NM Bar NM Bar Quality & Compliance 3 — Questions and Answers
Question 1: Under the New Mexico Rules of Professional Conduct, when a lawyer represents an organization, the client is:
- The officers and directors of the organization collectively
- The organization acting through its authorized constituents (Correct answer)
- The shareholders or members who have the greatest financial interest
- The general counsel who retained the outside lawyer
Correct answer: The organization acting through its authorized constituents
Rule 1.13(a) provides that a lawyer employed by an organization represents the organization acting through its duly authorized constituents.
Question 2: A New Mexico attorney receives a subpoena for documents that belong to the client and are covered by attorney-client privilege. The attorney should:
- Produce the documents to avoid contempt sanctions
- Notify the client and assert the privilege on the client's behalf unless instructed otherwise (Correct answer)
- Destroy the documents to protect the client
- Seek a protective order without informing the client
Correct answer: Notify the client and assert the privilege on the client's behalf unless instructed otherwise
The attorney must promptly notify the client and assert the privilege unless the client waives it, since the privilege belongs to the client.
Question 3: Under Rule 1.15 of the NMRPC, when a lawyer receives funds that both the lawyer and client claim, the lawyer must:
- Hold all disputed funds in the trust account until the dispute is resolved
- Distribute the undisputed portion to the client and hold the disputed portion in trust (Correct answer)
- File an interpleader action immediately
- Pay the disputed funds to the client pending resolution
Correct answer: Distribute the undisputed portion to the client and hold the disputed portion in trust
Rule 1.15(e) requires the lawyer to promptly distribute the undisputed portion and keep the disputed funds in trust until the dispute is resolved.
Question 4: Under NMRPC Rule 3.3, a lawyer who has offered material evidence and later discovers it is false must:
- Do nothing if the proceeding has concluded
- Take reasonable remedial measures including, if necessary, disclosure to the tribunal (Correct answer)
- Simply withdraw from the case without further action
- Notify opposing counsel but not the tribunal
Correct answer: Take reasonable remedial measures including, if necessary, disclosure to the tribunal
Rule 3.3(a)(3) requires a lawyer to take reasonable remedial measures, including disclosure to the tribunal, upon discovering that material evidence offered was false.
Question 5: Under New Mexico's disciplinary rules, which body has primary responsibility for investigating complaints of attorney misconduct?
- The New Mexico Supreme Court directly
- The Disciplinary Board of the New Mexico Supreme Court (Correct answer)
- The New Mexico State Bar Board of Bar Commissioners
- The New Mexico Court of Appeals
Correct answer: The Disciplinary Board of the New Mexico Supreme Court
The Disciplinary Board of the New Mexico Supreme Court receives, investigates, and prosecutes complaints against New Mexico attorneys.
Question 6: A New Mexico attorney's client confesses during representation that he intends to commit perjury at trial. The attorney's FIRST required step is to:
- Withdraw from representation without any further communication
- Counsel the client against the perjury and explain the consequences (Correct answer)
- Immediately disclose the planned perjury to the court
- Move for a mistrial to prevent the perjury
Correct answer: Counsel the client against the perjury and explain the consequences
Rule 3.3 Comments indicate that before taking any remedial action, the lawyer must remonstrate with the client and attempt to dissuade the client from the intended perjury.
Question 7: Under the New Mexico Rules of Professional Conduct, a non-refundable retainer fee is:
- Always permissible as long as it is disclosed in writing
- Impermissible under all circumstances
- Permissible only if it qualifies as a true retainer for availability rather than for services (Correct answer)
- Permissible only for criminal defense matters
Correct answer: Permissible only if it qualifies as a true retainer for availability rather than for services
A true retainer paid solely to secure the lawyer's availability is permissible, but fees designated non-refundable as advance payment for services violate Rule 1.16 if unearned portions are not returned.
NM Bar NM Bar Quality & Compliance 3
Under the New Mexico Rules of Professional Conduct, when a lawyer represents an organization, the client is: