State Bar of New Mexico Ethics Opinions
Free plain-English summaries of legal ethics opinions issued by the State Bar of New Mexico, with full citations and source links on every page.
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Can a New Mexico lawyer use generative AI tools like ChatGPT in the practice of law?
Yes. A New Mexico lawyer may use generative AI in practice, but must do so responsibly, protecting client confidences, verifying AI output for accuracy and candor to courts, charging only for time act…
Can a New Mexico lawyer practice New Mexico law remotely while physically located in another state?
Yes. A New Mexico lawyer may practice New Mexico law through technology from another state or country, provided they do not violate the rules of the place where they are physically located, do not hol…
Does New Mexico require every practicing lawyer to have a written succession plan, and what must it contain?
Yes. Rule 16-119 NMRA requires every lawyer practicing in New Mexico to keep a written succession plan naming an assisting lawyer and locating client and trust-account information, to notify clients o…
Can a New Mexico lawyer split a fee with a lawyer in another firm who only signed up the client and did no work?
No. A fee split with a lawyer who performs no services and assumes no responsibility is an impermissible referral fee. Lawyers in different firms may divide a fee only if the division is proportional …
What are a New Mexico lawyer's duties to the client when serving as local counsel alongside a pro hac vice attorney?
A New Mexico lawyer who appears as local counsel with a pro hac vice attorney has the same duties under the Rules of Professional Conduct as in any matter; the pro hac vice arrangement does not reduce…
Can a New Mexico personal injury lawyer agree to personally indemnify the opposing party against third-party claims as a condition of the client's settlement?
No. A lawyer who personally guarantees, from the lawyer's own funds, to indemnify the opposing party against future third-party claims provides prohibited financial assistance to the client and create…
Can a lawyer talk directly, without opposing counsel's consent, to a former managerial employee of an opposing organization?
The committee concluded a lawyer may communicate directly with a former constituent of an organization, including a former managerial employee, because the no-contact rule reaches only current constit…
Can a New Mexico lawyer charge a contingent fee on an auto-accident property damage claim and charge interest on costs advanced?
Yes to both, within limits. A contingent fee on a property damage claim is permitted if written, reasonable under Rule 16-105(A), and clearly communicated; interest on advanced costs is allowed if rea…
Can a lawyer the insurer hired and pays to defend an insured later represent that insured against the same insurer for breach of contract or bad faith?
The committee concluded the answer is no, because there is a significant risk the representation would be materially limited by the lawyer's responsibilities to the insurer and by the lawyer's own int…
Can a New Mexico law firm organize as a limited liability company under the Rules of Professional Conduct?
The committee concluded it may be ethically possible for a New Mexico law firm to organize as an LLC, but only if doing so is otherwise lawful, and it could not resolve whether the law permits it beca…
Can a New Mexico lawyer pay an expert witness a fee that is contingent on the outcome of the case?
The opinion concluded that paying a fact witness on a contingency basis violated the rules, while whether paying an expert witness contingently violated them turned on undeveloped New Mexico substanti…
Can a New Mexico lawyer publicly comment on or criticize a judge or candidate for legal office?
The opinion concluded that lawyers are encouraged to give honest, candid opinions about judges and candidates for legal office, but must not make statements they know to be false or that are made with…
Can a New Mexico solo or two-lawyer firm call itself "& Associates" when all of its lawyers are already named?
The opinion concluded no; "associates" means lawyer employees, so appending "& Associates" when all the firm's lawyers are already named implies more lawyers than exist and is misleading under Rules 1…
Can a New Mexico lawyer secretly record a witness who has said the interview is off the record?
The opinion concluded that under those facts, no; where the lawyer knows the witness believes the interview is off the record, secretly recording it (or having an agent do so) deceives the witness and…
Does a New Mexico lawyer have to report another lawyer's unreasonable fee?
The opinion concluded that charging an unreasonable fee is misconduct, and that a lawyer with knowledge of it has a mandatory duty under Rule 16-803 to report it to the appropriate authority; a lawyer…
How long must a New Mexico lawyer keep a closed client file, and what must the lawyer do before destroying it?
The opinion concluded that a lawyer generally must keep a client's file for five years after the representation ends, must review the file and return original or client-property documents before destr…
Can a lawyer who is an elected city councilor represent clients in the city's municipal court or before other city tribunals and agencies?
