Can a lawyer admitted in another state announce to New Mexico lawyers that he is available to consult in a specialized field and associate with a New Mexico lawyer?

Plain-English summary

A Washington, D.C. lawyer asked whether he could announce to New Mexico lawyers his availability to perform professional services in international commercial law. The opinion concluded that New Mexico Disciplinary Rule 2-105 (Limitation of Practice) permitted a lawyer to distribute to other lawyers, and publish in journals, an announcement of his availability to act as a consultant to or associate of other lawyers in a particular branch of law, subject to the rule's regulation of content, manner, and frequency. Advertising by one lawyer for consultation services with another was therefore permitted.

The opinion then addressed an out-of-state lawyer associating with a New Mexico lawyer. Relying on ABA Formal Opinion 316, the Committee concluded that an arrangement between lawyers of different states was not prohibited so long as each lawyer's jurisdictional limitations were clearly represented to clients and the public, and the lawyer admitted in New Mexico performed the acts defined by New Mexico as the practice of law. The Committee noted ABA Informal Opinion 1355 as the most recent ABA guidance and pointed back to Formal Opinion 316.

The opinion cautioned, citing In the Matter of Bailey, that the New Mexico lawyer had to take care not to encourage the unauthorized practice of law in violation of DR 3-101; in Bailey an attorney had been publicly censured for aiding an unauthorized person and holding that person out as a partner in advertising. The opinion closed by noting that the disciplinary rule on division of fees with another lawyer (cited in the opinion as D.R. 1-107) required full disclosure.

Currency note

This opinion was issued in 1983, when New Mexico lawyers were governed by the former New Mexico Code of Professional Responsibility, which the State Bar later replaced with the Rules of Professional Conduct; it also predates the State Bar of New Mexico's November 3, 2008 revisions to those Rules (the New Mexico adoption of the ABA Ethics 2000 changes). The Canons and Disciplinary Rules it cites are no longer in force. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Could an out-of-state lawyer advertise to New Mexico lawyers that he was available to consult?

A: Yes. The opinion concluded that DR 2-105 permitted a lawyer to announce, to other lawyers and in journals, his availability to act as a consultant or associate in a particular branch of law, subject to the rule's limits on content, manner, and frequency.

Q: Could a lawyer admitted in another state work with a New Mexico lawyer on New Mexico matters?

A: Yes, within limits. Following ABA Formal Opinion 316, the opinion concluded the arrangement was permissible so long as jurisdictional limitations were clearly represented and the New Mexico-admitted lawyer performed the acts defined as the practice of law in New Mexico.

Q: What was the main risk the opinion flagged?

A: Aiding the unauthorized practice of law. Citing In the Matter of Bailey and DR 3-101, the opinion warned that the New Mexico lawyer had to take care not to encourage an unadmitted lawyer to engage in the practice of law in New Mexico.

Background and rules framework

The opinion interpreted the former New Mexico Code of Professional Responsibility: DR 2-105 (limitation of practice; announcements of availability to consult), DR 3-101 (aiding unauthorized practice of law), and the disciplinary rule on division of fees with another lawyer. It relied on ABA Formal Opinion 316 (1967) and ABA Informal Opinion 1355 (1976) on multistate practice.

Citations and references

Rules of Professional Conduct (former Code):

• Model Code DR 2-105 / NM Code Rule 2-105 (limitation of practice; consultant announcements)
• Model Code DR 3-101 / NM Code Rule 3-101 (aiding unauthorized practice of law)
• NM Code rule on division of fees with another lawyer (cited in the opinion as D.R. 1-107)

Cases:

• In the Matter of Bailey, 97 N.M. 88, 637 P.2d 38 (1981), public censure for aiding unauthorized practice and holding out an unadmitted person as a partner.

Other opinions cited:

• ABA Formal Opinion 316 (1967): practice of law across state lines.
• ABA Informal Opinion 1355 (1976): affiliation of law firms for multistate office practice.

See also

• NM Ethics Op. 1983-1: Use of the National Legal Referral Service
• NM Ethics Op. 1983-4: Combined Interstate Firm Name

Source

• Landing page: https://www.sbnm.org/Leadership/Committees/Ethics-Advisory-Committee/Ethics-Advisory-Opinions
• Original PDF: https://www.sbnm.org/Portals/NMBAR/AboutUs/committees/Ethics/1983/1983-2.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Advisory Opinion 1983-2
A Washington, D.C. lawyer inquired into the ethical propriety of announcing to New Mexico lawyers his availability to perform professional services in international commercial law.
New Mexico Disciplinary Rule 2-105, Limitation of Practice, N.M. Stat. Ann. (1982 Repl. Pam.) permits lawyers to distribute to other lawyers and publish in journals an announcement of their availability to act as a consultant to or an associate of other lawyers in a particular branch of law. The rule regulates the content, manner, and frequency of announcing and advertising services. Thus, advertising by one lawyer for consultation services with another is permitted by this D.R.
Another issue which this inquiry raises is that of the regulation of the practice of law by a lawyer licensed in a different jurisdiction but associated with a New Mexico lawyer. ABA Formal Opinion 316, entitled The Practice of Law Across State Lines, noted that an arrangement between lawyers of different states is not prohibited so long as the limitations of each lawyer with regard to the practice in each state is clearly represented to all clients and the public. The opinion further states:
Of course, only the individuals permitted by the laws of their respective states to practice law there would be permitted to do the acts defined by the state as the practice of law in that state, but there are no ethical barriers to carrying on the practice by such a firm in each state so long as the particular person admitted in that state is the person who, on behalf of the firm, vouched for the work of all of the others and, with the client and in the courts, did the legal acts defined by that state as the practice of law.
ABA Comm. on Professional Ethics and Grievances, Formal Op. 316 (1967).
Thus, as long as the lawyer admitted in New Mexico does the legal acts considered the practice of law in New Mexico, the consulting arrangement would not be a violation of ethics. (Informal Opinion No. 1355, Affiliation of Law Firms for MultiState Office Practice, March 29, 1976, refers back to Formal Opinion No. 316 cited herein. That is apparently the most recent ABA Opinion on this matter.)
In In the Matter of Bailey, 97 N.M. 88, 637 P.2d 38 (1981), an attorney was publicly censured for violations of the Canons of Ethics in that he aided a person not authorized to practice law in New Mexico to engage in practice in this state and further held that person out as his partner in his advertising. Apparently, the censured attorney encouraged the non-New Mexico attorney to actively conduct litigation in New Mexico. It does not appear that the advertising of availability to consult will be prohibited by this case; however, the New Mexico attorney must take care that he does not encourage the unauthorized practice of law in contravention of D.R. 3-101.
Finally, D.R. 1-107 requires full disclosure regarding the division of fees with another lawyer.