N.M. R. Prof'l. Cond. 16-702
N.M. R. Prof'l. Cond. 16-702
Committee commentary. -
[1] This rule permits public dissemination of information concerning a lawyer's or law firm's name, address, email address, website, and telephone number; the kinds of services the lawyer will undertake; the basis on which the lawyer's fees are determined, including prices for specific services and payment and credit arrangements; a lawyer's foreign language ability; names of references and, with their consent, names of clients regularly represented; and other information that might invite the attention of those seeking legal assistance.
[2] Except as permitted under Subparagraphs (B)(1) through (5), lawyers are not permitted to pay others for recommending the lawyer's services. A communication contains a recommendation if it endorses or vouches for a lawyer's credentials, abilities, competence, character, or other professional qualities. Directory listings and group advertisements that list lawyers by practice 5 area, without more, do not constitute impermissible "recommendations."
[3] Subparagraph (B)(1), allows a lawyer to pay for advertising and communications permitted by this rule, including the costs of print directory listings, on-line directory listings, newspaper ads, television and radio airtime, domain-name registrations, sponsorship fees, Internet-based advertisements, and group advertising. A lawyer may compensate employees, agents and vendors who are engaged to provide marketing or client-development services, such as publicists, public-relations personnel, business-development staff, television and 12 radio station employees or spokespersons, and website designers.
[4] Paragraph (B)(5) permits nominal gifts as might be given for holidays, or other ordinary social hospitality. A gift is prohibited if offered or given in consideration of any promise, agreement or understanding that the gift would be forthcoming or that referral would be made or encouraged in the future.
[5] A lawyer may pay others for generating client leads, such as Internet-based client leads, as long as the lead generator does not recommend the lawyer, any payment to the lead generator is consistent with Rule 16-105(E) NMRA (fee splitting) and Rule 16-504 NMRA (professional independence of the lawyer), and the lead generator's communications are consistent with Rule 16-701 NMRA (communications concerning a lawyer's services). To comply with Rule 16-701 NMRA, a lawyer must not pay a lead generator that states, implies, or creates a reasonable impression that it is recommending the lawyer, is making the referral without payment from the lawyer, or has analyzed a person's legal problems when determining which lawyer should receive the referral. See also Rule 16-503 (duties of lawyers and law firms with respect to the conduct of non-lawyers); Rule 16-804(A) (duty to avoid violating the rules through the acts of another).
[6] A lawyer may pay the usual charges of a legal service plan or a not-for-profit or qualified lawyer referral service. A legal service plan is a prepaid or group legal service plan or a similar delivery system that assists people who seek to secure legal representation. A lawyer referral service, on the other hand, is any organization that holds itself out to the public as a lawyer referral service. Qualified referral services are consumer-oriented organizations that provide unbiased referrals to lawyers with appropriate experience in the subject matter of the representation and afford other client protections, such as complaint procedures or malpractice insurance requirements. Consequently, this rule only permits a lawyer to pay the usual charges of a not-for-profit or qualified lawyer referral service. A qualified lawyer referral service is one that is approved by an appropriate regulatory authority as affording adequate protections for the public. See, e.g., the American Bar Association's Model Supreme Court Rules Governing Lawyer Referral Services and Model Lawyer Referral and Information Service Quality Assurance Act.
[7] A lawyer who accepts assignments or referrals from a legal service plan or referrals from a lawyer referral service must act reasonably to assure that the activities of the plan or service are compatible with the lawyer's professional obligations. Legal service plans and lawyer referral services may communicate with the public, but the communication must be in conformity with these rules. Thus, advertising must not be false or misleading, as would be the case if the communications of a group advertising program or a group legal services plan would mislead the public to think that it was a lawyer referral service sponsored by a state agency or bar association.
[8] A lawyer also may agree to refer clients to another lawyer or a non-lawyer professional, in return for the undertaking of that person to refer clients or customers to the lawyer. The reciprocal referral arrangements must not interfere with the lawyer's professional judgment as to making referrals or as to providing substantive legal services. See Rule 16-201 NMRA and Rule 16-504(C) NMRA. Except as provided in Rule 16-105(E) NMRA, a lawyer who receives referrals from a lawyer or non-lawyer professional must not pay anything solely for the referral, but the lawyer does not violate Paragraph B of this rule by agreeing to refer clients to the other lawyer or non-lawyer professional, so long as the reciprocal referral agreement is not exclusive and the client is informed of the referral agreement. Conflicts of interest created by these types of arrangements are governed by Rule 16-107 NMRA. Reciprocal referral agreements should not be of indefinite duration and should be reviewed periodically to determine whether they comply with these rules. This rule does not restrict referrals or divisions of revenues or net income among lawyers within firms comprised of multiple entities.
