N.M. R. Prof'l. Cond. 16-304

As amended through September 28, 2021
Rule 16-304 - Fairness to opposing party and counsel

A lawyer shall not

A. unlawfully obstruct another party's access to evidence or unlawfully alter, destroy, or conceal a document or other material having potential evidentiary value nor shall a lawyer counsel or assist another person to do any such act;
B. falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law;
C. knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists;
D. in pretrial procedure, make a frivolous discovery request or fail to make a reasonably diligent effort to comply with a legally proper discovery request by an opposing party;
E. in trial, allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence, assert personal knowledge of facts in issue except when testifying as a witness, or state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant, or the guilt or innocence of an accused;
F. request a person other than a client to refrain from voluntarily giving relevant information to another party unless
(1) the person is a relative or an employee or other agent of a client; and
(2) the lawyer reasonably believes that the person's interests will not be adversely affected by refraining from giving such information; or
G. withhold information of juror misconduct.

N.M. R. Prof'l. Cond. 16-304

As amended by Supreme Court Order No. 08-8300-029, effective November 3, 2008; as amended by Supreme Court Order No. 17-8300-018, effective December 31, 2017.

Committee commentary. -

[1] The procedure of the adversary system contemplates that the evidence in a case is to be marshalled competitively by the contending parties. Fair competition in the adversary system is secured by prohibitions against destruction or concealment of evidence, improperly influencing witnesses, obstructive tactics in discovery procedure, and the like.

[2] Documents and other items of evidence are often essential to establish a claim or defense. Subject to evidentiary privileges, the right of an opposing party, including the government, to obtain evidence through discovery or subpoena is an important procedural right. The exercise of that right can be frustrated if relevant material is altered, concealed, or destroyed. Applicable law in many jurisdictions makes it an offense to destroy material for the purpose of impairing its availability in a pending proceeding or one whose commencement can be foreseen. Falsifying evidence is also generally a criminal offense. Paragraph A applies to evidentiary material generally, including electronically stored information and social media content. Applicable law may permit a lawyer to take temporary possession of physical evidence of client crimes for the purpose of conducting a limited examination that will not alter or destroy material characteristics of the evidence. In such a case, applicable law may require the lawyer to turn the evidence over to the police or other prosecuting authority, depending on the circumstances.

[3] With regard to Paragraph B, it is not improper to pay a witness's expenses or to compensate an expert witness on terms permitted by law. The common law rule in most jurisdictions is that it is improper to pay an occurrence witness any fee for testifying and that it is improper to pay an expert witness a contingent fee.

[4] Paragraph F permits a lawyer to advise employees of a client to refrain from giving information to another party, for the employees may identify their interests with those of the client. See Rule 16-402 NMRA.

[5] Paragraph G requires a lawyer to use best judgment and good faith to determine whether a juror has acted improperly. The misconduct must be promptly brought to the court's attention. The lawyer cannot consider whether the juror's improper conduct benefits the lawyer or the client.

[Adopted by Supreme Court Order No. 08-8300-029, effective November 3, 2008; as amended by Supreme Court Order No. 17-8300-018, effective December 31, 2017.]


