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 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 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 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 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…
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 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…
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…
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,…
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 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…
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 …
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…
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…
Can a lawyer who won a damages judgment against a man for one client take on that man's wife as a client in her divorce, where both are pursuing the husband's property?
The opinion concluded that whether a conflict existed turned on whether the judgment against the husband was a community or separate debt, and that even a possible conflict did not automatically precl…
Can attorneys who regularly practice before a state agency also serve under contract as the agency's part-time hearing officers?
The opinion concluded the proposal created an appearance of impropriety, because attorneys who both advocate before and adjudicate in the same forum create an unavoidable impression of potential influ…
In settling a case, can a plaintiff's lawyer agree to keep the terms secret, hand over and seal her entire file, and promise never to take other cases against the same defendants?
The opinion concluded the lawyer could agree to keep the settlement terms confidential (a client secret) and that whether to surrender and seal the file was the client's decision since the file is the…
In a federal civil rights case, may a defendant offer and a plaintiff accept a single lump-sum settlement that bundles damages, costs, and the plaintiff's statutory attorney's fees?
The opinion concluded that in cases involving only damages it is not ethically improper for a defendant to offer, or a plaintiff to accept, a lump-sum settlement covering damages, costs, and attorney'…
Can a lawyer represent an employer both in a tort suit (where the injured employee is an involuntary counterclaimant) and in defending against that same employee's workers' compensation claim?
The opinion concluded that no conflict presently existed and that neither the Code nor the Model Rules required the lawyer to withdraw from representing the employer in either suit, but cautioned that…
Can a lawyer hired by an insurer to defend an insured withdraw from that defense and then bring a coverage suit against the insured on a related matter?
The opinion concluded the proposed conduct gave rise to at least the appearance of a conflict of interest under Rules 5-105 and 5-107(B), even though the lawyer had no actual contact with or confident…
Can a lawyer who drafted and mediated agreements between two parties later represent one of them in arbitration against the other over the same project?
The opinion concluded that the lawyer had to withdraw: if the general contractor was a current client, an undivided duty of loyalty required it; and if a former client, the substantial-relationship te…
Can a public agency hire a lawyer whose spouse works at a law firm that represents a business the agency regulates?
The opinion concluded that the Code did not bar a regulatory commission from hiring a lawyer whose spouse's firm represented a regulated utility, with qualifications, because the better rule rejected …
Can a lawyer in a firm represent a client against someone the firm's other lawyer represented, when that person refuses to consent?
The opinion concluded that if the adverse party was still a current client of the firm when the new matter was first discussed, the lawyer had to decline because the firm owed an absolute duty of loya…
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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.