N.M. R. Prof'l. Cond. 16-801
An applicant for admission to the bar, or a lawyer in connection with a bar admission application or in connection with a disciplinary matter, shall not:
N.M. R. Prof'l. Cond. 16-801
Committee commentary. -
[1] The duty imposed by this rule extends to persons seeking admission to the bar as well as to lawyers. Hence, if a person makes a material false statement in connection with an application for admission, it may be the basis for subsequent disciplinary action if the person is admitted and, in any event, may be relevant in a subsequent admission application. The duty imposed by this rule applies to a lawyer's own admission or discipline as well as to that of others. Thus, it is a separate professional offense for a lawyer to knowingly make a misrepresentation or omission in connection with a disciplinary investigation of the lawyer's own conduct. Paragraph B of this rule also requires correction of any prior misstatement in the matter that the applicant or lawyer may have made and affirmative clarification of any misunderstanding on the part of the admissions or disciplinary authority of which the person involved becomes aware.
[2] This rule is subject to the provisions of the Fifth Amendment of the United States Constitution and corresponding provisions of state constitutions. A person relying on such a provision in response to a question, however, should do so openly and not use the right of nondisclosure as a justification for failure to comply with this rule.
[3] A lawyer representing an applicant for admission to the bar or representing a lawyer who is the subject of a disciplinary inquiry or proceeding is governed by the rules applicable to the client-lawyer relationship, including Rule 16-106 NMRA of the Rules of Professional Conduct and, in some cases, Rule 16-303 NMRA of the Rules of Professional Conduct.
[Adopted by Supreme Court Order No. 08-8300-29, effective November 3, 2008.]
.ANNOTATIONS The 2008 amendment, approved by Supreme Court Order No. 08-8300-29, effective November 3, 2008, added "of the Rules of Professional Conduct" in Paragraph B. Compiler's notes. - The old ABA Comment was replaced by the 2008 committee commentary.
For Parental Responsibility Act, see Chapter 40, Article 5A NMSA 1978. For effect of Parental Responsibility Act on licensing of lawyers and other persons by the supreme court, see 40-5A-10 NMSA 1978. Protection of public is primary concern. - The court's primary concern in all cases involving attorney discipline is to assure that the public is protected from dishonest attorneys, whatever the explanation for the dishonesty. In re Stewart, 1986-NMSC-043, 104 N.M. 337, 721 P.2d 405. Membership in bar requires more than an absence of intention to do wrong; otherwise a high standard of conduct could not be maintained. In re Nelson, 1969-NMSC-012, 79 N.M. 779, 450 P.2d 188. Ignoring inquiries of disciplinary counsel. - The act of ignoring the inquiries of disciplinary counsel concerning allegations of misconduct is a violation of this rule (former Rule 1-101). In re Martinez, 1986-NMSC-028, 104 N.M. 152, 717 P.2d 1121. Attorney's knowingly false statement to hearing committee. - Attorney violated this rule when he knowingly made a false statement to the hearing committee when he stated that a former client's judgment against him in a civil suit for debt and money due, conspiracy and fraud did not involve a finding of fraud. In re C'De Baca, 1989-NMSC-070, 109 N.M. 151, 782 P.2d 1348. Knowingly making a false statement in disciplinary proceedings. - Where respondent, representing a client who was charged with incest, criminal sexual contact, and criminal sexual penetration of his granddaughter, prepared affidavits for granddaughter, granddaughter's father, and another witness based on their statements to respondent in which they all claimed that client was innocent of the crimes for which he was charged, and where respondent knew his client had committed incest and knew the affidavits contained perjured statements, and where, during an underlying disciplinary proceeding, respondent continued to deny knowledge of client's guilt was sufficient evidence to support the conclusion that respondent made false statements of material fact in connection with a disciplinary matter. In re Venie, 2017-NMSC-018. Indefinite suspension warranted where attorney knowingly made false statements to disciplinary counsel. - Where an attorney, in an attempt to avoid summary judgment on claim preclusion grounds, knowingly made false statements to the district court regarding the identity of his client, representing that his client was not the same person as the plaintiff in a previously filed federal lawsuit against the Roosevelt County Detention Center, there was sufficient evidence to support the disciplinary board's determination that the attorney violated this rule where the attorney falsely stated to disciplinary counsel that opposing counsel in the federal lawsuit had not given notice of or requested the deposition of his client, which was false, and because counsel for the defendants in the federal lawsuit had electronically served on attorney via e-mail a notice of deposition for the client, attorney had constructive notice, if not actual notice, of his false statement at the time that he made it. In re Dixon, 2019-NMSC-006. Cooperation with disciplinary counsel. - An attorney's apparent failure to complete several cases, to take steps to insure that the interests of her clients were protected upon her withdrawal from their cases, and to promptly refund any unearned portions of fees paid in advance, as well as her