N.M. R. Prof'l. Cond. 16-103

As amended through January 19, 2021
Rule 16-103 - Diligence

A lawyer shall act with reasonable diligence and promptness in representing a client.

N.M. R. Prof'l. Cond. 16-103

Committee commentary. -

[1] A lawyer should pursue a matter on behalf of a client despite opposition, obstruction or personal inconvenience to the lawyer, and take whatever lawful and ethical measures are required to vindicate a client's cause or endeavor. A lawyer must also act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client's behalf. A lawyer is not bound, however, to press for every advantage that might be realized for a client. For example, a lawyer may have authority to exercise professional discretion in determining the means by which a matter should be pursued. See Rule 16-102 NMRA of the Rules of Professional Conduct. The lawyer's duty to act with reasonable diligence does not require the use of offensive tactics or preclude the treating of all persons involved in the legal process with courtesy and respect.

[2] A lawyer's workload must be controlled so that each matter can be handled competently.

[3] Perhaps no professional shortcoming is more widely resented than procrastination. A client's interests often can be adversely affected by the passage of time or the change of conditions; in extreme instances, as when a lawyer overlooks a statute of limitations, the client's legal position may be destroyed. Even when the client's interests are not affected in substance, however, unreasonable delay can cause a client needless anxiety and undermine confidence in the lawyer's trustworthiness. A lawyer's duty to act with reasonable promptness, however, does not preclude the lawyer from agreeing to a reasonable request for a postponement that will not prejudice the lawyer's client.

[4] Unless the relationship is terminated as provided in Rule 16-116 NMRA of the Rules of Professional Conduct, a lawyer should carry through to conclusion all matters undertaken for a client. If a lawyer's employment is limited to a specific matter, the relationship terminates when the matter has been resolved. If a lawyer has served a client over a substantial period in a variety of matters, the client sometimes may assume that the lawyer will continue to serve on a continuing basis unless the lawyer gives notice of withdrawal. Doubt about whether a client-lawyer relationship still exists should be clarified by the lawyer, preferably in writing, so that the client will not mistakenly suppose the lawyer is looking after the client's affairs when the lawyer has ceased to do so. For example, if a lawyer has handled a judicial or administrative proceeding that produced a result adverse to the client and the lawyer and the client have not agreed that the lawyer will handle the matter on appeal, the lawyer must consult with the client about the possibility of appeal before relinquishing responsibility for the matter. See Subparagraph (2) of Paragraph A of Rule 16-104 NMRA of the Rules of Professional Conduct. Whether the lawyer is obligated to prosecute the appeal for the client depends on the scope of the representation the lawyer has agreed to provide to the client. See Rule 16-102 NMRA of the Rules of Professional Conduct.

[Adopted by Supreme Court Order No. 08-8300-29, effective November 3, 2008.]

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ANNOTATIONS Compiler's notes. - The old ABA Comment was replaced by the 2008 committee commentary. Attorney's duty to initiate action on case. - When one contracts with an attorney for legal services, he or she is entitled to expect that the attorney will take action of some sort, and if more information is needed from the client in order to proceed, it is the attorney's responsibility to notify the client; it is not the client's responsibility to initiate all inquiries to the attorney to insure that essential steps are being taken. Failure of an attorney to do so constitutes a violation of this and other rules. In re Carrasco, 1987-NMSC-089, 106 N.M. 294, 742 P.2d 506. Failure to complete cases. - 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. An attorney who failed to pursue representation of clients and who abandoned his office and all forms of communication with his clients was subject to a one year suspension. In re Fandey, 1994-NMSC-118, 118 N.M. 590, 884 P.2d 481. 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. Six-month suspension and other penalties were warranted since attorney accepted one-half of the fee and failed to represent the client, allowing default to be entered against the client. In re Trujillo, 1990-NMSC-062, 110 N.M. 180, 793 P.2d 862. An attorney's inaction and incompetence in representing a client in a 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. Failure to respond to pleadings. - Where Owen represented the complainants, who were the lessees in a daycare lease dispute; Owen failed to communicate with the complainants, 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, Owen failed to diligently represent the complainants. In re Owen and Jackson, 2013-NMSC-035. Attorney's failure to file an answer to a URESA action filed against his client violated Rules 6-101(A)(3) and 7-101(A)(1)-(3) NMRA of the Code of Professional Responsibility (now see Rules 16-103 and 16-302 NMRA of the Rules of Professional Conduct). In re Gallegos, 1986-NMSC-058, 104 N.M. 496, 723 P.2d 967. 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. Indefinite suspension warranted. - Indefinite suspension was warranted because of an attorney's violation of this rule and other rules, such as Rule 16-101 NMRA, by failing to provide competent representation; 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 an attorney violated this rule by failing to act with reasonable diligence and promptness in representing a client. 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 16-104(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; 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. Disbarment warranted. - Disbarment was justified because of the inadequacy of an attorney's representation of clients in violation of this rule and Rules 16-101, 16-102 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. Rule violated. In re Martinez, 1988-NMSC-033, 107 N.M. 171, 754 P.2d 842; In re Cutter, 1994-NMSC-086, 118 N.M. 152, 879 P.2d 784; In re Canevaro, 1997-NMSC-033, 123 N.M. 576, 943 P.2d 1029; In re Chavez, 2000-NMSC-015, 129 N.M. 035, 1 P.3d 417; In re Dawson, 2000-NMSC-024, 129 N.M. 369, 8 P.3d 856. Am. Jur. 2d, A.L.R. and C.J.S. references. - 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. Legal malpractice in defense of criminal prosecution, 4 A.L.R.5th 273.