NM Bar Legal Ethics and Professional Responsibility 3 — Questions and Answers
Question 1: A New Mexico lawyer is hired on a contingent fee basis for a divorce matter. This arrangement is:
- Permissible if the fee percentage is disclosed in writing
- Permissible if the client gives informed consent
- Prohibited because contingent fees in domestic relations cases are unethical (Correct answer)
- Prohibited only if children are involved
Correct answer: Prohibited because contingent fees in domestic relations cases are unethical
Rule 1.5(d) expressly prohibits contingent fee arrangements in domestic relations matters where the fee is contingent upon securing a divorce or the amount of alimony or property settlement.
Question 2: A lawyer is contacted by a prospective client for a consultation but ultimately declines representation. The lawyer:
- Has no obligations to the prospective client
- May not use or reveal information learned during the consultation against the prospective client (Correct answer)
- Must refer the prospective client to another attorney
- Must return any documents the prospective client provided
Correct answer: May not use or reveal information learned during the consultation against the prospective client
Rule 1.18 protects prospective clients — a lawyer who receives information from a prospective client may not use or disclose that information to the person's detriment.
Question 3: Attorney Maria communicates directly with an opposing party she knows is represented by counsel, without that counsel's consent. This violates:
- Rule 4.1 – Truthfulness in Statements to Others
- Rule 4.2 – Communication with Person Represented by Counsel (Correct answer)
- Rule 3.4 – Fairness to Opposing Party
- Rule 8.4 – Misconduct
Correct answer: Rule 4.2 – Communication with Person Represented by Counsel
Rule 4.2 prohibits a lawyer from communicating about the subject of representation with a person the lawyer knows is represented by another lawyer, without that lawyer's consent.
Question 4: A supervising partner knows that an associate under their supervision has committed an ethical violation but takes no corrective action. The partner:
- Bears no responsibility because only the associate acted
- May be subject to discipline for failing to take remedial action (Correct answer)
- Is responsible only if the associate's act caused actual harm
- Must report the associate to the bar association immediately
Correct answer: May be subject to discipline for failing to take remedial action
Rule 5.1 holds supervisory lawyers responsible when they know of a subordinate's violation and fail to take reasonable remedial action.
Question 5: A New Mexico attorney is also a licensed real estate broker and wants to represent both the buyer and seller in a real estate transaction involving legal services. This requires:
- Disclosure only to the buyer
- Written consent from both parties after full disclosure of the dual role conflict (Correct answer)
- Approval from the New Mexico Real Estate Commission
- No special steps if the attorney is licensed in both fields
Correct answer: Written consent from both parties after full disclosure of the dual role conflict
Representing adverse parties creates a concurrent conflict under Rule 1.7, requiring informed written consent from each client after full disclosure.
Question 6: Attorney Leo is approached by a journalist asking about a pending case. Leo may properly comment to the media:
- On any matter that is part of the public record
- Only through a written press release approved by the court
- On information that will not have a substantial likelihood of materially prejudicing the proceeding (Correct answer)
- On nothing until the case is resolved
Correct answer: On information that will not have a substantial likelihood of materially prejudicing the proceeding
Rule 3.6 permits trial publicity statements only if they will not have a substantial likelihood of materially prejudicing the adjudicative proceeding.
Question 7: A New Mexico attorney knowingly makes a false statement of material fact to a third party on behalf of a client. This violates:
- Rule 3.3 – Candor toward the Tribunal
- Rule 4.1 – Truthfulness in Statements to Others (Correct answer)
- Rule 1.6 – Confidentiality
- Rule 1.2 – Scope of Representation
Correct answer: Rule 4.1 – Truthfulness in Statements to Others
Rule 4.1 prohibits a lawyer from knowingly making false statements of material fact or law to third parties in the course of representing a client.
NM Bar Legal Ethics and Professional Responsibility 3
A New Mexico lawyer is hired on a contingent fee basis for a divorce matter.
This arrangement is: