N.M. R. Prof'l. Cond. 16-404
N.M. R. Prof'l. Cond. 16-404
Committee commentary. -
[1] Responsibility to a client requires a lawyer to subordinate the interests of others to those of the client, but that responsibility does not imply that a lawyer may disregard the rights of third persons. It is impractical to catalog all such rights, but they include legal restrictions on methods of obtaining evidence from third persons and unwarranted intrusions into privileged relationships, such as the client-lawyer relationship.
[2] Paragraph B recognizes that lawyers sometimes receive a document or electronically stored information that was mistakenly sent or produced by opposing parties or their lawyers. A document or electronically stored information is inadvertently sent when it is accidentally transmitted, such as when an email or letter is misaddressed or a document or electronically stored information is accidentally included with information that was intentionally transmitted. If a lawyer knows or reasonably should know that such a document or electronically stored information was sent inadvertently, then this rule requires the lawyer to promptly notify the sender in order to permit that person to take protective measures. Whether the lawyer is required to take additional steps, such as returning the document or electronically stored information, is a matter of law beyond the scope of these rules, as is the question of whether the privileged status of a document or electronically stored information has been waived. Similarly, this rule does not address the legal duties of a lawyer who receives a document or electronically stored information that the lawyer knows or reasonably should know may have been inappropriately obtained by the sending person. For purposes of this rule, "document or electronically stored information" includes, in addition to paper documents, e-mail and other forms of electronically stored information, including embedded data (commonly referred to as "metadata"), that is subject to being read or put into readable form. Metadata in electronic documents creates an obligation under this rule only if the receive lawyer knows or reasonably should know that the metadata was inadvertently sent to the receiving lawyer.
[3] Some lawyers may choose to return a document or delete electronically stored information unread, for example, when the lawyer learns before receiving it that it was inadvertently sent. Where a lawyer is not required by applicable law to do so, the decision to voluntarily return such a document or delete electronically stored information is a matter of professional judgment ordinarily reserved to the lawyer. See Rules 16-102 and 16-104 NMRA of the Rules of Professional Conduct.
[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.]
.ANNOTATIONS The 2013 amendment, approved by Supreme Court Order No. 13-8300-038, effective December 31, 2013, expanded the scope of the rule to include inadvertently sent electronically stored information; and in Paragraph B, after "receives a document", added "or electronically stored information" and after "know that the document", added "or electronically stored information". The 2008 amendment, approved by Supreme Court Order No. 08-8300-029, effective November 3, 2008, added the paragraph letter and title to Paragraph A and added Paragraph B. Offensive remarks about judicial officials and bar members. - Where, in three separate incidents while respondent was representing clients in domestic matters, respondent made offensive remarks referring to a fellow bar member as a "dumb bitch", a domestic violence commissioner as a "freak show", opposing counsel as "eternal lying scum", a retired judge as a "drunken idiot on the bench" and as having been "bought off", and the opposing party as a "dingbat" and implied that the judge and opposing counsel had an impermissible relationship; respondent's conduct increased acrimony and fueled the adversarial climate that adversely impacted the progress of the litigation, caused unnecessary additional expense, and was intended to intimidate and improperly influence those who stood in respondent's way; and respondent had substantial experience in the practice of law, had committed multiple prior offenses that displayed a pattern of misconduct, refused to acknowledge the wrongful nature of respondent's conduct, and had received prior disciplinary sanctions, suspension was an appropriate sanction which the court deferred because respondent provided medical evidence demonstrating that respondent's prior outbursts were likely caused by a long-standing but untreated bipolar condition and that the treatment respondent was receiving would prevent the misconduct from recurring. In re Ortiz, 2013-NMSC-027. The issuance of unauthorized subpoenas violates the legal rights of ordinary citizens. - Where deputy district attorney issued at least ninety-four subpoenas concerning numerous separate investigations, most of which were directed to various cellular phone providers seeking subscriber information and call activity in order to narrow potential suspects, but several sought medical records, CYFD records, and utility records, and some of which were approved by the district attorney of the Eighth Judicial District, but none of which were issued by a sitting grand jury nor reviewed by any judicial officer and were not connected to any cases before the court, the deputy district attorney and the district attorney violated Rules 5-511(A)(1)(b) and 5-511(A)(2) NMRA, which require that subpoenas be issued only in connection with existing judicial actions, and thus violated Rule 16-404(A), which prohibits the use of methods that have no substantial purpose other than to burden third parties and the use of methods to obtain evidence that violate the legal rights of a person. In re Chavez, cons. with In re Gallegos, 2017-NMSC-012. Am. Jur. 2d, A.L.R. and C.J.S. references. - Attorney's liability under state law for opposing party's counsel fees, 56 A.L.R.4th 486. What constitutes negligence sufficient to render attorney liable to person other than immediate client, 61 A.L.R.4th 464. Attorney's liability, to one other than immediate client, for negligence in connection with legal duties, 61 A.L.R.4th 615. Attorney's liability for nondisclosure or misrepresentation to third-party nonclients in private civil actions under federal securities laws, 112 A.L.R. Fed. 141.