N.M. R. Prof'l. Cond. 16-502
N.M. R. Prof'l. Cond. 16-502
Committee commentary. -
[1] Although a lawyer is not relieved of responsibility for a violation by the fact that the lawyer acted at the direction of a supervisor, that fact may be relevant in determining whether a lawyer had the knowledge required to render conduct a violation of the rules. For example, if a subordinate filed a frivolous pleading at the direction of a supervisor, the subordinate would not be guilty of a professional violation unless the subordinate knew of the document's frivolous character.
[2] When lawyers in a supervisor-subordinate relationship encounter a matter involving professional judgment as to ethical duty, the supervisor may assume responsibility for making the judgment. Otherwise a consistent course of action or position could not be taken. If the question can reasonably be answered only one way, the duty of both lawyers is clear and they are equally responsible for fulfilling it. However, if the question is reasonably arguable, someone has to decide upon the course of action. That authority ordinarily reposes in the supervisor, and a subordinate may be guided accordingly. For example, if a question arises whether the interests of two clients conflict under Rule 16-107 NMRA of the Rules of Professional Conduct, the supervisor's reasonable resolution of the question should protect the subordinate professionally if the resolution is subsequently challenged.
[Adopted by Supreme Court Order No. 08-8300-029, effective November 3, 2008.]
.ANNOTATIONS Compiler's notes. - The old ABA Comment was replaced by the 2008 committee commentary. Excuse. - This rule did not excuse an assistant United States attorney's violation of Rule 16-402 NMRA by communicating with a represented criminal defendant. In re Howes, 1997-NMSC-024, 123 N.M. 311, 940 P.2d 159.