N.M. R. Prof'l. Cond. 16-118
N.M. R. Prof'l. Cond. 16-118
Committee commentary. -
[1] Prospective clients, like clients, may disclose information to a lawyer, place documents or other property in the lawyer's custody, or rely on the lawyer's advice. A lawyer's consultations with a prospective client usually are limited in time and depth and leave both the prospective client and the lawyer free (and sometimes required) to proceed no further. Hence, prospective clients should receive some but not all of the protection afforded clients.
[2] A person becomes a prospective client by consulting with a lawyer about the possibility of forming a client-lawyer relationship with respect to a matter. Whether communications, including written, oral, or electronic communications, constitute a consultation depends on the circumstances. For example, a consultation is likely to have occurred if a lawyer, either in person or through the lawyer's advertising in any medium, specifically requests or invites the submission of information about a potential representation without clear and reasonably understandable warnings and cautionary statements that limit the lawyer's obligations, and a person provides information in response. See also Comment [4]. In contrast, a consultation does not occur if a person provides information to a lawyer in response to advertising that merely describes the lawyer's education, experience, areas of practice, and contact information, or provides legal information of general interest. Such a person who communicates information unilaterally to a lawyer, without any reasonable expectation that the lawyer is willing to discuss the possibility of forming a client-lawyer relationship, is not a "prospective client" within the meaning of Paragraph A.
[3] It is often necessary for a prospective client to reveal information to the lawyer during an initial consultation prior to the decision about formation of a client-lawyer relationship. The lawyer often must learn such information to determine whether there is a conflict of interest with an existing client and whether the matter is one that the lawyer is willing to undertake. Paragraph B prohibits the lawyer from using or revealing that information, except as permitted by Rule 16-109 NMRA of the Rules of Professional Conduct, even if the client or lawyer decides not to proceed with the representation. The duty exists regardless of how brief the initial conference may be.
[4] In order to avoid acquiring disqualifying information from a prospective client, a lawyer considering whether or not to undertake a new matter should limit the initial consultation to only such information as reasonably appears necessary for that purpose. Where the information indicates that a conflict of interest or other reason for non-representation exists, the lawyer should so inform the prospective client or decline the representation. If the prospective client wishes to retain the lawyer, and if consent is possible under Rule 16-107 NMRA of the Rules of Professional Conduct, then consent from all affected present or former clients must be obtained before accepting the representation.
[5] A lawyer may condition a consultation with a prospective client on the person's informed consent that no information disclosed during the consultation will prohibit the lawyer from representing a different client in the matter. See Paragraph E of Terminology of the Rules of Professional Conduct for the definition of "informed consent." If the agreement expressly so provides, the prospective client may also consent to the lawyer's subsequent use of information received from the prospective client.
[6] Even in the absence of an agreement, under Paragraph C, the lawyer is not prohibited from representing a client with interests adverse to those of the prospective client in the same or a substantially related matter unless the lawyer has received from the prospective client information that could be significantly harmful if used in the matter.
[7] Under Paragraph C, the prohibition in this rule is imputed to other lawyers as provided in Rule 16-110 NMRA of the Rules of Professional Conduct, but under Subparagraph (D)(1), imputation may be avoided if the lawyer obtains the informed consent, confirmed in writing, of both the prospective and affected clients. In the alternative, imputation may be avoided if the conditions of Subparagraph (D)(2) are met and all disqualified lawyers are timely screened and written notice is promptly given to the prospective client. See Paragraph K of Terminology of the Rules of Professional Conduct (requirements for screening procedures). Subparagraph (D)(2)(a) 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.
[8] Notice, including a general description of the subject matter about which the lawyer was consulted, and of the screening procedures employed, generally should be given as soon as practicable after the need for screening becomes apparent.
[9] For the duty of competence of a lawyer who gives assistance on the merits of a matter to a prospective client, see Rule 16-101 NMRA of the Rules of Professional Conduct. For a lawyer's duties when a prospective client entrusts valuables or papers to the lawyer's care, see Rule 16-115 NMRA of the Rules of Professional Conduct.
[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, in Paragraph A, after "A person who", deleted "discusses" and added "consults", and after "lawyer", added "about"; in Paragraph B, after "lawyer who has", deleted "had discussions with" and added "learned information from", after "reveal", added "that", after "information", deleted "learned in the consultation"; in the committee commentary, in Paragraph 2, deleted "Not all persons who communicate information to a lawyer are entitled to protection under this rule." and added the next four sentences; and made certain technical changes.