N.M. R. Prof'l. Cond. 16-305
A lawyer shall not:
N.M. R. Prof'l. Cond. 16-305
Committee commentary. -
[1] Many forms of improper influence upon a tribunal are proscribed by criminal law. Others are specified in the Code of Judicial Conduct, with which an advocate should be familiar. A lawyer is required to avoid contributing to a violation of such provisions.
[2] During a proceeding a lawyer may not communicate ex parte with persons serving in an official capacity in the proceeding, such as judges, masters, or jurors, unless authorized to do so by law or court order.
[3] A lawyer may on occasion want to communicate with a juror or prospective juror after the jury has been discharged. The lawyer may do so unless the communication is prohibited by law or a court order but must respect the desire of the juror not to talk with the lawyer. The lawyer may not engage in improper conduct during the communication.
[4] The advocate's function is to present evidence and argument so that the cause may be decided according to law. Refraining from abusive or obstreperous conduct is a corollary of the advocate's right to speak on behalf of litigants. A lawyer may stand firm against abuse by a judge but should avoid reciprocation. The judge's default is no justification for similar dereliction by an advocate. An advocate can present the cause, protect the record for subsequent review, and preserve professional integrity by patient firmness no less effectively than by belligerence or theatrics.
[5] The duty to refrain from disruptive conduct applies to any proceeding of a tribunal, including a deposition. See Rule 16-100(M) NMRA.
[6] A lawyer may view and research a prospective or sitting juror's public social media profile and posts. A lawyer may not have direct communication with the juror, whether initiated by the lawyer, the lawyer's nonlawyer assistant, or the juror. An automatically generated communication to a juror by the social media service that is not intended by the lawyer or the nonlawyer assistant, is not a communication within the meaning of Rule 16-305 NMRA.
[Adopted by Supreme Court Order No. 08-8300-029, effective November 3, 2008; as amended by Supreme Court Order No. 17-8300-018, effective December 31, 2017.]
ANNOTATIONS The 2017 amendment, approved by Supreme Court Order No. 17-8300-018, effective December 31, 2017, revised the committee commentary regarding viewing a prospective juror's social media profile and the prohibition of having direct communication with a prospective juror. The 2008 amendment, approved by Supreme Court Order No. 08-8300-029, effective November 3, 2008, in Paragraph A, deleted "these rules or the Code of Judicial Conduct"; in Paragraph B, changed "except as permitted by law" to "during the proceeding unless authorized to do so by law or court order"; added new Paragraph C; and relettered former Paragraph C as Paragraph D. Compiler's notes. - The old ABA Comment was replaced by the 2008 committee commentary. Am. Jur. 2d, A.L.R. and C.J.S. references. - 7 Am. Jur. 2d Attorneys at Law §§ 41, 67 to 73. Propriety of attorney's communication with jurors after trial, 19 A.L.R.4th 1209. Disciplinary action against attorney based on communications to judge respecting merits of cause, 22 A.L.R.4th 917. Disciplinary action against attorney for making gift or loan to judge, 29 A.L.R.5th 505. 7 C.J.S. Attorney and Client §§ 77 to 87.