Rule 16-403 Communications with unrepresented persons.

Committee commentary. —

[1] An unrepresented person, particularly one not experienced in dealing with legal matters, might assume that a lawyer is disinterested in loyalties or is a disinterested authority on the law even when the lawyer represents a client. In order to avoid a misunderstanding, a lawyer will typically need to identify the lawyer’s client and, where necessary, explain that the client has interests opposed to those of the unrepresented person. For misunderstandings that sometimes arise when a lawyer for an organization deals with an unrepresented constituent, see Rule 16-113(F) NMRA.

[2] The rule distinguishes between situations involving unrepresented persons whose interests may be adverse to those of the lawyer’s client and those in which the person’s interests are not in conflict with those of the client. In the former situation, the possibility that the lawyer will compromise the unrepresented person’s interests is so great that the rule prohibits the giving of any advice, apart from the advice to obtain counsel. Whether a lawyer is giving impermissible advice may depend on the experience and sophistication of the unrepresented person, as well as the setting in which the behavior and comments occur. This rule does not prohibit a lawyer from negotiating the terms of a transaction or settling a dispute with an unrepresented person. So long as the lawyer has explained that the lawyer represents an adverse party and is not representing the person, the lawyer may inform the person of the terms on which the lawyer’s client will enter into an agreement or settle a matter, prepare documents that require the person’s signature, and explain the lawyer’s own view of the meaning of the document or the lawyer’s view of the underlying legal obligations.

[3] The provisions of Rule 16-403 NMRA apply in the social media context. With the client’s consent, a lawyer or a lawyer’s nonlawyer assistant may request permission to view the restricted portions of an unrepresented person’s social media, website, or profile, provided that the lawyer or the nonlawyer assistant (1) uses a full name, (2) provides status as a lawyer or a nonlawyer assistant, and (3) discloses the name of the client and the matter. A lawyer or a nonlawyer assistant must not use deception or misrepresentation to gain access to information about the unrepresented person that would otherwise be unavailable. Special caution must be used when a lawyer represents a client who is adverse to an unrepresented party. If the unrepresented person asks for additional information from the lawyer or the nonlawyer assistant in response to the request that seeks permission to view the social media profile, the lawyer must accurately provide the information requested by the person or withdraw the viewing request.

[4] This rule is not intended to restrict law enforcement efforts by government lawyers that are consistent with constitutional requirements and applicable federal or state law.