lack of cooperation with the disciplinary counsel, constitute conduct violative of the professional rules warranting an indefinite suspension from the practice of law. In re Roth, 1987-NMSC-004, 105 N.M. 255, 731 P.2d 951. Moral turpitude is not necessary element to support discipline, and, it may not be synonymous with "conduct contrary to honesty, justice or good morals". In re Morris, 1964-NMSC-235, 74 N.M. 679, 397 P.2d 475. True question in disbarment. - Whether the misconduct with which a person is charged is a crime involving moral turpitude or, if a crime, whether it is malum prohibitum or malum in se or, for that matter, if the act is neither a felony nor misdemeanor, is not the issue. The true question in considering disbarment is: was the act to which respondent pleaded guilty "contrary to honesty, justice or good morals"? In re Morris, 1964-NMSC-235, 74 N.M. 679, 397 P.2d 475, 17 A.L.R.3d 681 (1964). Involuntary manslaughter sufficient to support suspension. - When a member of the bar is guilty of the crime of involuntary manslaughter resulting from driving a motor vehicle while under the influence of intoxicating liquor, such offense is an act contrary to honesty, justice or good morals sufficient to support a suspension from practice. In re Morris, 1964-NMSC-235, 74 N.M. 679, 397 P.2d 475, 17 A.L.R.3d 681 (1964). One-year suspension warranted. - Attorney's actions warranted a one-year suspension since he made misrepresentations to a court, failed to return unearned fees, failed to render an accounting to a client and acted otherwise to prejudice the administration of justice. In re Arrieta, 1986-NMSC-045, 104 N.M. 389, 722 P.2d 640. Attorney was suspended from practice for one year for engaging in conduct that adversely reflected upon his fitness to practice law, for neglecting a legal matter entrusted to him, for engaging in conduct involving dishonesty or misrepresentation, and for failure to give his full cooperation and assistance to counsel for the disciplinary board. In re Laughlin, 1986-NMSC-068, 104 N.M. 630, 725 P.2d 830. Indefinite suspension warranted. - An attorney who collected a fee to represent a client in a criminal matter and who failed to return the fee even though the charge was dismissed without any action by the lawyer, who subsequently contended (knowingly and dishonestly) that he was entitled to the fee in disciplinary proceedings, and who forged a physician's signature on a fitness to practice law form on an application to the Arizona bar, was suspended indefinitely. In re Cherryhomes, 1993-NMSC-044, 115 N.M. 734, 858 P.2d 401 (1993). Indefinite suspension was warranted because an attorney violated Paragraph B, by failing to respond to lawful requests for information from the office of disciplinary counsel. The attorney also violated Rule 16-101 NMRA, by failing to provide competent representation; Rule 16-102(A) NMRA, by failing to abide by a client's decisions concerning the objectives of the representation; Rule 16-103 NMRA, by failing to act with reasonable diligence and promptness in representing a client; Rule 16-104(A) NMRA, by failing to keep a client reasonably informed about the status of a matter and by failing to promptly comply with reasonable requests for information; Rule 16-116(D) NMRA, by failing to timely surrender papers and property to which a client was entitled and by failing to timely refund any advance payment of fee that had not been earned; Rule 16-804(D) and (H) NMRA, by engaging in conduct that is prejudicial to the administration of justice and conduct that adversely reflects on his fitness to practice law; and Rule 16-803(D) NMRA, by failing to cooperate with disciplinary counsel in the course of the investigation. In re Carlton, 2000-NMSC-001, 128 N.M. 419, 993 P.2d 736. Disbarment warranted. - Disbarment was justified because of the inadequacy of an attorney's representation of clients in violation of Rules 16-101, 16-102(A), 16-103 and 16-104(A) NMRA, by his adverse business transaction with a client and misappropriation of trust account funds in violation of Rules 16-108, 16-115 and 16-116(D) NMRA, and violation of this rule and other rules relating to disciplinary proceedings. In re Darnell, 1997-NMSC-025, 123 N.M. 323, 940 P.2d 171. Rule violated. In re Chavez, 2000-NMSC-015, 129 N.M. 035, 1 P.3d 417. Law reviews. - For comment, "The Clark Report and The Revised New Mexico Disciplinary Procedures," see 2 N.M.L. Rev. 292 (1972). Am. Jur. 2d, A.L.R. and C.J.S. references. - 7 Am. Jur. 2d Attorneys at Law §§ 67 to 73. Fee collection practices as ground for disciplinary action, 91 A.L.R.3d 583. Attorney's failure to report promptly receipt of money or property belonging to client as ground for disciplinary action, 91 A.L.R.3d 975. Conduct of attorney in connection with settlement of client's case as ground for disciplinary action, 92 A.L.R.3d 288. Conduct of attorney in capacity of executor or administrator of decedent's estate as ground for disciplinary action, 92 A.L.R.3d 655. Disciplinary action against attorney based on misconduct prior to admission to bar, 92 A.L.R.3d 807. Attorney's commingling of client's funds with his own as ground for modern action -modern status, 94 A.L.R.3d 846. Restitution as mitigating circumstance in disciplinary action against attorney based on wrongful conduct, 95 A.L.R.3d 724. Failure to pay creditors as affecting applicant's moral character for purposes of admission to the bar, 4 A.L.R.4th 436. Failure to cooperate with or obey disciplinary authorities as ground for disciplining attorney - modern cases, 37 A.L.R.4th 646. 7 C.J.S. Attorney and Client §§ 43 to 45.