N.M. R. Prof'l. Cond. 16-110
N.M. R. Prof'l. Cond. 16-110
Committee commentary. -
Definition of "Firm"
[1] For purposes of the Rules of Professional Conduct, the term "firm" denotes lawyers in a law partnership, professional corporation, sole proprietorship or other association authorized to practice law, or lawyers employed in a legal services organization or the legal department of a corporation or other organization. See Paragraph C of Terminology of the Rules of Professional Conduct. Whether two or more lawyers constitute a firm within this definition can depend on the specific facts. See Committee commentary to Terminology of the Rules of Professional Conduct.
Principles of Imputed Disqualification
[2] The rule of imputed disqualification stated in Paragraph A gives effect to the principle of loyalty to the client as it applies to lawyers who practice in a law firm. Such situations can be considered from the premise that a firm of lawyers is essentially one lawyer for purposes of the rules governing loyalty to the client, or from the premise that each lawyer is vicariously bound by the obligation of loyalty owed by each lawyer with whom the lawyer is associated. Paragraph A operates only among the lawyers currently associated in a firm. When a lawyer moves from one firm to another, the situation is governed by Rules 16-109(B) and 16-110(B) NMRA of the Rules of Professional Conduct.
[3] Paragraph A of this rule does not prohibit representation where neither questions of client loyalty nor protection of confidential information are presented. Where one lawyer in a firm could not effectively represent a given client because of strong political beliefs, for example, but that lawyer will do no work on the case and the personal beliefs of the lawyer will not materially limit the representation by others in the firm, the firm should not be disqualified. On the other hand, if an opposing party in a case was owned by a lawyer in the law firm, and others in the firm would be materially limited in pursuing the matter because of loyalty to that lawyer, the personal disqualification of the lawyer would be imputed to all others in the firm.
[4] The rule stated in Paragraph A also does not prohibit representation by others in the law firm where the person prohibited from involvement in a matter is a non-lawyer, such as a paralegal or legal secretary. Nor does Paragraph A prohibit representation if the lawyer is prohibited from acting because of events before the person became a lawyer, for example, work that the person did while a law student. Such persons, however, ordinarily must be screened from any personal participation in the matter to avoid communication to others in the firm of confidential information that both the non-lawyers and the firm have a legal duty to protect. See Paragraph K of Terminology of the Rules of Professional Conduct.
[5] Rule 16-110(B) NMRA of the Rules of Professional Conduct operates to permit a law firm, under certain circumstances, to represent a person with interests directly adverse to those of a client represented by a lawyer who formerly was associated with the firm. The rule applies regardless of when the formerly associated lawyer represented the client. However, the law firm may not represent a person with interests adverse to those of a present client of the firm, which would violate Rule 16-107 NMRA of the Rules of Professional Conduct. Moreover, the firm may not represent the person where the matter is the same or substantially related to that in which the formerly associated lawyer represented the client and any other lawyer currently in the firm has material information protected by Rules 16-106 and 16-109(C) NMRA of the Rules of Professional Conduct.
[6] Where the conditions of Paragraph C of this rule are met, imputation is removed, and consent to the new representation is not required. Lawyers should be aware, however, that courts may impose more stringent obligations in ruling upon motions to disqualify a lawyer from pending litigation.
[7] A motion to disqualify under Subparagraph (C)(2) of this rule requires a determination as to whether the newly associated lawyer had a substantial role in the relevant matter. Because Paragraph C applies only to lawyers who would otherwise be disqualified under Rule 16-109 NMRA, the lawyer will have already been determined to have formerly represented a client in the same or a substantially related matter. When analyzing whether the former representation was in the same or a substantially related matter, the former client shall not be required to reveal confidential information learned by the lawyer. See Leon, Ltd., v. Carver, 1986-NMSC-015, ¶ 9, 104 N.M. 29. See also Rule 16-109, Committee commentary ¶ 3. Confidential information must continue to be protected when determining whether a lawyer had a substantial role in a matter, so as not to undermine the protections of Leon and Rule 16-109. In particular, the former client shall not be required to reveal confidential information simply because the inquiry has shifted from Rule 16-109 to Rule 16-110 NMRA. Analysis under Subparagraph (C)(2) should thus begin with a rebuttable presumption that the lawyer had a substantial role in the matter at issue. This presumption can be overcome by a preponderance of non-confidential evidence showing that the lawyer did not, in fact, have a substantial role in the matter. Relevant non-confidential evidence may include redacted billing statements as well as other non-privileged documents or testimony. For further guidance see Mercer v. Reynolds, 2013-NMSC-002, 292 P.3d 466; Living Cross Ambulance Serv., Inc., v. N.M. Pub. Regulation Comm'n, 2014-NMSC- 036, ¶¶ 13-22, 338 P.3d 1258; Bowers v. Ophthalmology Group, 733 F.3d 647, 650-54 (6th Cir. 2013); Koch v. Koch Industries, 798 F. Supp. 1525, 1536-37, ¶¶ 15-16 (D. Kan. 1992); and Charles W. Wolfram, "Former-Client Conflicts," 10 Geo. J. Legal Ethics 677, 717-22, § VI(D) (1997).
[8] Requirements for screening procedures are stated in Paragraph K of Terminology of the Rules of Professional Conduct. Subparagraph (C)(2) of this rule does not prohibit the screened lawyer from receiving a salary or partnership share established by prior independent agreement, but that lawyer may not receive compensation directly related to the matter in which the lawyer is disqualified.