ANNOTATIONS The 2017 amendment, approved by Supreme Court Order No. 17-8300-018, effective December 31, 2017, provided that a lawyer shall not withhold information of juror misconduct from an opposing party and counsel; in Paragraph A, after "evidentiary value", deleted the period and "A" and added "nor shall a", and after "lawyer", deleted "shall not"; added Paragraph G; and revised the committee commentary to include electronically stored information and social media content within the scope of evidentiary material as provided for in Paragraph A and to include guidance regarding Paragraph G. The 2008 amendment, approved by Supreme Court Order No. 08-8300-029, effective November 3, 2008, in Paragraph E, changed "or state a personal opinion, not supported by the evidence as to the justness of a cause" to "or state a personal opinion as to the justness of a cause". Lawyers are officers of court and are always under obligation to be truthful to the court. Woodson v. Phillips Petroleum Co., 1985-NMSC-018, 102 N.M. 333, 695 P.2d 483. Public defenders are not excused from compliance with the Code of Professional Responsibility (now the Rules of Professional Conduct) even though paid with public funds. State v. Martinez, 1982-NMCA-020, 97 N.M. 540, 641 P.2d 1087. Prosecutorial misconduct in closing argument. - Where defendant, who was initially stopped for not wearing a seatbelt during a routine seatbelt enforcement operation, was charged with DWI; during defense counsel's closing argument, defense counsel noted that the state had presented no evidence regarding the underlying seatbelt violation; and in rebuttal, the prosecutor told the jury that defense counsel lied when commenting on the absence of a seatbelt citation, while simultaneously waiving a copy of the seatbelt violation citation which had not been introduced into evidence in front of the jury, the prosecutor's actions created an unnecessary risk to defendant's right to a fair trial and the impartial administration of justice. State v. Torres, 2012-NMSC-016, 279 P.3d 740. Censure and fine for false and misleading brief. - Attorney was publicly censured and fined $1,000 for knowingly making false, misleading and inaccurate statements in a brief to the court of appeals in violation of this rule (former Rule 7-102 ). In re Chakeres, 1984-NMSC-088, 101 N.M. 684, 687 P.2d 741. Indefinite suspension warranted. - Indefinite suspension was warranted because of attorney's violation of Paragraph D of this rule and other rules, such as Rule 16-101 NMRA, by failing to provide competent representation; 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 fact to a tribunal; 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. Disbarment for manufacturing evidence. - When an attorney, who is an officer of the court and whose duty is it to protect the integrity of the adversarial system, intentionally lies under oath and manufactures documents designed to achieve an advantage in litigation, he demonstrates a complete lack of fitness to practice law. In re Gabell, 1993-NMSC-045, 115 N.M. 737, 858 P.2d 404. Disbarment for misconduct including intimidation of witnesses. - An attorney was properly disbarred for having engaged in four acts of misconduct, including subornation of false statements, intimidation of witnesses, dishonesty and intentional misrepresentations to the disciplinary board in the form of false statements made to the board in the regular course of its proceedings. In re Ayala, 1984-NMSC-110, 102 N.M. 214, 693 P.2d 580. Attorney's injection of himself into questions by use of "I" or "we" in his direct and cross-examination of witnesses did not rise to the level of misconduct justifying reversal. McDowell v. Napolitano, 1995-NMSC-029, 119 N.M. 696, 895 P.2d 218. Vouching for credibility of witness in closing argument. - The latitude of the prosecutor in closing argument does not encompass the practice of vouching for the credibility of a witness, either by invoking the authority and prestige of the prosecutor's office or by suggesting the prosecutor's special knowledge. State v. Pennington, 1993-NMCA-037, 115 N.M. 372, 851 P.2d 494. Fairness to opposing counsel. - 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 and failed to produce a report filed with the Board of Pharmacy, the attorney violated the duty of fairness to opposing counsel. In re Estrada, 2006-NMSC-047, 140 N.M. 492, 143 P.3d 731. Am. Jur. 2d, A.L.R. and C.J.S. references. - 7 Am. Jur. 2d Attorneys at Law §§ 67 to 73. Duty of attorney to call witness or to procure aid in procuring his attendance, 56 A.L.R. 174. Interference by prosecution with defense counsel's pretrial interrogation of witnesses, 90 A.L.R.3d 1231. Disciplinary action against attorney based on communications to judge respecting merits of cause, 22 A.L.R.4th 917. Counsel's argument or comment stating or implying that defendant is not insured and will have to pay verdict himself as prejudicial error, 68 A.L.R.4th 954. Prejudicial effect of bringing to jury's attention fact that plaintiff in personal injury or death action is entitled to workers' compensation benefits, 69 A.L.R.4th 131. 7 C.J.S. Attorney and Client §§ 77 to 87.