N.M. R. Prof'l. Cond. 16-402
In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order. Except for persons having a managerial responsibility on behalf of the organization, an attorney is not prohibited from communicating directly with employees of a corporation, partnership or other entity about the subject matter of the representation even though the corporation, partnership or entity itself is represented by counsel.
N.M. R. Prof'l. Cond. 16-402
Committee commentary. -
[1] This rule contributes to the proper functioning of the legal system by protecting a person who has chosen to be represented by a lawyer in a matter against possible overreaching by other lawyers who are participating in the matter, interference by those lawyers with the client-lawyer relationship, and the un-counseled disclosure of information relating to the representation.
[2] This rule applies to communications with any person who is represented by counsel concerning the matter to which the communication relates.
[3] The rule applies even though the represented person initiates or consents to the communication. A lawyer must immediately terminate communication with a person if, after commencing communication, the lawyer learns that the person is one with whom communication is not permitted by this rule.
[4] This rule does not prohibit communication with a represented person, or an employee or agent of such a person, concerning matters outside the representation. For example, the existence of a controversy between a government agency and a private party, or between two organizations, does not prohibit a lawyer for either from communicating with non-lawyer representatives of the other regarding a separate matter. Nor does this rule preclude communication with a represented person who is seeking advice from a lawyer who is not otherwise representing a client in the matter. A lawyer may not make a communication prohibited by this rule through the acts of another. See Rule 16-804(A) NMRA. Parties to a matter may communicate directly with each other, and a lawyer is not prohibited from advising a client concerning a communication that the client is legally entitled to make. Also, a lawyer having independent justification or legal authorization for communicating with a represented person is permitted to do so.
[5] The prohibition contained in Rule 16-402 NMRA applies to social media contact about the subject of the representation. A lawyer shall not contact, or direct or authorize a nonlawyer assistant to contact, a represented person to seek access to the restricted portion of the person's social media profile unless provided an express authorization by the person's counsel.
[6] Communications authorized by law may include communications by a lawyer on behalf of a client who is exercising a constitutional or other legal right to communicate with the government. Communications authorized by law may also include investigative activities of lawyers representing governmental entities, directly or through investigative agents, prior to the commencement of criminal or civil enforcement proceedings. When communicating with the accused in a criminal matter, a government lawyer must comply with this rule in addition to honoring the constitutional rights of the accused. The fact that a communication does not violate a state or federal constitutional right is insufficient to establish that the communication is permissible under this rule.
[7] A lawyer who is uncertain whether a communication with a represented person is permissible may seek a court order. A lawyer may also seek a court order in exceptional circumstances to authorize a communication that would otherwise be prohibited by this rule, for example, where communication with a person represented by counsel is necessary to avoid reasonably certain injury.
[8] In the case of a represented organization, this rule prohibits communications with a constituent of the organization who supervises, directs, or regularly consults with the organization's lawyer concerning the matter or has authority to obligate the organization with respect to the matter or whose act or omission in connection with the matter may be imputed to the organization for purposes of civil or criminal liability. Consent of the organization's lawyer is not required for communication with a former constituent. If a constituent of the organization is represented in the matter by his or her own counsel, the consent by that counsel to a communication will be sufficient for purposes of this rule. Compare Rule 16-304(F) NMRA. In communicating with a current or former constituent of an organization, a lawyer must not use methods of obtaining evidence that violate the legal rights of the organization. See Rule 16-404 NMRA.
[9] The prohibition on communications with a represented person only applies in circumstances where the lawyer knows that the person is in fact represented in the matter to be discussed. This means that the lawyer has actual knowledge of the fact of the representation, but such actual knowledge may be inferred from the circumstances. See Rule 16-100(F) NMRA. Thus, the lawyer cannot evade the requirement of obtaining the consent of counsel by closing eyes to the obvious.
[10] In the event the person with whom the lawyer communicates is not known to be represented by counsel in the matter, the lawyer's communications are subject to Rule 16-403 NMRA.