The committee concluded a lawyer who is a city councilor should refrain from representing clients before municipal tribunals and agencies over which the lawyer has oversight or fiscal influence, becau…
Can a lawyer answer legal questions and post articles on an online listserve or message board without violating the confidentiality, conflict, and advertising rules?
The committee concluded there is no single answer: answering general legal questions usually does not create representation, but answering specific questions can create an attorney-client relationship…
Can an insurance defense lawyer send the insured's detailed legal bills to the insurer's third-party auditing company without the insured's informed consent?
The committee concluded the lawyer may not disclose the insured's defense bills to a third-party auditor without the insured's informed consent, and that the lawyer ordinarily may not even seek that c…
Can a lawyer let clients fund trust-account retainer deposits by credit card, with the lawyer covering the processor's fee so the full amount lands in trust?
The committee concluded the proposal does not comport with the rules, because credit-card charge-backs can commingle one client's trust funds with another's and the lawyer's own funds in violation of …
Is it unethical for a lawyer to secretly record a conversation when New Mexico courts have approved one-party-consent recording as lawful?
Reconsidering its 1988 opinion, the committee concluded a prosecutor following the statutes may secretly record without acting unethically, and that secret recording by other lawyers is not unethical …
Can New Mexico lawyers practice law as partners in a Registered Limited Liability Partnership?
The committee concluded it would not be unethical for lawyers to practice in a Registered LLP if they order its affairs to preserve accountability under the rules, but cautioned that neither the legis…
When a contingent fee agreement ends early, can the lawyer collect a fee, and what can a contingent fee contract say about fees on termination?
The committee concluded a contingent fee agreement may give the lawyer a quantum meruit fee when the client discharges the lawyer without cause, but only up to the maximum contract fee and only when t…
When a client in litigation insists on drafting court papers, appearing without the lawyer, and capping the lawyer's hours in ways that block the lawyer's independent judgment, what are the lawyer's duties and when must the lawyer withdraw?
The committee concluded the lawyer must keep control over the accuracy of court filings and the exercise of independent judgment, must counsel the client (preferably in writing) about the consequences…
Can a lawyer pay a for-profit lawyer referral service, join a network of non-lawyer professionals who refer business to each other, and advertise that network jointly?
The committee concluded all three were unethical under the rules then in effect: paying a for-profit referral service buys recommendations, a cross-referral network with non-lawyers impairs the lawyer…
After a client dies, can the lawyer disclose the client's confidential statements to police investigating the death, or must the lawyer keep asserting the privilege?
The committee concluded the lawyer must continue to assert the deceased client's privilege until either a court-appointed personal representative makes an informed waiver after consultation, or a cour…
Can a lawyer arrange for real estate brokers to steer title-company closing work to the lawyer in exchange for the lawyer giving the brokers free legal advice?
The committee concluded the arrangement is not ethical, because giving the broker free services in exchange for directing closing work is paying for recommendations, and the lawyer cannot give buyer a…
Can a lawyer mail a witness a document that looks like a court subpoena, but was never issued or authenticated by the court, to pressure the witness into appearing?
The committee concluded the practice is forbidden, because making a witness believe a self-prepared document is compulsory court process violates the rules against prohibited inducements, disobeying t…
Must a lawyer tell the client the hourly rates charged for paralegals and other non-lawyer staff, and can the lawyer bill that non-lawyer time as if it were attorney time?
The committee concluded a lawyer must disclose the rates charged for non-lawyer staff and may bill separately for their supervised work, but billing non-lawyer time as attorney time would be a fraudul…
When a lawyer is on contract to a government entity, sits on a client's board, or has firm members serving as guardians ad litem, can the lawyer also represent clients whose interests look adverse to those responsibilities?
The committee concluded Rule 16-107 permits such representation only if the lawyer reasonably believes it will not adversely affect either client and both clients consent after full disclosure, and th…
Does a criminal defense lawyer have to volunteer information to the court (a guilty plea, or a sentencing hearing that was never scheduled) when neither the lawyer nor the client was asked and the client did not lie?
The committee concluded the candor and truthfulness rules require a lawyer not to make a false statement of material fact, but impose no duty to volunteer the disposition of a related charge when no o…
Can a full-time municipal attorney advocate for city management in a grievance heard by the city commission when that same commission is the attorney's regular client in its other capacities?
