N.M. R. Evid. 11-503
The lawyer of the client at the time of the communication may claim the privilege only on behalf of the client. Authority to claim the privilege is presumed absent evidence to the contrary.
N.M. R. Evid. 11-503
ANNOTATIONS The 2013 amendment, approved by Supreme Court Order No. 13-8300-025, effective December 31, 2013, clarified the language of the rule; in Paragraph A, at the beginning of the introductory sentence, deleted "As used in" and added "For purpose of"; in Subparagraph (1), after "public officer", deleted "or", after "association, or other", deleted "organization or", and after "or other entity", deleted "either public or private, who is rendered professional legal service by a lawyer, or who consults a lawyer or a representative of a lawyer with a view to obtaining professional legal services" and added the remainder of the sentence; deleted former Subparagraph (4), which defined a confidential communication as a communication not intended to be further disclosed except in furtherance of rendering legal services, and added current Subparagraph (4); in Paragraph B, deleted the former title "General rule of privilege" and added the current title, and in the introductory sentence, after "disclosing, a confidential", deleted "communication" and added "communications", and after "purpose of facilitating", deleted "the rendition of" and added "or providing"; in Subparagraph (1), after "client's lawyer or", deleted "his lawyer's"; in Subparagraph (3), after "by", added "between" and after "client's lawyer", deleted "to a" and added "and another"; in Paragraph C, in the introductory sentence, after "may be claimed by", deleted "the client, the client's guardian or conservator, the personal representative of a deceased client, or the successor, trustee or similar representative of a corporation, association or other organization whether or not in existence"; in Subparagraph (4), after "or other", deleted "organization" and added "entity"; in the last unnumbered paragraph in Paragraph C, after "The", deleted "person who was the", after "who was the lawyer", added "of the client", and after "may claim the privilege", deleted "but"; in the second sentence, deleted "The authority" and added "Authority", and after "privilege is presumed", deleted "in the absence of" and added "absent"; in Paragraph (D), Subparagraph (1), after "If the", added "professional legal", after "legal services", deleted "of the lawyer", after "enable or", deleted "aid" and added "assist", and after "assist anyone", deleted "to commit or plan to commit" and added "in committing or planning to commit"; and in Subparagraphs (2) through (5), at the beginning of the sentence, changed "As to a" to "For a". The 1995 amendment, effective January 1, 1995, added the last sentence in Paragraph A(4). The 1993 amendment, effective December 1, 1993, made gender neutral and related changes throughout the rule.
For statutory attorney-client privilege, see Section 38-6-6 NMSA 1978 and Rule 11-501 NMRA. Common interest doctrine applies to documents that meet the attorney-client privilege and that were created to further a common legal interest. S.F. Pacific Gold Corp. v. United Nuclear Corp., 2007-NMCA-133, 143 N.M. 215, 175 P.3d 309. Applicability of the attorney-client privilege, based on a claimed common interest. - In an underlying enforcement action under the New Mexico Inspection of Public Records Act, NMSA 1978, §§ 14-2-1 to -12, where plaintiffs made a combined seven written requests of the Albuquerque Public Schools (APS) to inspect documents referencing complaints or allegations of misconduct regarding the former superintendent of APS, the district court did not err in ordering the non-party appellant to answer plaintiffs' deposition questions, because appellant failed to meet her burden of establishing the essential elements necessary to prove the applicability of the attorney-client privilege, based on a claimed common interest, to her communications with APS attorneys. Albuquerque Journal v. Board of Educ., 2019-NMCA-012, cert. granted. Privilege belongs to client. - Any claim of this privilege would have to come from the client. State v. Armijo, 1994-NMCA-136, 118 N.M. 802, 887 P.2d 1269. Communications protected. - The attorney-client privilege does not extend to a client's