers are the same whether firm is private firm or governmental agency.
An attorney may not threaten or make reference to criminal sanctions in a demand letter for payment of supplies or recovery of worthless checks. Nor should an attorney advise his client to do what the attorney himself should not do.
Committee declines to answer question of whether attorney/client relationship is formed when legal aid attorneys run pro se divorce clinics. Committee comments on its approval of such clinics.
New Mexico attorneys may not use services of American Lawyer Referral Service, a Florida corporation, a private, for-profit referral service not approved by the State Bar.
An attorney may provide information about prepaid legal services to clients or the general public.
An attorney may withdraw from a suit if the client has not paid the fee. The attorney should attempt to present the matter to the court so that the court is unaware of the attorney's additional reason, that the suit is meritless.
An attorney, who was an administrative hearing officer but who ruled only on two minor, procedural matters in such capacity, could later represent the agency on appeal before the supreme court where those procedural matters were not at issue.
An attorney who knows that an insurance company made a mistake in tendering his client a settlement check, such that the tendered check was ten times the amount that the company intended to settle for, has an obligation to inform the insurance company of the mistake.
Where an opposing client is proceeding pro se but has given the attorney no indication that he is relying on the attorney to protect his rights, the attorney has no obligation to call to the court's attention a possible mistake that favors the attorney's client. The attorney is entitled to act as though the opposing client were represented by counsel and accordingly require the opposing client to protect his own rights.
1988 Opinion Summaries
This opinion comments on an attorney's obligations to his former clients with regard to old files and what must be done before they are destroyed.
It is unethical for a plaintiff's lawyer to communicate directly with Risk Management Division to explain or negotiate settlement without defense counsel's consent.
An attorney may pay a franchiser a royalty for the use of the franchise's trademarks and marketing assistance, but because the use of the trademark "PERSONAL INJURY NETWORK" might be misunderstood by the public to be an organization of specialists in personal injury law, this trademark may not be used without explanation.
(THIS OPINION HAS NOW BEEN REVISED AND ISSUED AS 1988-4(R))
Under current rules, an attorney may not negotiate, charge, or collect a contingent fee in a domestic relations matter whether the matter involves the divorce, or the amount of alimony, child support, or property awarded. However, in circumstances involving the collection of past due support, a contingent fee is permissible because the matter involves collecting a judgment rather than setting a particular amount of support.
An attorney may not represent wife without husband's consent when the attorney drafted an antenuptial agreement for husband before the marriage.
It is unethical for a lawyer to secretly record interviews with witnesses because the lawyer is impliedly representing that he is not recording the conversations when, by his silence, he does not tell the witness he is recording them. A lawyer should tell a potential witness he is a lawyer if the witness is not likely to appreciate that the witness is being interviewed by a lawyer.
It is permissible for a lawyer to attempt to collect his fee by referring the matter to an agency for collection after other reasonable efforts at collecting the fee have failed. The attorney may not refer the client's name to a credit bureau solely for the purpose of impeding the client's ability to obtain credit.
An attorney's duty to report another attorney to disciplinary authorities extends only to matters about which the attorney has knowledge and which raise a substantial question about the attorney's honesty or fitness as a lawyer. An attorney's attempt to influence testimony by offer of monetary payment raises substantial questions about the attorney's fitness as a lawyer. An attorney has knowledge about matters when he obtains information which creates a substantial basis for subjectively believing that the violation has been committed.
If an attorney has been used in such a way as to make the attorney an unwilling participant in a client's converting the client's father's assets and the attorney has communicated with the father in such a way that the father relies on the attorney, the attorney is under a duty to disclose to the father the client's scheme.
An attorney may ethically seek his fee under the interim and current worker's compensation acts without running afoul of ethical considerations. However, if the attorney argues for a fee which the client objects, that may effectuate a termination of the attorney-client relationship for purposes of the fee hearing.
1989 Opinion Summaries
An attorney who discovers, in the course of his representation of civil clients, that persons other than his clients have committed crimes has no duty to report those crimes that would be different from the duty of any other citizen. However, if in the course of the representation the claims are compromised and a confidentiality provision is inserted in the settlement agreement preventing the attorney from reporting the crime, that might run afoul of laws regarding compounding a crime and, accordingly, be an ethical violation.
Attorneys whose clients want to pay them over $10,000 in cash yet who want the attorneys to keep this information confidential may decline the representation on the ground that tax laws require disclosure or may accept the representation and challenge the tax laws by filling out the required IRS form without the clients' identities.
1990 Opinion Summaries
A municipal attorney may give day-to-day advice to city management and then represent the city in employment grievance hearings before the city commission, which the attorney also represents in other contexts. In this situation, the city should arrange for independent counsel to advise the commission on the employment matter.