The committee concluded the rule barring a lawyer from appearing as an advocate before a governmental body the lawyer represents did not apply to a salaried municipal attorney with no private clients,…
When federal law forces a lawyer to report a client's $10,000-plus cash fee and the client's identity, how does that square with the duty of client confidentiality?
The committee did not resolve the conflict between 26 U.S.C. Section 6050I and the confidentiality rule, but it concluded a lawyer who knows a reportable cash payment is coming must, before accepting …
Do the ethics rules require a lawyer to report serious crimes she discovers an opposing party committed while pursuing a civil claim, especially after a confidential settlement?
The opinion concluded the rules do not impose a special reporting duty for a non-client, non-lawyer's crimes beyond an ordinary citizen's, except for the criminal laws on compounding a felony or being…
Must a lawyer disclose a client's financial fraud when the lawyer himself was used to give a third party a false assurance the client never intended to honor?
The opinion concluded that although disclosure of a client's crime causing only financial harm is ordinarily optional, disclosure became mandatory here because the lawyer had communicated with the thi…
When a lawyer learns another lawyer may have committed serious misconduct, such as offering to pay witnesses to slant testimony, what level of knowledge triggers the mandatory duty to report it?
The opinion concluded that offering money to influence testimony is a serious violation that must be reported, and that the mandatory duty to report under Rule 16-803 is triggered when the lawyer has …
May a lawyer refer collection of unpaid fees against clients to a credit bureau or a commercial collection agency?
The opinion concluded it is improper to report a client's unpaid account to a credit bureau solely to impede the client's credit, but a lawyer may generally use a contingent-fee commercial collection …
May a lawyer secretly tape-record interviews with potential witnesses, and interview them without disclosing that it is to gather facts for a possible lawsuit?
A divided committee concluded that secretly recording a witness interview is an implicit misrepresentation and unethical, and that if witnesses are unlikely to realize they are being interviewed by a …
May a lawyer who drafted a husband's antenuptial agreement twelve years ago now represent the wife in a divorce, where the agreement's property is still in existence?
The opinion concluded the lawyer may not represent the wife unless the husband consents after consultation, because the divorce's division of property is substantially related to drafting the antenupt…
May a lawyer charge a contingent fee in a domestic relations matter to collect child support arrears or to win a divided share of an ex-spouse's retirement after the divorce is final?
The opinion concluded the rule barring contingent fees keyed to securing a divorce or to alimony, support, or property settlement does not bar a contingent fee in post-decree proceedings to enforce a …
May a lawyer join a for-profit marketing franchise, paying royalties on gross revenues and advertising under the franchisor's trademarks like "Personal Injury Network"?
The opinion concluded a lawyer may pay royalties that reflect the reasonable cost of advertising and may use the franchisor's trademarks, provided there are no referrals, the arrangement does not comp…
May a plaintiff's lawyer contact the state Risk Management Division directly to discuss or negotiate settlement when private defense counsel has been retained, without that counsel's consent?
The opinion concluded it is improper for plaintiff's counsel to initiate direct communication with the Risk Management Division without defense counsel's consent, treating the Division like a private …
May a lawyer actively seek his statutory attorney's fee at a fee hearing when the client objects because the fee comes out of her recovery?
The opinion concluded the lawyer may actively seek his fee, treating it like any post-representation fee dispute, since the client consented to the statutory fee basis in writing; the conflict and zea…
How should a lawyer handle the destruction of closed client files, and what must be retained?
The opinion concluded a lawyer may destroy closed files only after returning all client property and original documents, indefinitely keeping documents of intrinsic value (such as wills and deeds), re…
May a lawyer withdraw when the client will not pay, and may the lawyer tell the judge at the withdrawal hearing that he believes the case may be frivolous?
The opinion concluded the lawyer may seek permissive withdrawal for substantial nonpayment after reasonable warning, and to avoid the conflict between not prejudicing the client and not pursuing frivo…
May a lawyer give clients or the public information about a prepaid legal services plan, such as enclosing a brochure with billings or referring clients to a plan?
The opinion concluded a lawyer may disseminate information about prepaid legal services to clients and the public, including enclosing a brochure with a current client's bill, provided the lawyer comp…
May a New Mexico lawyer pay per-referral fees to a private, for-profit lawyer referral service that the bar has not approved?
