N.M. R. Prof'l. Cond. 16-703

As amended through November 1, 2020
Rule 16-703 - Solicitation of clients
A.In-person, live or real-time contact. A lawyer shall not by in-person, live telephone or real-time electronic contact solicit professional employment when a significant motive for the lawyer's doing so is the lawyer's pecuniary gain, unless the person contacted:
(1) is a lawyer; or
(2) has a family, close personal or prior professional relationship with the lawyer.
B.Restrictions on all contacts. A lawyer shall not solicit professional employment by written, recorded or electronic communication or by in-person, telephone or real-time electronic contact even when not otherwise prohibited by Paragraph A, if:
(1) the target of the solicitation has made known to the lawyer a desire not to be solicited by the lawyer; or
(2) the solicitation involves coercion, duress or harassment.
C.Notice required. Every written, recorded or electronic communication from a lawyer soliciting professional employment from anyone known to be in need of legal services in a particular matter shall include the words "Advertising Material" on the outside envelope, if any, and at the beginning and ending of any written, recorded or electronic communication, unless the recipient of the communication is a person specified in Subparagraphs (A)(1) or (2).
D.Exceptions. Notwithstanding the prohibitions in Paragraph A, a lawyer may participate with a prepaid or group legal service plan operated by an organization not owned or directed by the lawyer that uses in-person or telephone contact to solicit memberships or subscriptions for the plan from persons who are not known to need legal services in a particular matter covered by the plan.

N.M. R. Prof'l. Cond. 16-703

Adopted, effective October 1, 1989; as amended, effective August 1, 1992; as amended by Supreme Court Order No. 08-8300-029, effective November 3, 2008; as amended by Supreme Court Order No. 15-8300-007, effective December 31, 2015.

Committee commentary. -

[1] A solicitation is a targeted communication initiated by the lawyer that is directed to a specific person and that offers to provide, or can reasonably be understood as offering to provide, legal services. In contrast, a lawyer's communication typically does not constitute a solicitation if it is directed to the general public, such as through a billboard, an Internet banner advertisement, a website or a television commercial, or if it is in response to a request for information, or is automatically generated in response to Internet searches.

[2] There is a potential for abuse when a solicitation involves direct in-person, live telephone or real-time electronic contact by a lawyer with someone known to need legal services. These forms of contact subject a person to the private importuning of the trained advocate in a direct interpersonal encounter. The person, who may already feel overwhelmed by the circumstances giving rise to the need for legal services, may find it difficult fully to evaluate all available alternatives with reasoned judgment and appropriate self-interest in the face of the lawyer's presence and insistence upon being retained immediately. The situation is fraught with the possibility of undue influence, intimidation and overreaching.

[3] This potential for abuse inherent in direct in-person, live telephone or real-time electronic solicitation justifies its prohibition, particularly since lawyers have alternative means of conveying necessary information to those who may be in need of legal services. In particular, communications can be mailed or transmitted by email or other electronic means that do not involve real-time contact and do not violate other laws governing solicitations. These forms of communications and solicitations make it possible for the public to be informed about the need for legal services and about the qualifications of available lawyers and law firms without subjecting the public to direct in-person, telephone or real-time electronic persuasion that may overwhelm a person's judgment.

[4] The use of general advertising and written, recorded, or electronic communications to transmit information from lawyer to the public, rather than direct in-person, live telephone or real-time electronic contact, will help to assure that the information flows cleanly as well as freely. The contents of advertisements and communications permitted under Rule 16-702 NMRA of the Rules of Professional Conduct can be permanently recorded so that they cannot be disputed and may be shared with others who know the lawyer. This potential for informal review is itself likely to help guard against statements and claims that might constitute false and misleading communications in violation of Rule 16-701 NMRA of the Rules of Professional Conduct. The contents of direct in-person, live telephone or real-time electronic contact can be disputed and may not be subject to third-party scrutiny. Consequently, they are much more likely to approach (and occasionally cross) the dividing line between accurate representations and those that are false and misleading.

[5] There is far less likelihood that a lawyer would engage in abusive practices against a former client or a person with whom the lawyer has a close personal or family relationship or in situations in which the lawyer is motivated by considerations other than the lawyer's pecuniary gain. Nor is there a serious potential for abuse when the person contacted is a lawyer. Consequently, the general prohibition in Paragraph A of Rule 16-703 NMRA of the Rules of Professional Conduct and the requirements of Paragraph C of that rule are not applicable in those situations. Also, Paragraph A is not intended to prohibit a lawyer from participating in constitutionally protected activities of public or charitable legal-service organizations or bona fide political, social, civic, fraternal, employee or trade organizations whose purposes include providing or recommending legal services to their members or beneficiaries.

