N.M. R. Prof'l. Cond. 16-701
A lawyer shall not make, elicit, or endorse a false or misleading communication about the lawyer or the lawyer's services. A communication is false or misleading if it contains a material misrepresentation of fact or law; omits a fact necessary to make the statement considered as a whole not materially misleading; or contains a testimonial about, or endorsement of, the lawyer that is misleading.
N.M. R. Prof'l. Cond. 16-701
[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 Committee commentary: [1] This rule governs all communications about a lawyer's services, including advertising. Whatever means are used to make known a lawyer's services, statements about them should be truthful. [2] Misleading truthful statements are also prohibited by this rule. A truthful statement is misleading if it omits a fact necessary to make the lawyer's communication considered as a whole not materially misleading. A truthful statement is misleading if a substantial likelihood exists that it will lead a reasonable person to formulate a specific conclusion about the lawyer or that it will lead a reasonable person to formulate a specific conclusion about the lawyer or the lawyer's services for which there is no reasonable factual foundation. A truthful statement is also misleading if presented in a way that creates a substantial likelihood that a reasonable person would believe that lawyer's communication requires that person to take further action when, in fact, no action is required. [3] It is misleading for a communication to provide information about a lawyer's fee without indicating the client's responsibilities for costs, if any. If the client may be responsible for costs in the absence of a recovery, a communication shall not indicate that the lawyer's fee is contingent on obtaining a recovery unless the communication also discloses that the client may be responsible for court costs and the expenses of litigation. See Rule 16-105(C) NMRA. [4] A communication that truthfully reports a lawyer's achievements on behalf of clients or former clients may be misleading if presented so as to lead a reasonable person to form an unjustified expectation that the same results could be obtained for other clients in similar matters without reference to the specific factual and legal circumstances of each client's case. Similarly, an unsubstantiated claim about a lawyer's or a law firm's services or 10 fees, or an unsubstantiated comparison of the lawyer's or law firm's services or fees with of other lawyers or law firms, may be misleading if presented with such specificity as would lead a reasonable person to conclude that the comparison or claim can be substantiated. The inclusion of an appropriate disclaimer or qualifying language may preclude a finding that a statement is likely to create unjustified expectations or otherwise mislead the public. [5] It is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit, or misrepresentation. Rule 16-804(C) NMRA. See Rule 16-804(E) NMRA for the prohibition against stating or implying an ability to improperly influence a government agency or official or to achieve results by means that violate the Rules of Professional Conduct or other law. [6] Firm names, letterhead, and professional designations are communications concerning a lawyer's services. A firm may be designated by the names of all or some of its current members, by the names of deceased members where there has been a succession in the firm's identity, or by a trade name if it is not false or misleading. A lawyer or law firm also may be designated by a distinctive website address, social media username, or comparable professional designation that is not misleading. A law firm name or designation is misleading if it implies a connection with a government agency, with a deceased lawyer who was not a former member of the firm, with a lawyer not associated with the firm or a predecessor firm, with a nonlawyer, or with a public or charitable legal services organization. If a firm uses a trade name that includes a geographical name such as "Springfield Legal Clinic," an express statement explaining that it is not a public legal aid organization may be required to avoid a misleading implication. [7] A law firm with offices in more than one jurisdiction may use the same name or other professional designation in each jurisdiction, but identification of the lawyers in an office of the firm shall indicate the jurisdictional limitations on those not licensed to practice in the jurisdiction where the office is located. [8] Lawyers may not imply or hold themselves out as practicing together in one firm when they are not a firm, as defined in Rule 16-100(C) NMRA, because to do so may be false and misleading. [9] It is misleading to use the name of a lawyer holding a public office in the name of a law firm, or in communications on the law firm's behalf, during any substantial period in which the lawyer is not actively and regularly practicing with the firm. [10] A lawyer or nonlawyer assistant shall not make, endorse, or elicit a false or misleading statement on social media about the lawyer or the lawyer's services. Furthermore, a lawyer has a duty to remove, to the extent reasonably possible, information known to the lawyer that does not comply with the Rules of Professional Conduct. The 2017 amendment, approved by Supreme Court Order No. 17-8300-018, effective December 31, 2017, after "shall not make", added "elicit, or endorse"; and added the committee commentary. The 2015 amendment, approved by Supreme Court Order No. 15-8300-007, effective December 31, 2015, in the ABA Comment, in Paragraph 1, after "permitted by", deleted "Rule 7.2" and added "Rule 16-702 NMRA"; in Paragraph 3, after "mislead", deleted "a prospective client" and added "the public"; and in Paragraph 4, after "See also", deleted "Rule 8.4(c)" and added "Rule 16-804(E) NMRA". The 2005 amendment, effective January 20, 2005, replaced all of Rule 16-701 NMRA with the present rule, withdrew the commentary entitled "General Comments on the Regulation of Lawyer Advertising" which included the "State Bar Task Force Comments" and the "New Mexico Trial Lawyers Association Comments" and replaced the second paragraph of the ABA comment to the model rule with a new the second, third and fourth paragraph. The 1999 amendment, effective January 1, 2000, added the language following Subparagraph C(4); near the end of the first sentence in Paragraph D, inserted "or advertisements the contents of which are limited to the information described in Paragraph D of Rule 16-702", added the next-to-last-sentence, and added present Subparagraph D(4) and Paragraph E. The 1998 amendment, effective January 1, 1999, in Paragraph B deleted former Subparagraph (5), which read: "does not disclose the location, by city, town or county of the offices of the lawyer or lawyers whose services are being advertised;" and redesignated former Subparagraph (6) as Subparagraph (5); and in Subparagraph C(4) deleted ", except as provided in Paragraph A of Rule 16-703," following "other solicitation" near the beginning and added "unless the accident occurred more than thirty (30) days prior to the mailing or other communication or the communication or other solicitation is permitted by Rule 16-703(A) of these rules" at the end. The 1993 amendment, effective November 1, 1993, in the introductory language of Paragraph D, inserted "shall be at the beginning of the presentation and" in the second sentence and inserted "the top of" in the third sentence; substituted "Subparagraphs (1) through (9)" for "Subparagraphs (2) through (8)" in Subparagraph D(1); and substituted the language beginning "the classified" for "or" at the end of Subparagraph D(2). The second 1992 amendment, effective December 1, 1992, substituted "lawyers or law firm" for "or lawyers" in Subparagraph (4) of Paragraph B. The first 1992 amendment, effective for all lawyer advertisements mailed, displayed or broadcast on and after August 1, 1992, added the Paragraph A designation to the provisions of the former rule, rewriting those provisions, and added Paragraphs B to D. Law reviews. - For note, "The Tenth Circuit Strikes Down New Mexico's Ban on Targeted Direct-Mail Lawyer Advertising - Revo v. Disciplinary Board of the Supreme Court," see 28 N.M.L. Rev. 641 (1998). Am. Jur. 2d, A.L.R. and C.J.S. references. - 7 Am. Jur. 2d Attorneys at Law § 66. Lawyer publicity as breach of legal ethics, 4 A.L.R.4th 306. Modern status of law regarding solicitation of business by or for attorney, 5 A.L.R.4th 866. Advertising as ground for disciplining attorney, 30 A.L.R.4th 742. Validity of state judicial or bar association rule forbidding use of law firm name unless it contains exclusively names of persons who are or were members of that state's bar, as it applies to out-of-state law firm, 33 A.L.R.4th 404. 7 C.J.S. Attorney and Client §§ 77 to 87.