Scope
The Rules of Professional Conduct are rules of reason. They should be interpreted with reference to the purposes of legal representation and of the law itself. Some of the rules are imperatives, cast in the terms "shall" or "shall not". These define proper conduct for purposes of professional discipline. Others, generally cast in the term "may", are permissive and define areas under the rules in which the lawyer has discretion to exercise professional judgment. No disciplinary action should be taken when the lawyer chooses not to act or acts within the bounds of such discretion. Other rules define the nature of relationships between the lawyer and others. The rules are thus partly obligatory and disciplinary and partly constitutive and descriptive in that they define a lawyer's professional role. Many of the committee commentaries use the term "should". Commentaries do not add obligations to the rules but provide guidance for practicing in compliance with the rules.
The rules presuppose a larger legal context shaping the lawyer's role. That context includes court rules and statutes relating to matters of licensure, laws defining specific obligations of lawyers and substantive and procedural law in general. The commentaries are sometimes used to alert lawyers to their responsibilities under such other law.
Compliance with the rules, as with all law in an open society, depends primarily upon understanding and voluntary compliance, secondarily upon reinforcement by peer and public opinion and finally, when necessary, upon enforcement through disciplinary proceedings. The rules do not, however, exhaust the moral and ethical considerations that should inform a lawyer, for no worthwhile human activity can be completely defined by legal rules. The rules simply provide a framework for the ethical practice of law.
Furthermore, for purposes of determining the lawyer's authority and responsibility, principles of substantive law external to these rules determine whether a client-lawyer relationship exists. Most of the duties flowing from the client-lawyer relationship attach only after the client has requested the lawyer to render legal services and the lawyer has agreed to do so. But there are some duties, such as that of confidentiality under Rule 16-106 NMRA of the Rules of Professional Conduct, that attach when the lawyer agrees to consider whether a client-lawyer relationship shall be established. See Rule 16-118 NMRA of the Rules of Professional Conduct. Whether a client-lawyer relationship exists for any specific purpose can depend on the circumstances and may be a question of fact.
Under various legal provisions, including constitutional, statutory and common law, the responsibilities of government lawyers may include authority concerning legal matters that ordinarily reposes in the client in private client-lawyer relationships. For example, a lawyer for a government agency may have authority on behalf of the government to decide upon settlement or whether to appeal from an adverse judgment. Such authority in various respects is generally vested in the attorney general and the state's attorney in state government, and their federal counterparts, and the same may be true of other government law officers. Also, lawyers under the supervision of these officers may be authorized to represent several government agencies in intragovernmental legal controversies in circumstances where a private lawyer could not represent multiple private clients. These rules do not abrogate any such authority.
Failure to comply with an obligation or prohibition imposed by a rule is a basis for invoking the disciplinary process. The rules presuppose that disciplinary assessment of a lawyer's conduct will be made on the basis of the facts and circumstances as they existed at the time of the conduct in question and in recognition of the fact that a lawyer often has to act upon uncertain or incomplete evidence of the situation. Moreover, the rules presuppose that whether or not discipline should be imposed for a violation, and the severity of a sanction, depend on all the circumstances, such as the willfulness and seriousness of the violation, extenuating factors and whether there have been previous violations.
Violation of a rule should not itself give rise to a cause of action against a lawyer nor should it create any presumption in such a case that a legal duty has been breached. In addition, violation of a rule does not necessarily warrant any other non-disciplinary remedy, such as disqualification of a lawyer in pending litigation. The rules are designed to provide guidance to lawyers and to provide a structure for regulating conduct through disciplinary agencies. They are not designed to be a basis for civil liability. Furthermore, the purpose of the rules can be subverted when they are invoked by opposing parties as procedural weapons. The fact that a rule is a just basis for a lawyer's self-assessment, or for sanctioning a lawyer under the administration of a disciplinary authority, does not imply that an antagonist in a collateral proceeding or transaction has standing to seek enforcement of the rule. Nevertheless, since the rules do establish standards of conduct by lawyers, a lawyer's violation of a rule may be evidence of breach of the applicable standard of conduct.
The accompanying each rule explains and illustrates the meaning and purpose of the rule. The Preamble and Scope provide general orientation. The commentaries are intended as guides to interpretation, but the text of each rule is authoritative.
ANNOTATIONS The 2008 amendment, approved by Supreme Court Order No. 08-8300-029, effective November 3, 2008, in the second paragraph, deleted language describing a lawyer?s role as intermediary between clients; added the third paragraph; in the sixth paragraph, added language to require lawyers to improve access to the legal system and to further the public?s understanding of and confidence in the rule of law and the judicial system; added the last sentence in the ninth paragraph to require a lawyer to zealously protect and pursue a client?s legitimate interests; added the last sentence in the fifteenth paragraph; in the eighteenth paragraph, deleted the sentence which permitted government lawyers to represent the "public interest"; in the twentieth paragraph, deleted the sentence which provided that nothing in the Rules of Professional Conduct augment any substantive legal duty of lawyers of extra-disciplinary consequences of violating such a duty, and added the last sentence; deleted the former twenty-first and twenty-second paragraphs which concerned the application of the Rules of Professional Conduct to the attorney-client or work product privilege and the lawyer?s exercise of discretion not to disclose information under Rule 16-106 NMRA; in the twenty-first paragraph, deleted the sentences which stated that research notes compare counterparts of the ABA Model Code of Professional Responsibility and that research notes do not affect the application or interpretation of the Rules of Professional Conduct and the comments; and deleted the former section on Terminology which defined terms and phrases used in the Rules of Professional Conduct.