N.M. R. Prof'l. Cond. 16-101

As amended through January 19, 2021
Rule 16-101 - Competence

A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.

N.M. R. Prof'l. Cond. 16-101

Committee commentary. -

Legal Knowledge and Skill

[1] In determining whether a lawyer employs the requisite knowledge and skill in a particular matter, relevant factors include the relative complexity and specialized nature of the matter, the lawyer's general experience, the lawyer's training and experience in the field in question, the preparation and study the lawyer is able to give the matter, and whether it is feasible to refer the matter to, or associate or consult with, a lawyer of established competence in the field in question. In many instances, the required proficiency is that of a general practitioner. Expertise in a particular field of law may be required in some circumstances.

[2] A lawyer need not necessarily have special training or prior experience to handle legal problems of a type with which the lawyer is unfamiliar. A newly admitted lawyer can be as competent as a practitioner with long experience. Some important legal skills, such as the analysis of precedent, the evaluation of evidence, and legal drafting, are required in all legal problems. Perhaps the most fundamental legal skill consists of determining what kind of legal problems a situation may involve, a skill that necessarily transcends any particular specialized knowledge. A lawyer can provide adequate representation in a wholly novel field through necessary study. Competent representation can also be provided through the association of a lawyer of established competence in the field in question.

[3] In an emergency a lawyer may give advice or assistance in a matter in which the lawyer does not have the skill ordinarily required where referral to or consultation or association with another lawyer would be impractical. Even in an emergency, however, assistance should be limited to that reasonably necessary in the circumstances, for ill-considered action under emergency conditions can jeopardize the client's interest.

[4] A lawyer may accept representation where the requisite level of competence can be achieved by reasonable preparation. This applies as well to a lawyer who is appointed as counsel for an unrepresented person. See Rule 16-602 NMRA.

[5] When the circumstances of the representation require it, a lawyer should counsel the client about the client's use and maintenance of social media including the impact of privacy settings and the consequences of posting and removing content.

Thoroughness and Preparation

[6] Competent handling of a particular matter includes inquiry into and analysis of the factual and legal elements of the problem, and use of methods and procedures meeting the standards of competent practitioners. It also includes adequate preparation. The required attention and preparation are determined in part by what is at stake; major litigation and complex transactions ordinarily require more extensive treatment than matters of lesser complexity and consequence. An agreement between the lawyer and the client regarding the scope of the representation may limit the matters for which the lawyer is responsible. See Rule 16-102(C) NMRA.

Retaining or Contracting with Other Lawyers

[7] Before a lawyer retains or contracts with other lawyers outside the lawyer's own firm to provide or assist in the provision of legal services to a client, the lawyer should obtain informed consent from the client and must reasonably believe that the other lawyers' services will contribute to the competent and ethical representation of the client. See Rules 16-102 (allocation of authority), 16-104 (communication with client), 16-105(E) (fee splitting), 16-106 (confidentiality), and 16-505(A) (unauthorized practice of law) NMRA. The reasonableness of the decision to retain or contract with other lawyers outside the lawyer's own firm will depend upon the circumstances, including the education, experience, and reputation of the nonfirm lawyers, the nature of the services assigned to the nonfirm lawyers, and the legal protections, professional conduct rules, and ethical environments of the jurisdictions in which the services will be performed, particularly relating to confidential information.

[8] When lawyers from more than one law firm are providing legal services to the client on a particular matter, the lawyers should consult with each other and the client about the scope of their respective representations and the allocation of responsibility among them. See Rule 16-102 NMRA. When making allocations of responsibility in a matter pending before a tribunal, lawyers and parties may have additional obligations that are a matter of law beyond the scope of these rules.

Maintaining Competence

[9] To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education, and comply with all continuing legal education requirements to which the lawyer is subject. If a system of peer review has been established, the lawyer should consider making use of it in appropriate circumstances.

[Adopted by Supreme Court Order No. 08-8300-029, effective November 3, 2008; as amended by Supreme Court Order No. 13-8300-038, effective December 31, 2013; 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.]