grant of actual authority; the attorney could refuse to disclose only those communications made for the purpose of facilitating legal services and not intended to be disclosed to others. Diversified Dev. & Inv., Inc. v. Heil, 1995-NMSC-005, 119 N.M. 290, 889 P.2d 1212. Defendant objecting to discovery of doctor's report prepared for defendant's counsel under court order has burden of establishing existence of lawyer-client privilege. State v. Gallegos, 1978-NMCA-114, 92 N.M. 370, 588 P.2d 1045, cert. denied, 92 N.M. 353, 588 P.2d 554. Presence of another attorney will not destroy confidential nature of communication, and this is especially true when both attorneys, as in this case, are considered to be representing the client. State v. Valdez, 1980-NMSC-098, 95 N.M. 70, 618 P.2d 1234. Testimony of informant's former attorney inadmissible. - The testimony of an informant's former attorney offered for the purpose of impeaching the informant's reputation for truthfulness violates the attorney-client privilege and is inadmissible under the Rules of Evidence. State v. Hinojos, 1980-NMCA-079, 95 N.M. 659, 625 P.2d 588. Waiver of privilege. - Waiver of the attorney-client privilege is governed exclusively by Rule 11-511 NMRA and its restriction to waiver by voluntary disclosure; thus, offensive or direct use of privileged materials is required before the party will be deemed to have waived its attorney-client privileges. Public Serv. Co. of N.M. v. Lyons, 2000-NMCA-077, 129 N.M. 487, 10 P.3d 166. Witness waives attorney-client privilege by voluntary disclosure of discussion of "turning state's evidence". - A witness opens up the area of attorney-client communications regarding the subject matter of granting immunity in exchange for favorable prosecution testimony by a voluntary disclosure of a discussion of "turning state's evidence." The trial court cannot then refuse to allow the witness to be questioned on this matter, or refuse to permit the defense to subpoena the witness' lawyer, on the alleged grounds of attorney-client privilege. State v. Ballinger, 1983-NMCA-034, 99 N.M. 707, 663 P.2d 366, rev'd on other grounds, 1984-NMSC-003, 100 N.M. 583, 673 P.2d 1316. Confession made by potential defense witness to defense attorney held privileged. - Federal court did not err in declining to overrule New Mexico supreme court ruling that confession made by potential defense witness to defense attorney was privileged where, although defense attorney did not actually represent the witness, defense attorney was, in effect, the witness' "attorney" because witness was being represented by member of defense attorney's public defender staff in another proceeding. Valdez v. Winans, 738 F.2d 1087 (10th Cir. 1984). Settlement agreements entered into between parties are outside the attorney-client privilege. Board of Comm'rs v. Las Cruces Sun-News, 2003-NMCA-102, 134 N.M. 281, 76 P.3d 36. Claims of ineffective assistance of counsel. - A habeas corpus petitioner's claim of ineffective assistance of counsel removes from the protection of the attorney-client privilege those communications specifically relevant to the claim. A petitioner asserting the attorney-client privilege bears the burden of demonstrating that the privilege applies. It is then the judges' function to make evidentiary rulings determining whether attorney-client communications are relevant to the specific ineffective assistance of counsel claims raised by the petitioner and thereby subject to the exception in Subparagraph 3 of Paragraph D of Rule 11-503 NMRA. Allen v. LeMaster, 2012-NMSC-001, 267 P.3d 806. Where defendant filed a petition for habeas corpus alleging ineffective assistance of counsel, any communications between defendant and trial counsel that were relevant to defendant's specific ineffectiveness claims were excepted from the attorney-client privilege, and those that were not relevant were neither excepted nor waived, because defendant filed a petition for writ of habeas corpus. Allen v. LeMaster, 2012-NMSC-001, 267 P.3d 806. Memorandum of talking points was not privileged. - Where plaintiff and plaintiff's spouse were doctors at defendants' hospital; at a meeting to terminate plaintiff's spouse, plaintiff was told that plaintiff's spouse would be allowed to resign if plaintiff also resigned, otherwise, plaintiff's