N.M. R. Prof'l. Cond. 16-109
Committee commentary. -
 After termination of a client-lawyer relationship, a lawyer has certain continuing duties with respect to confidentiality and conflicts of interest and thus may not represent another client except in conformity with this rule. Under this rule, for example, a lawyer could not properly seek to rescind on behalf of a new client a contract drafted on behalf of the former client. So also a lawyer who has prosecuted an accused person could not properly represent the accused in a subsequent civil action against the government concerning the same transaction. Nor could a lawyer who has represented multiple clients in a matter represent one of the clients against the others in the same or a substantially related matter after a dispute arose among the clients in that matter, unless all affected clients give informed consent. Current and former government lawyers must comply with this rule to the extent required by RuleNMRA of the Rules of Professional Conduct.
 The scope of a "matter" for purposes of this rule depends on the facts of a particular situation or transaction. The lawyer's involvement in a matter can also be a question of degree. When a lawyer has been directly involved in a specific transaction, subsequent representation of other clients with materially adverse interests in that transaction clearly is prohibited. On the other hand, a lawyer who recurrently handled a type of problem for a former client is not precluded from later representing another client in a factually distinct problem of that type even though the subsequent representation involves a position adverse to the prior client. Similar considerations can apply to the reassignment of military lawyers between defense and prosecution functions within the same military jurisdictions. The underlying question is whether the lawyer was so involved in the matter that the subsequent representation can be justly regarded as a changing of sides in the matter in question.
 Matters are "substantially related" for purposes of this rule if they involve the same transaction or legal dispute or if there otherwise is a substantial risk that confidential factual information as would normally have been obtained in the prior representation would materially advance the client's position in the subsequent matter. For example, a lawyer who has represented a businessperson and learned extensive private financial information about that person may not then represent that person's spouse in seeking a divorce. Similarly, a lawyer who has previously represented a client in securing environmental permits to build a shopping center would be precluded from representing the neighbors seeking to oppose rezoning of the property on the basis of environmental considerations. However, the lawyer would not be precluded, on the grounds of substantial relationship, from defending a tenant of the completed shopping center in resisting eviction for nonpayment of rent. Information that has been disclosed to the public or to other parties adverse to the former client ordinarily will not be disqualifying. Information acquired in a prior representation may have been rendered obsolete by the passage of time, a circumstance that may be relevant in determining whether two representations are substantially related. In the case of an organizational client, general knowledge of the client's policies and practices ordinarily will not preclude a subsequent representation. On the other hand, knowledge of specific facts gained in a prior representation that are relevant to the matter in question ordinarily will preclude such a representation. A former client is not required to reveal the confidential information learned by the lawyer in order to establish a substantial risk that the lawyer has confidential information to use in the subsequent matter. A conclusion about the possession of such information may be based on the nature of the services the lawyer provided the former client and information that would in ordinary practice be learned by a lawyer providing such services.
Lawyers Moving Between Firms
 When lawyers have been associated within a firm then end their association, the question of whether a lawyer should undertake representation is more complicated. There are several competing considerations. First, the client previously represented by the former firm must be reasonably assured that the principle of loyalty to the client is not compromised. Second, the rule should not be so broadly cast as to preclude other persons from having reasonable choice of legal counsel. Third, the rule should not unreasonably hamper lawyers from forming new associations and taking on new clients after having left a previous association. In this connection, it should be recognized that today many lawyers practice in firms, that many lawyers to some degree limit their practice to one field or another and that many move from one association to another several times in their careers. If the concept of imputation were applied with unqualified rigor, the result would be radical curtailment of the opportunity of lawyers to move from one practice setting to another and of the opportunity of clients to change counsel.
 Paragraph B operates to disqualify the lawyer only when the lawyer involved has actual knowledge of information protected by RuleNMRA and Paragraph C of Rule 16-109 NMRA of the Rules of Professional Conduct. Thus, if a lawyer while with one firm acquired no knowledge or information relating to a particular client of the firm and that lawyer later joined another firm, neither the lawyer individually nor the second firm is disqualified from representing another client in the same or a related matter even though the interests of the two clients conflict. See Paragraph B of Rule NMRA of the Rules of Professional Conduct for the restrictions on a firm once a lawyer has terminated association with the firm.
 Application of Paragraph B of this rule depends on a situation's particular facts, aided by inferences, deductions or working presumptions that reasonably may be made about the way in which lawyers work together. A lawyer may have general access to files of all clients of a law firm and may regularly participate in discussions of their affairs. It should be inferred that such a lawyer in fact is privy to all information about all the firm's clients. In contrast, another lawyer may have access to the files of only a limited number of clients and participate in discussions of the affairs of no other clients. In the absence of information to the contrary, it should be inferred that such a lawyer in fact is privy to information about the clients actually served but not those of other clients. In such an inquiry, the burden of proof should rest upon the firm whose disqualification is sought.