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ANNOTATIONS The 2017 amendment, approved by Supreme Court Order No. 17-8300-018, effective December 31, 2017, revised the committee commentary regarding a lawyer's duty to counsel the client about the client's use and maintenance of social media. The 2015 amendment, approved by Supreme Court Order No. 15-8300-007, effective December 31, 2015, revised the to add the provisions relating to retaining or contracting with lawyers outside the lawyer's own firm to assist in the provision of legal services; in Paragraph 5, after "See", deleted "Paragraph C of Rule 16-102 NMRA" and added "Rule 16-102(C) NMRA"; added Paragraphs 6 and 7; and redesignated former Paragraph 6 as Paragraph 8. Failure to investigate constitutes incompetent representation. - An attorney's failure to investigate the factual basis of his client's case, the legal basis for the claim or the applicable statute of limitations violated this rule and constituted incompetent representation warranting public censure pursuant to Rule 17-206(A)(4) NMRA. In re Reid, 1993-NMSC-055, 116 N.M. 38, 859 P.2d 1065. Defense counsel's failure to tender proper jury instructions amounted to ineffective assistance of counsel. State v. Talley, 1985-NMCA-058, 103 N.M. 33, 702 P.2d 353. Abandonment of client warrants suspension. - If an attorney abandons his client and the client's case, despite his having been paid a substantial fee, he violates this rule (former Rule 6-101 NMRA) and the violation warrants suspension. In re Chowning, 1983-NMSC-085, 100 N.M. 375, 671 P.2d 36. Attorney was publicly censured and placed on probation for one year for his failure to file client's claim prior to running of statute of limitations, for his subsequent frivolous appeal, and for mishandling sale of former client's real property. In re Markley, 1984-NMSC-082, 101 N.M. 565, 686 P.2d 255. Suspension warranted where conflicting interests impair independent judgment. - If a lawyer allows his independent professional judgment on his client's behalf to be impaired by his representation of conflicting interests and, through negligence and acceptance of undue influence and instructions from others, he unintentionally aids an embezzlement scheme in which his client is the victim, such conduct warrants suspension from practice of law for a 30-day period and thereafter until reinstated as provided by the rules of the supreme court. In re Dilts, 1979-NMSC-055, 93 N.M. 131, 597 P.2d 316. Psychiatric condition asserted as defense. - In a disciplinary proceeding in which the attorney's psychiatric condition is asserted as a defense, in weighing the appropriateness of suspension versus disbarment, the court must consider whether it has been shown that the psychiatric condition is amenable to treatment and whether the prognosis for full rehabilitation has been established. In re Stewart, 1986-NMSC-043, 104 N.M. 337, 721 P.2d 405. Attorneys' inaction and incompetence. - Where Owen represented the complainants, who were the lessees in a daycare lease dispute, Owen transferred the matter to Jackson who filed suit on behalf of the complainants against the lessor and mortgage holder; because Jackson failed to properly attend to the lawsuit, the complainants fired Jackson and rehired Owen; Jackson failed to withdraw as counsel of record or notify the court and opposing counsel of the withdrawal; Owen failed to file an entry of appearance or substitution of counsel; Jackson continued to receive notices, correspondence, and pleadings which Jackson delivered to Owen; Owen failed to communicate with the complainants; Owen and Jackson failed to respond to the lessor's and mortgage holder's pleadings and failed to attend hearings; and it was only after the district court granted the lessor's motion for summary judgment and writ of execution that Owen notified the complainants that their daycare business was being evicted, Jackson and Owen abandoned the complainants and failed to competently represent them. In re Owen and Jackson, 2013-NMSC-035. An attorney's inaction and incompetence in representing a client in divorce action violated Rules 6-101 and 7-101 NMRA of the Code of Professional Responsibility (now Rules 16-101 and 16-103 NMRA of the Rules of Professional Conduct). In re Gallegos, 1986-NMSC-058, 104 N.M. 496, 723 P.2d 967. 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's conduct involving two frivolous claims resulting in violation of Rule 16-301 NMRA and several other provisions of the Rules of Professional Conduct warranted a one-year suspension. In re Richards, 1999-NMSC-030, 127 N.M. 716, 986 P.2d 1117. 