N.M. R. Prof'l. Cond. 16-102
N.M. R. Prof'l. Cond. 16-102
Committee Commentary. -
Allocation of Authority between Client and Lawyer
[1] Paragraph A confers upon the client the ultimate authority to determine the purposes to be served by legal representation, within the limits imposed by law and the lawyer's professional obligations. The decisions specified in Paragraph A, such as whether to settle a civil matter, must also be made by the client. See Rule 16-104(A)(1) NMRA for the lawyer's duty to communicate with the client about such decisions. With respect to the means by which the client's objectives are to be pursued, the lawyer shall consult with the client as required by Rule 16-104(A)(2) NMRA and may take such action as is impliedly authorized to carry out the representation.
[2] On occasion, however, a lawyer and a client may disagree about the means to be used to accomplish the client's objectives. Clients normally defer to the special knowledge and skill of their lawyer with respect to the means to be used to accomplish their objectives, particularly with respect to technical, legal, and tactical matters. Conversely, lawyers usually defer to the client regarding questions about the expense to be incurred and concern for third persons who might be adversely affected. Because of the varied nature of the matters about which a lawyer and client might disagree and because the actions in question may implicate the interests of a tribunal or other persons, this rule does not prescribe how the disagreements are to be resolved. Other law, however, may be applicable and should be consulted by the lawyer. The lawyer should also consult with the client and seek a mutually acceptable resolution of the disagreement. If the efforts are unavailing and the lawyer has a fundamental disagreement with the client, the lawyer may withdraw from the representation. See Rule 16-116(B)(4) NMRA. Conversely, the client may resolve the disagreement by discharging the lawyer. See Rule 16-116(A)(3) NMRA.
[3] At the outset of a representation, the client may authorize the lawyer to take specific action on the client's behalf without further consultation. Absent a material change in circumstances and subject to Rule 16-104 NMRA, a lawyer may rely on the advance authorization. The client may, however, revoke that authority at any time.
[4] In a case in which the client appears to be suffering diminished capacity, the lawyer's duty to abide by the client's decisions is to be guided by reference to Rule 16-114 NMRA.
Independence from Client's Views or Activities
[5] Legal representation should not be denied to people who are unable to afford legal services, or whose cause is controversial or the subject of popular disapproval. By the same token, representing a client does not constitute approval of the client's views or activities.
Agreements Limiting Scope of Representation
[6] The scope of services to be provided by a lawyer may be limited by agreement with the client or by the terms under which the lawyer's services are made available to the client. When a lawyer has been retained by an insurer to represent an insured, for example, the representation may be limited to matters related to the insurance coverage. A limited representation may be appropriate because the client has limited objectives for the representation. In addition, the terms upon which representation is undertaken may exclude specific means that might otherwise be used to accomplish the client's objectives. The limitations may exclude actions that the client thinks are too costly or that the lawyer regards as repugnant or imprudent.
[7] Although this rule affords the lawyer and client substantial latitude to limit the representation, the limitation must be reasonable under the circumstances. If, for example, a client's objective is limited to securing general information about the law the client needs in order to handle a common and typically uncomplicated legal problem, the lawyer and client may agree that the lawyer's services will be limited to a brief telephone consultation. Such a limitation, however, would not be reasonable if the time allotted was not sufficient to yield advice upon which the client could rely. Although an agreement for a limited representation does not exempt a lawyer from the duty to provide competent representation, the limitation is a factor to be considered when determining the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation. See Rule 16-101 NMRA.