Attorneys, whose clients plead guilty to DWI charges, are under no obligation to disclose this fact in later court proceedings when their clients claim they were not driving while intoxicated. This is because the clients may plead guilty for reasons other than that they are guilty. Similarly, attorneys have no duty to bring to courts' attentions the fact that their clients who have been found guilty have not been sentenced. It is not an attorney's duty to help the prosecutor find cases that have fallen through the cracks.
Attorneys who represent a large diverse entity, like the state, on one matter may ethically represent another branch of the state on a different unrelated matter. A law firm may represent a financial institution when a member of the firm sits on the board of it. Different attorneys in the same firm may take different legal positions on different cases. In all these cases, the lawyers must be satisfied that they can undertake both representations without compromising either and they must obtain the informed consent of their clients.
Lawyers have a duty to inform their clients concerning the hourly rates to be charged by non-lawyer employees working on the cases. An attorney may not ethically treat paralegal time as the attorney's own time and conceal it in the attorney's own billing.
Attorneys may not use documents that look like subpoenas for the purpose of encouraging the attendance of witnesses at trial.
1991 Opinion Summaries
No formal opinions issued.
1992 Opinion Summaries
It is not permissible for an attorney to enter into an agreement with a real estate broker pursuant to which the broker will direct the title companies with which he does business to have all documents needed for closings in which the broker has an interest prepared by the attorney. In return for the referrals the attorney provides other services for the broker.
A client charged with a sexual crime was found dead under suspicious circumstances. The attorney-client privilege prevents the attorney from disclosing to the investigating police officers communications from the deceased client absent waiver by a personal representative or an order of a court having jurisdiction.
1993 Opinion Summaries
Various non-traditional advertising and business arrangements have been proposed for lawyers including for-profit referral services and networks of independent professionals of different disciplines providing a comprehensive service and common advertising. Under rules presently in effect, the committee concluded that it would be unethical for a lawyer to participate in the proposed for-profit referral service or to join in and advertise with a network of other non-lawyer professionals.
1994 Opinion Summaries
No formal opinions issued.
1995 Opinion Summaries
What should be the lawyer's course of conduct when the client seeks to control the litigation in a manner which may impair the lawyer's independent exercise of judgment and duty to the tribunal? The lawyer must advise the client concerning the lawyer's obligation to represent the client within the Rules of Professional Conduct and applicable rules of court. If the lawyer cannot represent the client within these rules, the lawyer should seek to withdraw from further representation.
This opinion concerns the right of an attorney to fees when a contingent fee agreement is terminated. The fee agreement may not contain provisions that reward a lawyer for failing to carry a matter to conclusion. The lawyer may have a quantum meruit claim if the behavior of the client leads the lawyer to withdraw, but the agreement should not punish the client who ends the relationship.
1996 Opinion Summaries
Formal opinion 96-01 suggests that registered limited liability partnership is an appropriate business entity for the practice of law under the following conditions.
1) each partner is licensed to practice law in New Mexico;
2) the partnership does not interfere with the lawyer's ability to provide competent representation to clients through the exercise of the lawyer's independent professional judgment;
3) the partnership does not allow non-lawyers to own any interest or the ability to direct or control each lawyer's professional judgment;
4) the partnership does allow fee-sharing with non-lawyers;
5) the partnership does not relieve its lawyers of their duty to report and remedy violations of the rules of professional conduct;
6) the partnership does not limit the liability of a partner for that partner's own omission, negligence, wrongful act, misconduct or malpractice or that of any person under the partner's direct supervision or control; and
7) the partnership carries at least $500,000 for any liability from which individual partners may be shielded.
Formal opinion 96-02 is not definitive as to whether it is ethical or unethical for a lawyer, or someone under the lawyer's direct supervision and control, to record conversations without the consent of all persons who are being recorded. Although the practice is not unlawful, special attention must be paid to the lawyer's ethical obligations when making, disclosing or using secret recordings, as the Rules of Professional Conduct impose high standards of honesty and integrity on lawyers.
1997/1998/1999 Opinion Summaries
No formal opinions issued.
2000 Opinion Summaries
The use of credit cards to fund retainer deposits in trust may not comport with the New Mexico Rules of Professional Conduct, Rules 16-101 to 16-805 NMRA 2000. The committee concludes a New Mexico lawyer would be ill-advised to accept direct credit-card payments for retainer deposits to be held in trust. The committee's fundamental concerns stem from the possibilities for failure to maintain the required separation of the lawyer's funds from his clients,' in potential violation of Rule 16-115.
The committee suggests there are other, potentially less troublesome ways clients can make retainer deposits using credit cards, including use of credit-card checks and cash advances. Clients will, of course, incur somewhat more expense because cash advances typically carry cash-advance charges; in effect, the processing fee for cash advances is borne by credit-card holders rather than the payee lawyer.