 Independent of the question of disqualification of a firm, a lawyer changing professional association has a continuing duty to preserve the confidentiality of information about a client formerly represented. See RuleNMRA and Paragraph C of Rule 16-109 NMRA of the Rules of Professional Conduct.
 Paragraph C of this rule provides that information acquired by the lawyer in the course of representing a client may not subsequently be used or revealed by the lawyer to the disadvantage of the client. However, the fact that a lawyer has once served a client does not preclude the lawyer from using generally known information about that client when later representing another client.
 The provisions of this rule are for the protection of former clients and can be waived if the client gives informed consent, which consent must be confirmed in writing under Paragraphs A and B. See Paragraph E of Terminology of the Rules of Professional Conduct. With regard to the effectiveness of an advance waiver, see Committee Commentary to RuleNMRA of the Rules of Professional Conduct. With regard to disqualification of a firm with which a lawyer is or was formerly associated, see Rule NMRA of the Rules of Professional Conduct.
[Adopted by Supreme Court Order No. 08-8300-029, effective November 3, 2008.].
ANNOTATIONS The 2008 amendment, approved by Supreme Court Order No. 08-8300-029, effective November 3, 2008, changed the title from "Conflict of interest; former client" to the present title; added the title to Paragraph A; in Paragraph A, changed "consents after consultation" to "gives informed consent, confirmed in writing"; deleted former Paragraph B which prohibited a lawyer who has formerly represented a client to use information relating to the representation to the disadvantage of the former client except as permitted by Rule 16-106 NMRA or when the information is generally known; and added new Paragraphs B and C. Compiler's notes. - The old ABA Comment was replaced by the 2008 committee commentary. Establishing attorney-client relationship. - In determining whether there was an attorney-client relationship that would subject a lawyer to the ethical obligation of preserving confidential communications, a party must show that: (1) it submitted confidential information to a lawyer, and (2) it did so with the reasonable belief that the lawyer was acting as the party's attorney. Additionally, although the alleged client's subjective belief can be considered by the court, this belief is not sufficient to establish an attorney-client relationship. Cole v. Ruidoso Mun. Sch., 43 F.3d 1373 (10th Cir. 1994). Determination of conflict of interest must precede substantive proceedings. - Upon being alerted to a potential conflict of interest, a tribunal has a duty to immediately stay the proceedings and determine whether a conflict of interest exists and whether an attorney is disqualified from a case. Living Cross Ambulance Serv., Inc. v. N.M. Pub. Regulation Comm'n, 2014-NMSC-036. Irrebuttable presumption. - Once a tribunal determines that there was a substantial relationship between the former representation of an opposing party and the current proceedings, an irrebuttable presumption arises that the former client revealed facts requiring the attorney's disqualification from the current proceedings, and doubts as to whether a substantial relationship exists should be resolved in favor of disqualification of representation. Living Cross Ambulance Serv., Inc. v. N.M. Pub. Regulation Comm'n, 2014-NMSC-036. Tribunal's duty to determine whether conflict exists. - Where attorney's representation of ambulance company was directly adverse to competing ambulance company that was also a former client of the attorney, the Public Regulation Commission erred in allowing a potentially disqualified attorney to conduct a hearing over the objection of opposing counsel and without first determining whether an actual conflict of interest existed and whether the attorney should have been disqualified from the case. Living Cross Ambulance Serv., Inc. v. N.M. Pub. Regulation Comm'n, 2014-NMSC-036. Prosecution of former criminal client. - Based on the totality of the circumstances, including the proximity of time between the past convictions and the present prosecution, the similarity of the offenses, and the fact that the past convictions had been plea bargained, there was a conflict under this rule in the prosecution of a defendant by a prosecutor who had served as the defendant's defense counsel in the prior cases. State v. Barnett, 1998-NMCA-105, 125 N.M. 739, 965 P.2d 323. Reasonably competent attorney standard. - Defense attorney who made no effort to discover scope of prosecutor's prior representation of defendant, or advise defendant as to his right to disqualify the prosecutor, failed to meet the standard of a reasonably competent attorney; however, defendant's right to relief was dependent upon whether he was prejudiced by his lack of competent counsel, a factual question to be determined on remand. State v. Barnett, 1998-NMCA-105, 125 N.M. 739, 965 P.2d 323. Wrongful use of client information. - Attorney violated this rule when he wrongfully used information relating to his former representation of a client to the client's disadvantage and financial ruin. In re C'De Baca, 1989-NMSC-070, 109 N.M. 151, 782 P.2d 1348. Disqualification of district attorney. - A district attorney, who worked in private practice with an attorney representing a defendant in a capital case and who represented the defendant at least one hearing in the case, is disqualified from participation in the case against the defendant, and given the district attorney's role as supervisor and employer of the deputies, assistants and investigators who might otherwise proceed in the case, the district attorney's entire office is disqualified. 2005 Op. Att'y Gen. No. 05-01.