[8] With regard to Paragraph C, limitations on the scope of representation may include drafting specific, discrete pleadings or other documents to be used in the course of representation without taking on the responsibility for drafting all documents needed to carry the representation to completion. For example, a lawyer may be retained by a client during the course of an appeal for the sole purpose of drafting a specific document, such as a docketing statement, memorandum in opposition, or brief. A lawyer who agrees to prepare a discrete document under a limited representation agreement must competently prepare that document and fully advise the client with respect to that document, which includes informing the client of any significant problems that may be associated with the limited representation arrangement. However, by agreeing to prepare a specific, discrete document the lawyer does not also assume the responsibility for taking later actions or preparing subsequent documents that may be necessary to continue to pursue the representation. While limitations on the scope of representation are permitted under this rule, the lawyer must explain the benefits and risks of such an arrangement and obtain the client's informed consent to the limited representation. Upon expiration of the limited representation arrangement, the lawyer should advise the client of any impending deadlines, pending tasks, or other consequences flowing from the termination of the limited representation. See Rule 16-303 NMRA.
[9] All agreements concerning a lawyer's representation of a client must accord with the Rules of Professional Conduct and other law. See, e.g., Rules 16-101, 16-108, and 16-506 NMRA.
[10] A lawyer providing limited-scope representation shall explain that other lawyers may communicate directly with the client, without the permission of the lawyer and outside the presence of the lawyer. The lawyer shall explain that the client may limit or halt communications with the other lawyer with notice, preferably in writing. The lawyer should explain the risks of communicating with another lawyer. The lawyer is not required to participate in communications outside the scope of the limited representation, even if the client requests such participation.
Criminal, Fraudulent, and Prohibited Transactions
[11] Paragraph D prohibits a lawyer from knowingly counseling or assisting a client to commit a crime or fraud. This prohibition, however, does not preclude the lawyer from giving an honest opinion about the actual consequences that appear likely to result from a client's conduct. Nor does the fact that a client uses advice in a course of action that is criminal or fraudulent of itself make a lawyer a party to the course of action. As an illustration, a lawyer may counsel or assist a client regarding conduct expressly permitted by the Lynn and Erin Compassionate Use Act, NMSA 1978, §§ 26-2B-1 to -7, and may assist a client in conduct that the lawyer reasonably believes is permitted by the Act. When that advice or assistance is given, the lawyer shall counsel the client about the potential legal consequences, under federal and other applicable law, of the client's proposed course of conduct. There is a critical distinction between presenting an analysis of legal aspects of questionable conduct and recommending the means by which a crime or fraud might be committed with impunity.
[12] When the client's course of action has already begun and is continuing, the lawyer's responsibility is especially delicate. The lawyer is required to avoid assisting the client, for example, by drafting or delivering documents that the lawyer knows are fraudulent or by suggesting how the wrongdoing might be concealed. A lawyer may not continue assisting a client in conduct that the lawyer originally supposed was legally proper but then discovers is criminal or fraudulent. The lawyer must, therefore, withdraw from the representation of the client in the matter. See Rule 16-116(A) NMRA. In some cases, withdrawal alone might be insufficient. It may be necessary for the lawyer to give notice of the fact of withdrawal and to disaffirm any opinion, document, affirmation, or the like. See Rule 16-401 NMRA.
[13] Where the client is a fiduciary, the lawyer may be charged with special obligations in dealings with a beneficiary.
[14] Paragraph D applies whether or not the defrauded party is a party to the transaction. Hence, a lawyer must not participate in a transaction to effectuate criminal or fraudulent avoidance of tax liability. Paragraph D does not preclude undertaking a criminal defense incident to a general retainer for legal services to a lawful enterprise. The last clause of Paragraph D recognizes that determining the validity or interpretation of a statute or regulation may require a course of action involving disobedience of the statute or regulation or of the interpretation placed upon it by governmental authorities.
[15] If a lawyer comes to know or reasonably should know that a client expects assistance not permitted by the Rules of Professional Conduct or other law or if the lawyer intends to act contrary to the client's instructions, the lawyer must consult with the client regarding the limitations on the lawyer's conduct. See Rule 16-104(A)(5) NMRA.
[Adopted by Supreme Court Order No. 08-8300-029, effective November 3, 2008; as amended by Supreme Court Order No. 15-8300-007, effective December 31, 2015; as amended by Supreme Court Order No. 17-8300-006, effective August 1, 2017.]