[11] A lawyer who knows a person is covered by a limited-scope representation agreement shall treat that person as an unrepresented person under Rule 16-403 NMRA. The lawyer shall abide by any limitations placed on communications by the person or the person's limited-scope lawyer. The duty to notify the person of the right to limit communications lies with the limited-scope lawyer, as explained in Comment 10 to Rule 16-102 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. 17-8300-018, 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 to clarify that the prohibition of this rule applies to social media contact about the subject of the representation. The 2015 amendment, approved by Supreme Court Order No. 15-8300-007, effective December 31, 2015, revised the committee commentary to add Paragraph 10. The 2008 amendment, approved by Supreme Court Order No. 08-8300-029, effective November 3, 2008, added "by law or a court order" at the end of the first sentence. Constitutionality. - The Supremacy Clause of the United States Constitution did not preclude enforcement of this rule against an Assistant United States Attorney, since it appears to be the intent of Congress that the attorney and others in his position should adhere to the ethical standards prescribed by their licensing states. In re Howes, 1997-NMSC-024, 123 N.M. 311, 940 P.2d 159. Rule not applicable to guardians ad litem. - This rule does not prohibit guardians ad litem from communicating ex parte with department of children, youth and families social workers; although they are attorneys, guardians ad litem do not have typical attorney-client relationships with children, and are therefore not bound by this rule. State ex rel. Children, Youth & Families Dep't v. George F., 1998-NMCA-119, 125 N.M. 597, 964 P.2d 158. "Communication." - By simply listening to a represented criminal defendant, an Assistant United States Attorney "communicated" with the defendant, and by not contacting the defendant's attorney and by encouraging the defendant to talk to him and a detective, the attorney violated this rule and the principles behind it. In re Howes, 1997-NMSC-024, 123 N.M. 311, 940 P.2d 159. Prohibited communications. - An Assistant United States Attorney's communications with a represented criminal defendant were not authorized by law within the meaning of this rule. In re Howes, 1997-NMSC-024, 123 N.M. 311, 940 P.2d 159. Taking statement from defendant without notice to attorney. - Where the prosecuting attorney obtained defendant's statement without informing defendant's attorney of the impending interview and thus giving the attorney a reasonable opportunity to be present at the interview was unethical conduct by the prosecution. United States v. Thomas, 474 F.2d 110 (10th Cir. 1973), cert. denied, 412 U.S. 932, 93 S. Ct. 2758, 37 L. Ed. 2d 160 (1973). Rule applies even if other party initiates contact. - The proscriptions of this rule apply equally to situations when the party represented by another attorney may initiate the contact with opposing counsel. In re Herkenhoff, 1993-NMSC-081, 116 N.M. 622, 866 P.2d 350. Excuse. - Rule 16-502 NMRA did not excuse an Assistant United States Attorney's violation of this rule by communicating with a represented criminal defendant. In re Howes, 1997-NMSC-024, 123 N.M. 311, 940 P.2d 159. Cannot be offered into evidence. - Once a criminal defendant has either retained an attorney or had an attorney appointed for him by the court, any statement obtained by interview from the defendant may not be offered in evidence for any purpose unless the accused's attorney was notified of the interview which produced the statement and was given a reasonable opportunity to be present. United States v. Thomas, 474 F.2d 110 (10th Cir. 1973), cert. denied, 412 U.S. 932, 93 S. Ct. 2758, 37 L. Ed. 2d 160 (1973). Jurisdiction over assistant U.S. attorney. - The New Mexico Disciplinary Board, and not the United States District Court, was the appropriate forum for adjudicating a claim against an assistant United States attorney permitted to practice solely by virtue of his New Mexico license. In re Doe, 801 F. Supp. 478 (D.N.M. 1992). Federal removal not proper. - Assistant United States attorney could not properly remove disciplinary proceeding under this rule to federal court under 28 U.S.C. § 1442, and case was remanded accordingly to the New Mexico disciplinary board. In re Gorence, 810 F. Supp. 1234 (D.N.M. 1992). Am. Jur. 2d, A.L.R. and C.J.S. references. - 7 Am. Jur. 2d Attorneys at Law § 60. Communication with party represented by counsel as ground for disciplining attorney, 26 A.L.R.4th 102. Right of attorney to conduct ex parte interviews with corporate party's nonmanagement employees, 50 A.L.R.4th 652. Right of attorney to conduct ex parte interviews with former corporate employees, 57 A.L.R.5th 633. Attorney's liability for nondisclosure or misrepresentation to third-party nonclients in private civil actions under federal securities laws, 112 A.L.R. Fed. 141. 7 C.J.S. Attorney and Client §§ 77 to 87.