N.M. R. Prof'l. Cond. 16-701

As amended through November 1, 2020
Rule 16-701 - Communications concerning a lawyer's services

A lawyer shall not make, elicit, or endorse a false or misleading communication about the lawyer or the lawyer's services. A communication is false or misleading if it contains a material misrepresentation of fact or law; omits a fact necessary to make the statement considered as a whole not materially misleading; or contains a testimonial about, or endorsement of, the lawyer that is misleading.

N.M. R. Prof'l. Cond. 16-701

As amended, effective August 1, 1992;December 1, 1992;November 1, 1993;January 1, 1999;January 1, 2000;January 20, 2005; as amended by Supreme Court Order No. 17-8300-018, effective December 31, 2017.

Committee commentary. -

[1] A lawyer or nonlawyer assistant shall not make, endorse, or elicit a false or misleading statement on social media about the lawyer or the lawyer's services. Furthermore, a lawyer has a duty to remove, to the extent reasonably possible, information known to the lawyer that does not comply with the Rules of Professional Conduct.

[As amended by Supreme Court Order No. 15-8300-007, effective December 31, 2015; as amended by Supreme Court Order No. 17-8300-018, effective December 31, 2017.]

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ANNOTATIONS ABA COMMENT: [1] This rule governs all communications about a lawyer's services, including advertising permitted by Rule 16-702 NMRA. Whatever means are used to make known a lawyer's services, statements about them should be truthful. [2] Truthful statements that are misleading are also prohibited by this rule. A truthful statement is misleading if it omits a fact necessary to make the lawyer's communication considered as a whole not materially misleading. A truthful statement is also misleading if there is a substantial likelihood that it will lead a reasonable person to formulate a specific conclusion about the lawyer or that it will lead a reasonable person to formulate a specific conclusion about the lawyer or the lawyer's services for which there is no reasonable factual foundation. [3] An advertisement that truthfully reports a lawyer's achievements on behalf of clients or former clients may be misleading if presented so as to lead a reasonable person to form an unjustified expectation that the same results could be obtained for other clients in similar matters without reference to the specific factual and legal circumstances of each client's case. Similarly, an unsubstantiated comparison of the lawyer's services or fees with the services or fees of other lawyers may be misleading if presented with such specificity as would lead a reasonable person to conclude that the comparison can be substantiated. The inclusion of an appropriate disclaimer or qualifying language may preclude a finding that a statement is likely to create unjustified expectations or otherwise mislead the public. [4] See Rule 16-804(E) NMRA for the prohibition against stating or implying an ability to influence improperly a government agency or official or to achieve results by means that violate the Rules of Professional Conduct or other law. The 2017 amendment, approved by Supreme Court Order No. 17-8300-018, effective December 31, 2017, after "shall not make", added "elicit, or endorse"; and added the committee commentary. The 2015 amendment, approved by Supreme Court Order No. 15-8300-007, effective December 31, 2015, in the ABA Comment, in Paragraph 1, after "permitted by", deleted "Rule 7.2" and added "Rule 16-702 NMRA"; in Paragraph 3, after "mislead", deleted "a prospective client" and added "the public"; and in Paragraph 4, after "See also", deleted "Rule 8.4(c)" and added "Rule 16-804(E) NMRA". The 2005 amendment, effective January 20, 2005, replaced all of Rule 16-701 NMRA with the present rule, withdrew the commentary entitled "General Comments on the Regulation of Lawyer Advertising" which included the "State Bar Task Force Comments" and the "New Mexico Trial Lawyers Association Comments" and replaced the second paragraph of the ABA comment to the model rule with a new the second, third and fourth paragraph. The 1999 amendment, effective January 1, 2000, added the language following Subparagraph C(4); near the end of the first sentence in Paragraph D, inserted "or advertisements the contents of which are limited to the information described in Paragraph D of Rule 16-702", added the next-to-last-sentence, and added present Subparagraph D(4) and Paragraph E. The 1998 amendment, effective January 1, 1999, in Paragraph B deleted former Subparagraph (5), which read: "does not disclose the location, by city, town or county of the offices of the lawyer or lawyers whose services are being advertised;" and redesignated former Subparagraph (6) as Subparagraph (5); and in Subparagraph C(4) deleted ", except as provided in Paragraph A of Rule 16-703," following "other solicitation" near the beginning and added "unless the accident occurred more than thirty (30) days prior to the mailing or other communication or the communication or other solicitation is permitted by Rule 16-703(A) of these rules" at the end. The 1993 amendment, effective November 1, 1993, in the introductory language of Paragraph D, inserted "shall be at the beginning of the presentation and" in the second sentence and inserted "the top of" in the third sentence; substituted "Subparagraphs (1) through (9)" for "Subparagraphs (2) through (8)" in Subparagraph D(1); and substituted the language beginning "the classified" for "or" at the end of Subparagraph D(2). The second 1992 amendment, effective December 1, 1992, substituted "lawyers or law firm" for "or lawyers" in Subparagraph (4) of Paragraph B. The first 1992 amendment, effective for all lawyer advertisements mailed, displayed or broadcast on and after August 1, 1992, added the Paragraph A designation to the provisions of the former rule, rewriting those provisions, and added Paragraphs B to D. Law reviews. - For note, "The Tenth Circuit Strikes Down New Mexico's Ban on Targeted Direct-Mail Lawyer Advertising - Revo v. Disciplinary Board of the Supreme Court," see 28 N.M.L. Rev. 641 (1998). Am. Jur. 2d, A.L.R. and C.J.S. references. - 7 Am. Jur. 2d Attorneys at Law § 66. Lawyer publicity as breach of legal ethics, 4 A.L.R.4th 306. Modern status of law regarding solicitation of business by or for attorney, 5 A.L.R.4th 866. Advertising as ground for disciplining attorney, 30 A.L.R.4th 742. Validity of state judicial or bar association rule forbidding use of law firm name unless it contains exclusively names of persons who are or were members of that state's bar, as it applies to out-of-state law firm, 33 A.L.R.4th 404. 7 C.J.S. Attorney and Client §§ 77 to 87.