.ANNOTATIONS The 2017 amendment, approved by Supreme Court Order No. 17-8300-006, effective August 1, 2017, made non-substantive language changes throughout the Committee commentary, and in Paragraph 11, added the illustration of a prohibited transaction. The 2015 amendment, approved by Supreme Court Order No. 15-8300-007, effective December 31, 2015, revised the to provide for additional duties for lawyers providing limited-scope representation, and to make technical changes to rule citations; and in the, added Paragraph 10 and redesignated the subsequent paragraphs accordingly. The 2008 amendment, approved by Supreme Court Order No. 08-8300-29, effective November 3, 2008, added "and allocation of authority between client and lawyer" in the title; in Paragraph A, added "Subject to Paragraphs C and D of this rule", added the reference to Rule 16-104 NMRA, and added the second sentence; in Paragraph D, changed "A lawyer shall not engage or counsel" to "A lawyer shall not counsel"; and deleted former Paragraph E which concerned consultation on limitations of assistance when the client expects assistance not permitted by the Rules of Professional Conduct. The 2005 amendment of the Code of Professional Conduct Comment, effective January 20, 2005, added the comment to Paragraph E. The 2001 amendment, effective March 15, 2001, rewrote Paragraph C which read "A lawyer may limit the objectives of the representation if the client consents after consultation". Unreasonable limitation on the scope of representation. - Where respondent agreed to represent a criminal defendant for the limited purpose of negotiating a plea agreement for a flat fee; respondent conducted no discovery or witness interviews; defendant rejected the state's plea offer; six weeks before trial, respondent sought to withdraw from the representation without discussing the matter with defendant; respondent cited a breakdown of the attorney-client relationship as the reason for the withdrawal, when in fact respondent wanted to withdraw because respondent had accepted a flat fee for negotiating a plea agreement; and after the court denied the motion, respondent told the prosecutor that respondent would not prepare for trial in order to set up a claim for ineffective assistance of counsel, respondent's conduct warranted suspension. In re Chavez, 2013-NMSC-008, 299 P.3d 403. Duty to take essential steps and consult with client. - When one contracts with an attorney for legal services, it is not the client's responsibility to initiate all inquiries to the attorney to insure that essential steps are being taken. Furthermore, it is within the scope of an attorney's obligations to a client to provide the information, advice, and reassurances necessary to allay unnecessary concerns that the client may have. Where attorney does none of these things, he violates this and other rules. In re Carrasco, 1987-NMSC-089, 106 N.M. 294, 742 P.2d 506. Attorney's failure to consult with his clients concerning the objectives of the representation and the means by which the objectives were to be pursued violated Paragraph A of this rule. In re Houston, 1999-NMSC-032, 127 N.M. 582, 985 P.2d 752. Dual role of guardian ad litem. - The dual role of a guardian ad litem to represent the best interests of a child while also presenting the child's wishes to the court even if they conflict with the position of the guardian ad litem conforms to the requirements of the Rules of Professional Conduct. State ex rel. Children, Youth & Families Dep't v. Esperanza M., 1998-NMCA-039, 124 N.M. 735, 955 P.2d 204. Lawyers are officers of court and are always under obligation to be truthful to the court. Woodson v. Phillips Petroleum Co., 1985-NMSC-018, 102 N.M. 333, 695 P.2d 483. Public defenders are not excused from compliance with the Code of Professional Responsibility (now the Rules of Professional Conduct) even though they are paid with public funds. State v. Martinez, 1982-NMCA-020, 97 N.M. 540, 641 P.2d 1087. Attorney's duty upon appeal. - An attorney representing a client on appeal should first seek to convince the client of the wisdom of the attorney's professional judgment, but, failing such persuasion, the client's contention should be presented. The manner of such presentation is solely for the attorney, subject, however, to Rule 7-102(A) NMRA (now Rules 16-102, 16-303 and 16-304 NMRA) which