N.M. R. Prof'l. Cond. 16-501
This obligation also applies to observations made by a lawyer with direct supervisory authority over a subordinate lawyer. A report made under this paragraph shall be treated as confidential and handled in accordance with the confidentiality rules, policies, and procedures of the agency, entity, or program to whom the report has been made.
N.M. R. Prof'l. Cond. 16-501
Committee commentary. -
[1] Paragraph A applies to lawyers who have managerial authority over the professional work of a firm. See Rule 16-100(C) NMRA. This includes members of a partnership, the shareholders in a law firm organized as a professional corporation, members of other associations authorized to practice law and lawyers having comparable managerial authority in a legal services organization or a law department of an enterprise or government agency, and lawyers who have intermediate managerial responsibilities in a firm. Paragraph B applies to lawyers who have supervisory authority over the work of other lawyers in a firm.
[2] Paragraph A requires lawyers with managerial authority within a firm to make reasonable efforts to establish internal policies and procedures designed to provide reasonable assurance that all lawyers in the firm will conform to the Rules of Professional Conduct. Such policies and procedures include those designed to detect and resolve conflicts of interest, identify dates by which actions must be taken in pending matters, account for client funds and property and ensure that inexperienced lawyers are properly supervised.
[3] Other measures that may be required to fulfill the responsibility prescribed in Paragraph A can depend on the firm's structure and the nature of its practice. In a small firm of experienced lawyers, informal supervision and periodic review of compliance with the required systems ordinarily will suffice. In a large firm, or in practice situations in which difficult ethical problems frequently arise, more elaborate measures may be necessary. Some firms, for example, have a procedure whereby junior lawyers can make confidential referral of ethical problems directly to a designated senior partner or special committee. See Rule 16-502 NMRA. Firms, whether large or small, may also rely on continuing legal education in professional ethics. In any event, the ethical atmosphere of a firm can influence the conduct of all its members and the partners may not assume that all lawyers associated with the firm will inevitably conform to the rules.
[4] Paragraph C expresses a general principle of personal responsibility for acts of another. See also Rule 16-804(A) NMRA.
[5] Paragraph (C)(2) defines the duty of a partner or other lawyer having comparable managerial authority in a law firm, as well as a lawyer who has direct supervisory authority over performance of specific legal work by another lawyer. Whether a lawyer has supervisory authority in particular circumstances is a question of fact. Partners and lawyers with comparable authority have at least indirect responsibility for all work being done by the firm, while a partner or manager in charge of a particular matter ordinarily also has supervisory responsibility for the work of other firm lawyers engaged in the matter. Appropriate remedial action by a partner or managing lawyer would depend on the immediacy of that lawyer's involvement and the seriousness of the misconduct. A supervisor is required to intervene to prevent avoidable consequences of misconduct if the supervisor knows that the misconduct occurred. Thus, if a supervising lawyer knows that a subordinate misrepresented a matter to an opposing party in negotiation, the supervisor as well as the subordinate has a duty to correct the resulting misapprehension.
[6] Professional misconduct by a lawyer under supervision could reveal a violation of Paragraph B on the part of the supervisory lawyer even though it does not entail a violation of Paragraph C because there was no direction, ratification or knowledge of the violation.
[7] Apart from this rule and Rule 16-804(A) NMRA, a lawyer does not have disciplinary liability for the conduct of a partner, associate or subordinate. Whether a lawyer may be liable civilly or criminally for another lawyer's conduct is a question of law beyond the scope of these rules.
[8] Paragraph D recognizes a law firm's obligation to address concerns that a lawyer in the firm may be exhibiting signs of severe cognitive impairment. According to the Center for Disease Control and Prevention, cognitive impairment is when a person has trouble remembering, learning new things, concentrating, or making decisions that affect the person's everyday life. Cognitive impairment ranges from mild to severe. With mild impairment, a person may begin to notice changes in cognitive functions, but may still be able to do the person's everyday activities. Severe levels of impairment can lead to losing the ability to understand the meaning or importance of something and the ability to talk or write.
If a partner in a law firm or any lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm observes another lawyer in the firm exhibiting signs of a severe cognitive impairment, such as a marked change in (1) the lawyer's short or long term memory; (2) the ability to properly orient as to time, people, or place; or (3) the ability to engage in deductive or abstract reasoning, steps shall be taken that may include assisting the lawyer who appears to be impaired to seek medical care, reporting the concerns to the New Mexico Judges and Lawyers Assistance Program or to the Office of Disciplinary Counsel, or taking other steps designed to prevent the lawyer whose cognitive abilities appear to be severely impaired from taking substantive actions on behalf of clients. Lawyers who directly supervise other lawyers and observe signs of severe cognitive impairment in the subordinate lawyer have this same obligation.
[9] The duties imposed by this rule on managing and supervising lawyers do not alter the personal duty of each lawyer in a firm to abide by the Rules of Professional Conduct. See Rule 16-502(A) NMRA.
[10] All lawyers are encouraged to contact the Judges and Lawyers Assistance Program if they have a concern about another lawyer's cognitive function even if that concern arises from signs that would not constitute a severe impairment.
[Adopted by Supreme Court Order No. 08-8300-029, effective November 3, 2008; as amended by Supreme Court Order No. 18-8300-017, effective December 31, 2018.]
.ANNOTATIONS The 2018 amendment, approved by Supreme Court Order No. 18-8300-017, effective December 31, 2018, provided reporting requirements for managing lawyers, and lawyers acting with supervisory authority, to report concerns that a lawyer in the firm may be exhibiting signs of severe cognitive impairment, provided confidentiality protections, and revised the committee commentary; added Paragraph D. The 2008 amendment, approved by Supreme Court Order No. 08-8300-029, effective November 3, 2008, added "managers and" to the title; added a new Paragraph A; relettered former Paragraph A as Paragraph B; relettered former Paragraph B as Paragraph C; and in Subparagraph (2) of Paragraph C, added "or has comparable managerial authority". Compiler's notes. - The old ABA Comment was replaced by the 2008 committee commentary. Ratifying the issuance of unauthorized subpoenas violates the Rules of Professional Conduct. - 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 district attorney, by ratifying the issuance of the subpoenas, violated Rule 16-501(C) NMRA, because he should have known that the issuance of subpoenas unconnected to a pending case 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. In re Chavez, cons. with In re Gallegos, 2017-NMSC-012.