Communications about Fields of Practice
[9] Paragraph A of this rule permits a lawyer to communicate that the lawyer does or 6 does not practice in particular areas of law. A lawyer is generally permitted to state that the lawyer "concentrates in" or is a "specialist," practices a "specialty," or "specializes in" particular fields based on the lawyer's experience, specialize training or education, but those communications are subject to the "false and misleading" standard applied in Rule 16-701 NMRA to communications concerning a lawyer's services.
[10] The Patent and Trademark Office has a long-established policy of designating lawyers practicing before that Office. The designation of Admiralty practice also has a long historical tradition associated with maritime commerce and the federal courts. A lawyer's communications about these practice areas are not prohibited by this rule.
[11] This rule permits a lawyer to state that the lawyer is certified as a specialist in a field of law if the certification is granted by the State Bar of New Mexico; by an organization that has been approved by an appropriate authority of another state, the District of Columbia, or a U.S. Territory, or accredited by the American Bar Association or another organization, such as a state supreme court or a state bar association, that has been approved by the authority of the state, the District of Columbia, or a U.S. Territory to accredit organizations that certify lawyers as specialists. Certification signifies that an objective entity has recognized an advanced degree of knowledge and experience in the specialty area greater than is suggested by general licensure to practice law. Certifying organizations may be expected to apply standards of experience, knowledge, and proficiency to ensure that a lawyer's recognition as a specialist is meaningful and reliable. In order to ensure that consumers can obtain access to useful information about an organization granting certification, the name of the certifying organization must be included in any communication regarding the certification.
[12] This rule requires that any communication about a lawyer or a law firm's services include the name of, and contact information for, the lawyer or law firm. Contact information includes a website address, a telephone number, an email address, or a physical office location.
[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 10 Court Order No. 21-8300-014, effective December 31, 2021.]
.ANNOTATIONS The 2015 amendment, approved by Supreme Court Order No. 15-8300-007, effective December 31, 2015, substantially revised the committee commentary to provide additional guidance for practitioners regarding lawyer referrals; throughout the committee commentary, replaced "prospective clients" with "the public" and made stylistic changes. The 2008 amendment, approved by Supreme Court Order No. 08-8300-29, effective November 3, 2008, deleted "and solicitation" from the title; deleted former Paragraph A which permitted a lawyer to advertise legal services through the public media; deleted former Paragraph B which required a lawyer to keep a copy or recording of advertisements or solicitations; deleted former Paragraph C which prohibited a lawyer from giving anything of value or any benefit to a person for recommending the lawyer's services; deleted former Paragraph D which required that a lawyer's advertisement or solicitation include specified information; deleted former Paragraph E which specified the permissible information about fees that an advertisement or solicitation could contain; and added new Paragraphs A through C. The 2000 amendment, effective November 1, 2000, substituted "that" for "whether" following "(b) specifically states" in Paragraph E(3) and added the "Supreme Court Committee on Rules of Professional Conduct Comments" following the ABA Comment. The 1999 amendment, effective January 1, 2000, in Paragraph A, near the end, substituted "internet or through other written or electronice communication" for "or through written communication." The 1993 amendment, effective November 1, 1993, inserted "or a statement to the effect that the charging of a fee is contingent on outcome or that the fee will be a percentage of the recovery" in Subparagraph E(3) and added the last sentence of Subpargraph E(7). The 1992 amendment, effective for all lawyer advertisements mailed, displayed or broadcast on and after August 1, 1992, in Paragraph A, substituted "these rules" for "Rule 16-701" and inserted "billboards or signs"; rewrote Paragraph B; in Paragraph C, substituted "Payments for referrals" for "Expense limitations" in the heading and inserted "or otherwise provide a benefit"; deleted former Paragraphs D and E, relating to responsibility for content and claims of specialization, respectively; and added present Paragraphs D and E. Am. Jur. 2d, A.L.R. and C.J.S. references. - 7 Am. Jur. 2d Attorneys at Law §§ 62 to 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.