prohibits an attorney from knowingly advancing unwarranted claims and from knowingly making false statements of law or fact. State v. Boyer, 1985-NMCA-029, 103 N.M. 655, 712 P.2d 1. Abandonment of issues on appeal. - The strict language of this rule and Rule 7-102 NMRA (now Rules 16-102, 16-303 and 16-304 NMRA) allows attorneys to abandon frivolous issues, or even non-frivolous issues, once the attorney has found one non-frivolous issue to argue with vigor on appeal. State v. Boyer, 1985-NMCA-029, 103 N.M. 655, 712 P.2d 1. Abandonment of client warrants suspension. - Where an attorney abandons his client and the client's case, despite his having been paid a substantial fee, he violates this rule and the violation warrants suspension. In re Chowning, 1983-NMSC-085, 100 N.M. 375, 671 P.2d 36. Six-month suspension and other penalties were warranted since attorney accepted one-half of the fee and failed to represent the client, allowing default to be entered against the client. In re Trujillo, 1990-NMSC-062, 110 N.M. 180, 793 P.2d 862. Suspension warranted where conflicting interests impair independent judgment. - If a lawyer allows his independent professional judgment on his client's behalf to be impaired by his representation of conflicting interests and, through negligence and acceptance of undue influence and instructions from others, he unintentionally aids an embezzlement scheme in which his client is the victim, such conduct warrants suspension from practice of law for a 30-day period and thereafter until reinstated as provided by the rules of the supreme court. In re Dilts, 1979-NMSC-055, 93 N.M. 131, 597 P.2d 316. Censure and fine for false and misleading brief. - An attorney was publicly censured and fined $1,000 for knowingly making false, misleading and inaccurate statements in a brief to the court of appeals in violation of this rule (former Rule 7-102 NMRA). In re Chakeres, 1984-NMSC-088, 101 N.M. 684, 687 P.2d 741. Counseling a client to engage in criminal conduct. - Where respondent advised his client, who was charged with incest, criminal sexual contact, and criminal sexual penetration of his granddaughter, to consider paying off his accusers unequivocally demonstrated respondent's intent to convince his client to bribe witnesses and was sufficient to support the conclusion that respondent counseled a client to engage in conduct that the lawyer knows is criminal, in violation of Rule 16-102(D) NMRA. In re Venie, 2017-NMSC-018. Misrepresentations to a tribunal. - Where respondent, representing a client who was charged with incest, criminal sexual contact, and criminal sexual penetration of his granddaughter, prepared affidavits for granddaughter, granddaughter's father, and another witness based on their statements to respondent in which they all claimed that client was innocent of the crimes for which he was charged, evidence that respondent knew his client had committed incest and knew the affidavits contained perjured statements was sufficient to support the conclusion that respondent assisted client in making misrepresentations to a tribunal. In re Venie, 2017-NMSC-018. Restitution made only under pressure is entitled to no weight as a mitigating factor. In re Stewart, 1986-NMSC-043, 104 N.M. 337, 721 P.2d 405. Misappropriation of funds. - Attorney's conversion to his own use of money received from a client to have a liquor license transferred to her name violated Rules 1-102, 6-101, 7-101 and 9-102 NMRA of the Code of Professional Responsibility (now Rules 16-102, 16-104, 16-115 and 16-804 NMRA of the Rules of Professional Conduct). In re Gallegos, 1986-NMSC-058, 104 N.M. 496, 723 P.2d 967. One-year suspension warranted. - Attorney's actions warranted a one-year suspension since he made misrepresentations to a court, failed to return unearned fees, failed to render an accounting to a client and acted otherwise to prejudice the administration of justice. In re Arrieta, 1986-NMSC-045, 104 N.M. 389, 722 P.2d 640. Indefinite suspension warranted. - Sixteen violations of nine rules governing professional responsibility, involving misrepresentation, neglect, improper fee-splitting, disrespect to various tribunals, and other conduct prejudicial to the administration of justice resulted in defendant's being suspended indefinitely from the practice of law. In re Quintana, 1986-NMSC-057, 104 N.M. 511, 724 P.2d 