A lawyer retained by an insurer to defend an insured should not submit legal defense bills pertaining to the representation of the insured to a third-party auditing company without informed consent by the insured client. Absent informed consent of the insured client, an insurance defense lawyer must not disclose legal defense bills pertaining to the representation of the insured to third parties, including auditing companies. Further, an insurance defense lawyer ordinarily may not seek consent from the insured because of inherent impermissible conflicts, which would compromise the lawyer's independent professional judgment.
2001 Opinion Summaries
This opinion addresses lawyer communications via internet "listserves" as follows:
1. Would a lawyer who answers questions on the Listserve violate Rule 16-106 NMRA 2001?
2. Would a lawyer who answers questions on the Listserve violate Rule 16-107 NMRA 2001?
3. Does a lawyer who answers questions on the Listserve risk violation of other of the Rules of Professional Conduct?
4. Does a lawyer who posts an article on the Listserve (such as "The Pros and Cons of Selecting a Business Entity") risk violation of the Rules of Professional Conduct?
2002 Opinion Summaries
Limitations on lawyer/elected official to represent clients.
Whether a lawyer who is an elected member of the city council may represent defendants in municipal court proceedings, or parties in any other matter in which any city officer or board member may exercise discretion.
2003/2004 Opinion Summaries
No formal opinions issued.
2005 Opinion Summaries
This opinion comments on the length of time an attorney must retain client files after representation is complete in order to comply with the Rules of Professional Conduct, obligations to review the client files before they are destroyed and duties to communicate with a client about the lawyer's intent to dispose of the client's file.
A lawyer has a mandatory duty of reporting misconduct. A lawyer charging an unreasonable fee has committed a violation of the Rules of Professional Conduct. If such a breach occurs, any lawyer with knowledge of the breach has a mandatory duty to report the misconduct. Finally, a lawyer's duty of diligence to his or her client may also require reporting the unreasonable fee to the court approving the fee, especially in circumstances involving minor children or otherwise incapacitated persons.
The Rules of Professional Conduct preclude the secret recording of a witness interview by a lawyer, or anyone acting under the lawyer’s control, if such a recording would involve deceiving the witness either by commission or omission. Circumstances that would bar such a recording include, but may not be limited to, instances wherein the witness has made any expression that the witness believes the interview is "off the record" or has indicated that, if a recording were made, no interview would be granted. Despite the withdrawal of ABA Formal Opinion 337, the Committee believes that the prudent New Mexico lawyer will still be hesitant to record conversations without the other party’s knowledge and must always consider the obligations placed upon a lawyer by the Rules of Professional Conduct. In so doing, the Committee does not mean to opine that under no circumstances would the practice be permissible. Rather, the analysis remains a very fact specific one.
2006 Opinions Summaries
A lawyer may not call the firm "& Associates" when all lawyers are already named in the firm name without violating Rule 16-701. "Associates" are lawyers who are employees of the firm, not legal assistants and not other lawyers who merely associate with the firm for specific cases. Appending "& Associates" implies that there are yet more lawyers in the firm than those named.
Lawyers are encouraged to provide candid and honest opinions regarding public legal officials and candidates, including judges, as an aid to improving the administration of justice. Conversely, statements known to be false or made with reckless disregard to their truth or falsity do mischief to the administration of justice and are forbidden by the Rules of Professional Conduct. Moreover, the lawyer must keep in mind other obligations set out in the Rules of Professional Conduct (e.g., Rule 16-106 NMRA 2006-Confidentiality of Information) when commenting on the performance of a public legal officer or candidate. A lawyer who is a candidate for judicial office must also consider applicable provisions of the Code of Judicial Conduct pursuant to Rule 16-802 (B) NMRA 2006.
To pay a fact witness on a contingency fee basis violates Rule 16-304 (B), and Rule 16-804 (H) as interpreted. Whether paying an expert witness on a contingency fee basis violates Rule 16-304 (B) is currently unknown because New Mexico has not yet declared in its substantive law whether the practice is permitted or prohibited. It is the considered formal opinion of the State Bar’s Ethics Advisory Committee that New Mexico should adopt section 117 of The Restatement (Third) of the Law Governing Lawyers (2000) as its substantive law to fill that void. By doing so, lawyers practicing in New Mexico will have clear guidance that to pay an expert witness on a contingency fee basis would be to violate Rule 16-304 (B) of the Rules of Professional Conduct.
Despite the adoption of Rule 24-107 and the revisions to the Rules of Professional Conduct made effective November 3, 2008, the Committee remains concerned that there may be legal impediments to the formation of a New Mexico law firm other than as a general partnership, sole proprietorship or professional corporation or association. To the extent that the practice of law in the form of a limited liability company or other limited liability entity is not authorized by the law, the lawyer practicing in such an entity would face ethical concerns but may also lose the very liability shield that would presumably have been a significant basis for organizing as such a limited liability entity.
The concerns raised in this opinion could, in the Committee’s view, be remedied by amendments to New Mexico’s Limited Liability Company Act as well as revision of Rule 24-107 NMRA to clarify the requirements of statutory provisions associated with limited liability entities.