[9] Notice, including a description of the screened lawyer's prior representation and of the screening procedures employed, generally should be given as soon as practicable after the need for screening becomes apparent.
[10] Rule 16-110(D) NMRA of the Rules of Professional Conduct removes imputation with the informed consent of the affected client or former client under the conditions stated in Rule 16-107 NMRA of the Rules of Professional Conduct. The conditions stated in Rule 16-107 require the lawyer to determine that the representation is not prohibited by Rule 16-107(B) and that each affected client or former client has given informed consent to the representation, confirmed in writing. In some cases, the risk may be so severe that the conflict may not be cured by client consent. For a discussion of the effectiveness of client waivers of conflicts that might arise in the future, see Committee commentary to Rule 16-107 NMRA of the Rules of Professional Conduct. For a definition of "informed consent," see Paragraph E of Terminology of the Rules of Professional Conduct.
[11] Where a lawyer has joined a private firm after having represented the government, imputation is governed by Rule 16-111(B) and (C) NMRA of the Rules of Professional Conduct, and is not governed by this rule. Under Rule 16-111(D) NMRA of the Rules of Professional Conduct, where a lawyer represents the government after having served clients in private practice, nongovernmental employment or in another government agency, former-client conflicts are not imputed to government lawyers associated with the individually disqualified lawyer.
[12] Where a lawyer is prohibited from engaging in certain transactions under Rule 16-108 NMRA of the Rules of Professional Conduct, Paragraph J of that rule, and not this rule, determines whether that prohibition also applies to other lawyers associated in a firm with the personally prohibited lawyer.
[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.]
.ANNOTATIONS The 2015 amendment, approved by Supreme Court Order No. 15-8300-007, effective December 31, 2015, made stylistic changes and revised the committee commentary to provide guidance regarding motions to disqualify under the Rules of Professional Conduct; in Subparagraph B(2), after "Rule 16-106 NMRA and", deleted "Paragraph C of", and after "Rule 16-109", added "(C)"; in the introductory sentence of Paragraph C, after "disqualified under", deleted "Paragraph A or B of", and after "Rule 16-109", added "(A) or (B)"; and in the committee commentary, added Paragraph [7], redesignated the succeeding paragraphs accordingly, and made stylistic changes throughout. The 2008 amendment, approved by Supreme Court Order No. 08-8300-029, effective November 3, 2008, changed the title from "Imputed disqualification" to the current title; in Paragraph A, deleted references to Paragraph C of Rule 16-108 NMRA and Rule 16-202 NMRA and added the exception at the end of the sentence for prohibitions based a personal interest of the prohibited lawyer; deleted former Paragraph B which prohibited a firm from representing a person in a matter in which a lawyer who has joined the firm or in which another firm with which the lawyer was associated had represented the person; relettered former Paragraph C as Paragraph B; in Paragraph B, added "and not currently represented by the firm" and changed the reference in Subparagraph (2) from Paragraph B to Paragraph C of Rule 16-109 NMRA; and added new Paragraphs C and E. Constitutional rights violation requires "actual" conflict. - A conflict of interest violation of these rules will not in itself constitute a violation of constitutional rights because under case law an "actual" conflict must be established. United States v. Gallegos, 39 F.3d 276 (10th Cir. 1994). Conflict found. - In a criminal prosecution, the trial court erred in denying the motion of the defendant's attorney to withdraw when the attorney had discovered on the eve of trial that his law firm was prosecuting the defendant in municipal court for a traffic offense. State v. Almanza, 1996-NMCA-013, 121 N.M. 300, 910 P.2d 934. Disqualification of law firm. - When an attorney has played a substantial role on one side of a lawsuit and subsequently joins a law firm on the opposing side of the lawsuit, both the attorney and the new firm are disqualified from any further representation, absent informed consent of the former client. Screening the new attorney from any involvement in the lawsuit does not cure the conflict. Mercer v. Reynolds, 2013-NMSC-002, 292 P.3d 466. Where, in a lawsuit that involved the interpretation of an easement between the landowner and the railway and damages resulting from the construction of diversion facilities on the easement by the railway's contractor, the associate attorney of the initial law firm employed by the landowner entered an appearance in a removal proceeding in federal court; the federal court remanded the case to state court; the associate attorney did not enter an appearance in state court, but continued to be actively involved in the state court proceeding and was privy to all strategy and case management decisions and privileged communications with the landowner; the landowner employed a second law firm and the landowner's original law firm ceased to represent the landowner; the contractor's law firm hired the associate attorney; the contractor's law firm took steps to screen the associate attorney from involvement in the case and protect any confidential information that the associate attorney had acquired from representation of the landowner, and the landowner refused to waive the conflict, the contractor's law firm was disqualified from representing the contractor. Mercer v. Reynolds, 2013-NMSC-002, 292 P.3d 466. Disqualification of district attorney's office. - A district attorney, who worked in private practice with an attorney representing a defendant in a capital case and who represented the defendant at least one hearing in the case, is disqualified from participation in the case against the defendant, and given the district attorney's role as supervisor and employer of the deputies, assistants and investigators who might otherwise proceed in the case, the district attorney's entire office is disqualified. 2005 Op. Att'y Gen. No. 05-01.