220. Indefinite suspension was warranted because an attorney violated Paragraph A by failing to abide by a client's decisions concerning the objectives of the representation. The attorney also violated Rule 16-101 NMRA, by failing to provide competent representation; Rule 16-103 NMRA, by failing to act with reasonable diligence and promptness in representing a client; Rule 16-104(A) NMRA, by failing to keep a client reasonably informed about the status of a matter and by failing to promptly comply with reasonable requests for information; Rule 16-116(D) NMRA, by failing to timely surrender papers and property to which a client was entitled and by failing to timely refund any advance payment of fee that had not been earned; Rule 16-804(D) and (H) NMRA, by engaging in conduct that is prejudicial to the administration of justice and conduct that adversely reflects on his fitness to practice law; Rule 16-801(B) NMRA, by failing to respond to lawful requests for information from the office of disciplinary counsel; and Rule 16-803(D) NMRA, by failing to cooperate with disciplinary counsel in the course of the investigation. In re Carlton, 2000-NMSC-001, 128 N.M. 419, 993 P.2d 736. An attorney's apparent failure to complete several cases, to take steps to insure that the interests of her clients were protected upon her withdrawal from their cases, and to promptly refund any unearned portions of fees paid in advance, as well as her lack of cooperation with the disciplinary counsel, constitute conduct violative of the professional rules warranting an indefinite suspension from the practice of law. In re Roth, 1987-NMSC-004, 105 N.M. 255, 731 P.2d 951. Disbarment warranted. - Disbarment was justified because of the inadequacy of an attorney's representation of clients in violation of Paragraph A of this rule and Rules 16-101, 16-103 and 16-104(A) NMRA, by his adverse business transaction with a client and misappropriation of trust account funds in violation of Rules 16-108, 16-115 and 16-116(D) NMRA, and violation of Rule 16-801 NMRA and other rules relating to disciplinary proceedings. In re Darnell, 1997-NMSC-025, 123 N.M. 323, 940 P.2d 171. Rule violated. In re Cutter, 1994-NMSC-086, 118 N.M. 152, 879 P.2d 784; In re Chavez, 2000-NMSC-015, 129 N.M. 035, 1 P.3d 417. Misleading the court. - In a personal injury action for damages resulting from a pharmacist filling a child's prescription for Ritalin with methadone, where attorney, who had prior knowledge that her client's records indicated that the prescription at issue had been mis-filled, who recommended that the client admit liability, who relied on representations from the pharmacist, pharmacy manager and out-of-state counsel for the pharmacy that the missing drugs could be accounted for and followed their advise to investigate other possible sources for the methadone that injured the plaintiff rather than using the attorney's independent judgment, and who proceeded to defend the case that was contrary to the evidence the attorney had found and that the attorney had not provided in discovery, the attorney misled the court. In re Estrada, 2006-NMSC-047, 140 N.M. 492, 143 P.3d 731. Am. Jur. 2d, A.L.R. and C.J.S. references. - 7 Am. Jur. 2d Attorneys at Law §§ 67 to 73. Legal malpractice in settling or failing to settle client's case, 87 A.L.R.3d 168. Method employed in collecting debt due client as ground for disciplinary action against attorney, 93 A.L.R.3d 880. What statute of limitations governs damage action against attorney for malpractice, 2 A.L.R.4th 284. Adequacy of defense counsel's representation of criminal client regarding post-plea remedies, 13 A.L.R.4th 533. Adequacy of defense counsel's representation of criminal client regarding appellate and postconviction remedies, 15 A.L.R.4th 582. Attorney's delay in handling decedent's estate as ground for disciplinary action, 21 A.L.R.4th 75. Disciplinary action against attorney based on communications to judge respecting merits of cause, 22 A.L.R.4th 917. Legal malpractice liability for advising client to commit crime or unlawful act, 51 A.L.R.4th 1227. Ratification of attorney's unauthorized compromise of action, 5 A.L.R.5th 56. Admissibility, in prosecution of attorney for collaborating with client in criminal activities, of evidence as to attorney's duties under Code of Professional Responsibility, 111 A.L.R. Fed. 403.