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. - Sixteen violations of nine rules governing professional responsibility, involving misrepresentation, neglect, improper fee-splitting, disrespect to various tribunals, and other conduct prejudicial to the administration of justice resulted in the defendant's being suspended indefinitely from the practice of law. In re Quintana, 1986-NMSC-057, 104 N.M. 511, 724 P.2d 220. Indefinite suspension was warranted because of an attorney's violation of this rule and other rules, such as Rule 16-103 NMRA, by failing to act with diligence and promptness in representing a client; Rule 16-104 NMRA, by failing to keep his client informed about the status of a matter and failing to respond to requests for information; Rule 16-116(D) NMRA, by failing to surrender papers and property to which the client was entitled at the termination of the representation; Rule 16-302 NMRA, by failing to expedite litigation consistent with the interests of his client; and Rule 16-804(C),(D) and (H) NMRA, by engaging in conduct involving dishonesty, fraud, deceit or misrepresentation, engaging in conduct prejudicial to the administration of justice, and by engaging in conduct that adversely reflects on his fitness to practice law. In re Lally, 1999-NMSC-003, 126 N.M. 566, 973 P.2d 243. Indefinite suspension was warranted because of attorney's violation of this rule and other provisions, such as Rule 16-105 NMRA, by charging an excessive fee; Rule 16-302 NMRA, by failing to expedite litigation; Rule 16-303(A)(1) NMRA, by making an untrue statement of material fact to a tribunal; Rule 16-304(D) NMRA, by failing to comply with a discovery request; Rule 16-505(A) NMRA, by practicing law in a jurisdiction where doing so violates regulations; and Rule 16-804(C),(D) and (H) NMRA, by engaging in conduct involving dishonesty, deceit, and misrepresentation, by engaging in conduct prejudicial to the administration of justice, and by engaging in conduct that adversely reflects upon his fitness to practice law. In re Righter, 1999-NMSC-009, 126 N.M. 730, 975 P.2d 343. Indefinite suspension was warranted because an attorney violated this rule by failing to provide competent representation. The attorney also violated Rule 16-102A 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 16-104A 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 16-116D 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 a 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; Rule 16-801(B) NMRA, by failing to respond to lawful requests for information from the office of disciplinary counsel; 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. 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; In re Tapia, 1990-NMSC-092, 110 N.M 693, 799 P.2d 129. Indefinite suspension warranted where attorney committed misconduct prejudicial to his client. - 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 failed to provide competent representation where the evidence established that the attorney sought a settlement agreement for his client in the federal lawsuit and later voluntarily dismissed the federal claims with prejudice. A competent attorney would have realized that dismissing the claims with prejudice under the circumstances of this case would imperil a subsequent lawsuit on his client's behalf. In re Dixon, 2019-NMSC-006. Sixty-day suspension warranted. - Counsel's failure to appear for a deposition, to file a motion for an amended complaint, to file a motion for a redetermination on behalf of his client, or to respond to disciplinary counsel, warranted a 60-day suspension. In re Allred, 1987-NMSC-073, 106 N.M. 227, 741 P.2d 830. Disbarment warranted. - Disbarment was justified because of the inadequacy of an attorney's representation of clients in violation of this rule and Rules 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 Rule 16-801 NMRA and other rules relating to disciplinary proceedings. In re Darnell, 1997-NMSC-025, 123 N.M. 323, 940 P.2d 171. Code not basis for civil liability. - Former Code of Professional Responsibility was established to discipline attorneys. It was not intended to provide a foundation for civil liability. Garcia v. Rodey, Dickason, Sloan, Akin & Robb, 1988-NMSC-014, 106 N.M. 757, 750 P.2d 118. Failure to comply with the Rules of Appellate Procedure constituted a violation of this rule. In re Dawson, 2000-NMSC-024, 129 N.M. 369, 8 P.3d 856. Counsel's failure to abide by the Rules of Appellate Procedure warranted suspension. - Defense counsel's three-year delay in filing a notice of appeal for a client who was convicted of first-degree murder, seven-month delay in filing a notice of appeal for a client convicted of drug trafficking, and failure to file docketing statements that meet the standards set forth in the appellate rules demonstrated defense counsel's lack of reasonable competence and diligence. In re Salazar, 2019-NMSC-010. Attorney's failure to docket an appeal and lying to his client for seven years about the status of the appeal violated numerous rules and warranted indefinite suspension from practice. In