[6] But even permitted forms of solicitation can be abused. Thus, any solicitation that contains information that is false or misleading within the meaning of Rule 16-701 NMRA of the Rules of Professional Conduct, that involves coercion, duress or harassment within the meaning of Rule 16-703(B)(2) NMRA of the Rules of Professional Conduct or that involves contact with someone who has made known to the lawyer a desire not to be solicited by the lawyer within the meaning of Rule 16-703(B)(1) NMRA of the Rules of Professional Conduct is prohibited. Moreover, if after sending a letter or other communication permitted by Rule 16-702 NMRA of the Rules of Professional Conduct the lawyer receives no response, any further effort to communicate with the recipient of the communication may violate the provisions of Rule 16-703(B) NMRA of the Rules of Professional Conduct.

[7] This rule is not intended to prohibit a lawyer from contacting representatives of organizations or groups that may be interested in establishing a group or prepaid legal plan for their members, insureds, beneficiaries or other third parties for the purpose of informing such entities of the availability of and details concerning the plan or arrangement that the lawyer or lawyer's firm is willing to offer. This form of communication is not directed to people who are seeking legal services for themselves. Rather, it is usually addressed to an individual acting in a fiduciary capacity seeking a supplier of legal services for others who may, if they choose, become prospective clients of the lawyer. Under these circumstances, the activity that the lawyer undertakes in communicating with such representatives and the type of information transmitted to the individual are functionally similar to and serve the same purpose as advertising permitted under Rule 16-702 NMRA of the Rules of Professional Conduct.

[8] The requirement of Rule 16-703(C) NMRA of the Rules of Professional Conduct that certain communications be marked "Advertising Material" does not apply to communications sent in response to requests of potential clients or their spokespersons or sponsors. General announcements by lawyers, including changes in personnel or office location, do not constitute communications soliciting professional employment from a client known to be in need of legal services within the meaning of this rule.

[9] Paragraph D of this rule permits a lawyer to participate with an organization that uses personal contact to solicit members for its group or prepaid legal service plan, provided that the personal contact is not undertaken by any lawyer who would be a provider of legal services through the plan. The organization must not be owned by or directed (whether as manager or otherwise) by any lawyer or law firm that participates in the plan. For example, Paragraph D would not permit a lawyer to create an organization controlled directly or indirectly by the lawyer and use the organization for the in-person or telephone solicitation of legal employment of the lawyer through memberships in the plan or otherwise. The communication permitted by these organizations also must not be directed to a person known to need legal services in a particular matter, but is to be designed to inform potential plan members generally of another means of affordable legal services. Lawyers who participate in a legal service plan must reasonably assure that the plan sponsors are in compliance with Rules 16-701, 16-702, and 16-703(B) NMRA of the Rules of Professional Conduct. See Rule 16-804(A) 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. 15-8300-007, effective December 31, 2015.]

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ANNOTATIONS The 2015 amendment, approved by Supreme Court Order No. 15-8300-007, effective December 31, 2015, in the heading, deleted "Direct contact with prospective" and added "Solicitation of"; in Paragraph A, after "professional employment", deleted "from a prospective client"; in the introductory sentence of Paragraph B, after "professional employment", deleted "from a prospective client"; in Subparagraph B(1), deleted "prospective client" and added "target of the solicitation"; in Paragraph C, after "professional employment from", deleted "a prospective client" and added "anyone", and after "Subparagraphs", deleted "(1) or (2) of Paragraph A" and added "(A)(1) or (2)"; and revised the committee commentary to define "solicitation" and to provide examples of what type of communication is permitted under this rule, and made stylistic changes throughout. The 2008 amendment, approved by Supreme Court Order No. 08-8300-29, effective November 3, 2008, deleted "in-person or telephone" in the title; deleted former provisions of the rule which permitted a lawyer or a lawyer's agent to engage in the in-person or telephone solicitation of business if the prospective client is a relative or the lawyer has a prior personal business or professional relationship with the prospective client or if the communication is made under the auspices of a public or charitable legal organization or other organizations whose purposes include providing or recommending legal services; and added new Paragraphs A through D. The 1992 amendment, effective for all lawyer advertisements mailed, displayed or broadcast on and after August 1, 1992, rewrote the introductory paragraph and Paragraph A; added present Paragraph B; and deleted former Paragraphs B and C, relating to exceptions to permitted solicitations and advertising designations, respectively.