The opinion concluded that paying a fee to a private, for-profit referral service not sponsored or approved by a bar association violated both the former Code (Rule 2-103) and the new Rules (Rule 16-7…
Do attorneys who volunteer to teach a pro se divorce clinic, giving only general information and no individual advice, form an attorney-client relationship with the participants?
The committee declined to decide whether an attorney-client relationship would form, calling that a question of law for counsel, but it saw no ethical objection to the clinic and flagged conflicts, su…
May a lawyer cite or threaten the criminal penalties for unpaid supplies or bad checks in a civil demand letter, and if not, may the lawyer have the client send such a letter instead?
The opinion concluded that threatening or referring to criminal sanctions in a civil demand letter was improper under both the former Code and the new Rules of Professional Conduct, and that a lawyer …
When a lawyer may be called as a witness against a former client in a case his current firm is defending, must he keep silent, talk to opposing counsel, or tell his own firm about the potential conflict?
The opinion concluded the lawyer was not required to talk to the former client's new counsel, but he could and probably should tell his own firm that he might be a witness, so the firm could evaluate …
May a lawyer mail a periodic newsletter on legal topics to current clients, former clients, other professionals, and prospective clients as a way to attract business?
The opinion concluded the lawyer could send the newsletter as a permissible written solicitation, provided it placed less emphasis on the law firm's experience, because unsubstantiated claims of exper…
Must a lawyer disclose to the court a statute of limitations that could defeat his own client's claim when opposing counsel is unaware of it?
The opinion concluded the lawyer had no duty to disclose the statute of limitations, with committee members reasoning variously that it was not directly adverse because arguably inapplicable, that the…
Must a lawyer alert the court to its apparent error in entering judgment against a pro se defendant whose affidavit arguably defeated summary judgment?
The opinion concluded the lawyer had no obligation to point out the apparent error, because the situation was not covered by the candor rule, a pro se party is bound by the same procedural rules as a …
When an insurance company mistakenly tenders a settlement check ten times the intended amount, must the plaintiff's lawyer disclose the apparent error?
The opinion concluded the lawyer should disclose the apparent error, because a client has no right to take unfair advantage of an obvious mistake and the lawyer's duty is to act honestly and avoid a p…
Can a lawyer who served as a hearing officer making only preliminary procedural rulings in a board's rulemaking later represent that board as counsel on appeal of the rule?
The opinion concluded the lawyer may serve as counsel on appeal, because ruling on two preliminary procedural matters in a rulemaking did not make him an adjudicative officer under Rule 16-112(A), and…
Does a lawyer have an ethical duty to disclose that a client has told the lawyer she intends to commit suicide?
The opinion concluded that because suicide is not a crime under New Mexico law and a lawyer who fails to disclose it does not aid a crime or fraud, the lawyer had no duty to disclose the client's stat…
Can a lawyer represent a client both individually and in his capacity as executor of an estate when both the client and the estate are defendants who might shift liability to each other in the same lawsuit?
The opinion concluded that, because the client and the estate were co-defendants who might each try to shift liability to the other, the lawyer could not represent both; the executor could not validly…
When a lawyer moves to a new firm, is that firm disqualified from a matter against a client of the lawyer's old firm, and can screening the lawyer off avoid disqualification?
The opinion concluded the new firm is not disqualified unless the matter is the same or substantially related to one the old firm handled while the lawyer was there, and even then only if the lawyer h…
Can a lawyer co-sign or guarantee a bank loan covering a client's living expenses when the loan is to be repaid from the client's pending, unliquidated claim?
The opinion concluded it was improper for the attorney to guarantee a client's promissory note when repayment was anticipated from an unliquidated claim the attorney was handling, because Rule 5-103(B…
Can a former assistant city attorney who once investigated an employee's discrimination complaint later represent that employee in a retaliation claim against the city?
The opinion concluded the retaliation claims did not appear to meet the substantially-related test of Model Rule 1.11, so the former assistant city attorney was not disqualified, subject to caveats ab…
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Legal ethics opinions from the State Bar of New Mexico interpret the rules of professional conduct for working lawyers, in response to inquiries from members and committees. They are not binding like court discipline decisions, but courts and discipline boards treat formal opinions as substantial guidance on how the rules apply. Every opinion above has a plain-English question and short answer, plus a link to the original source on the bar's site.