re Roberts, 1995-NMSC-037, 119 N.M. 769, 895 P.2d 669. Bankruptcy practice. - An attorney's failure to address a potential secured claim against his client in a bankruptcy proceeding was a violation of Rules 16-101 and 16-804 NMRA. In re Elmore, 1997-NMSC-020, 123 N.M. 79, 934 P.2d 273. Rule violated. In re Cutter, 1994-NMSC-086, 118 N.M. 152, 879 P.2d 784. Incompetent representation. - In a personal injury action for damages resulting from a pharmacist filling a child's prescription for Ritalin with methadone, where attorney, despite having prior knowledge that records showed a discrepancy between the number of methadone tablets prescribed and those dispensed, denied plaintiff's request for admission that records existed indicating a shortage of methadone tablets, failed to produce a report filed with the Board of Pharmacy, and failed to verify the authenticity of a forged prescription for methadone that was introduced into evidence, the attorney's actions demonstrated incompetence, because they showed a lack of thoroughness in preparing for trial. In re Estrada, 2006-NMSC-047, 140 N.M. 492, 143 P.3d 731. Law reviews. - For note, "Legal Malpractice - Liability for Failure to Warn: First National Bank of Clovis v. Diane, Inc.", see 16 N.M.L. Rev. 395 (1986). For article, "Attorney as Interpreter: A Return to Babble," 20 N.M.L. Rev. 1 (1990). For note, "Professional Responsibility - Attorneys Are Not Liable to Their Clients' Adversaries: Garcia v. Rodey, Dickason, Sloan, Akin & Robb, P.A.," see 20 N.M.L. Rev. 737 (1990). Am. Jur. 2d, A.L.R. and C.J.S. references. - 7 Am. Jur. 2d Attorneys at Law §§ 67 to 73. Legal malpractice by permitting statutory time limitation to run against client's claim, 90 A.L.R.3d 293. What statute of limitations governs damage action against attorney for malpractice, 2 A.L.R.4th 284. Adequacy of defense counsel's representation of criminal client regarding argument, 6 A.L.R.4th 16. Adequacy of defense counsel's representation of criminal client regarding speedy trial and related matters, 6 A.L.R.4th 1208. Adequacy of defense counsel's representation of criminal client regarding hypnosis and truth tests, 9 A.L.R.4th 354. Adequacy of defense counsel's representation of criminal client regarding guilty pleas, 10 A.L.R.4th 8. Adequacy of defense counsel's representation of criminal client regarding post-plea remedies, 13 A.L.R.4th 533. Adequacy of defense counsel's representation of criminal client regarding appellate and postconviction remedies, 15 A.L.R.4th 582. Adequacy of defense counsel's representation of criminal client regarding incompetency, insanity and related issues, 17 A.L.R.4th 575. Incompetence of counsel as ground for relief from state court civil judgment, 64 A.L.R.4th 323. Negligence, inattention, or professional incompetence of attorney in handling client's affairs in matters involving real estate transactions as ground for disciplinary action -modern cases, 65 A.L.R.4th 24. Negligence, inattention, or professional incompetence of attorney in handling client's affairs in tax matters as ground for disciplinary action - modern cases, 66 A.L.R.4th 314. Negligence, inattention, or professional incompetence of attorney in handling client's affairs in estate or probate matters as ground for disciplinary action - modern cases, 66 A.L.R.4th 342. Negligence, inattention, or professional incompetence of attorney in handling client's affairs in family law matters as ground for disciplinary action - modern cases, 67 A.L.R.4th 415. Negligence, inattention, or professional incompetence of attorney in handling client's affairs in personal injury or property damage actions as ground for disciplinary action -modern cases, 68 A.L.R.4th 694. Negligence, inattention, or professional incompetence of attorney in handling client's affairs in criminal matters as ground for disciplinary action - modern cases, 69 A.L.R.4th 410. Negligence, inattention, or professional incompetence of attorney in handling client's affairs in bankruptcy matters as ground for disciplinary action - modern cases, 70 A.L.R.4th 786. Legal malpractice in handling or defending medical malpractice claim, 78 A.L.R.4th 725. Misconduct involving intoxication as ground for disciplinary action against attorney, 1 A.L.R.5th 874. Legal malpractice in defense of criminal prosecution, 4 A.L.R.5th 273. Ineffective assistance of counsel: compulsion, duress, necessity, or "hostage syndrome" defense, 8 A.L.R.5th 713. Legal malpractice: negligence or fault of client as defense, 10 A.L.R.5th 828. Ineffective assistance of counsel: Right of attorney to withdraw, as appointed defense counsel, due to self-avowed incompetence, 16 A.L.R.5th 118. Admissibility and effect of evidence of professional ethics rules in legal malpractice action, 50 A.L.R.5th 301. 7 C.J.S. Attorney and Client §§ 77 to 87; 7A C.J.S. Attorney and Client §§ 254 to 262.