spouse would be terminated for cause; plaintiff was not the subject of any personnel action by the hospital; prior to the meeting, the hospital's general counsel, who was also a senior vice president, prepared a memorandum concerning the process of termination which was essentially a script for forcing plaintiff to resign; and the memorandum stated that it was confidential and subject to the attorney-client privilege, the memorandum was business advice and not privileged. Bhandari v. Artesia Gen. Hosp., 2014 -NMCA-018, cert. denied, 2014-NMCERT-001. Law reviews. - For article, "Evidence," see 12 N.M.L. Rev. 379 (1982). For note, "Corporate Law - Formulating and Applying a 'Proper Purpose' Analysis to a Books and Records Inspection Request - Schein v. Northern Rio Arriba Electric Cooperative, Inc.," see 28 N.M.L. Rev. 133 (1998). Am. Jur. 2d, A.L.R. and C.J.S. references. - 81 Am. Jur. 2d Witnesses § 337 et seq. Privilege of communication to attorney as affected by termination of employment, 5 A.L.R. 728. Privilege of communication to attorney by client in attempt to establish false claim, 5 A.L.R. 977, 9 A.L.R. 1081. Privileges as to communications to attorney in connection with drawing of will, 64 A.L.R. 184, 66 A.L.R.2d 1302, 75 A.L.R.4th 1144. Attorney-client privilege as affected by wrongful or criminal character of contemplated acts or course of conduct, 125 A.L.R. 508. Physician-patient, attorney-client or priest-penitent privilege as applicable in nonjudicial proceeding or investigation, 133 A.L.R. 732. Attorney-client privilege as applicable to communications between attorney and client's agent, employee, spouse or relative, 139 A.L.R. 1250. Attorney-client privilege as applied to communications in presence of two or more persons interested in the subject matter to which the communications relate, 141 A.L.R. 553. Admissibility of evidence of unperformed compromise agreement, 26 A.L.R.2d 858. Waiver by party: of privilege as to communications with counsel by taking stand and testifying, 51 A.L.R.2d 521. Privilege as to communications to attorney in connection with drawing of will, 66 A.L.R.2d 1302, 75 A.L.R.4th 1144. Waiver of attorney-client privilege by personal representative or heir of deceased client or by guardian of incompetent, 67 A.L.R.2d 1268. Corporation's right to assert attorney-client privilege, 98 A.L.R.2d 241, 26 A.L.R.5th 628, 27 A.L.R.5th 76. Applicability of attorney-client privilege to communications with respect to contemplated tortious acts, 2 A.L.R.3d 861. Attorney-client privilege as affected by communications between several attorneys, 9 A.L.R.3d 1420. Attorney-client privilege as affected by its assertion as to communications, or transmission of evidence, relating to crime already committed, 16 A.L.R.3d 1029. Disclosure of name, identity, address, occupation or business of client as violation of attorney-client privilege, 16 A.L.R.3d 1047. Power of trustee in bankruptcy to waive privilege of communications available to bankrupt, 31 A.L.R.3d 557. Censorship of convicted prisoners' "legal" mail, 47 A.L.R.3d 1150. Censorship and evidentiary use of unconvicted prisoners' mail, 52 A.L.R.3d 548. Defense attorney as witness for his client in criminal case, 52 A.L.R.3d 887. Applicability of attorney-client privilege to communications relating to drafting of documents, 55 A.L.R.3d 1322. Admissibility of defense communications made in connection with plea bargaining, 59 A.L.R.3d 441. Rights and duties of attorney in a criminal prosecution where client informs him of intention to present perjured testimony, 64 A.L.R.3d 385. Failure to communicate with client as basis for disciplinary action against attorney, 80 A.L.R.3d 1240. Applicability of attorney-client privilege to communications made in presence of or solely to or by third person, 14 A.L.R.4th 594. Attorney-client privilege as extending to communications relating to contemplated civil fraud, 31 A.L.R.4th 458. Privilege as to communications between lay representative in judicial or administrative proceedings and client, 31 A.L.R.4th 1226. Insured-insurer communications as privileged, 55 A.L.R.4th 336. Who is "representative of the client" within state statute or rule privileging communications between an attorney and the representative of the client, 66 A.L.R.4th 1227. Involuntary disclosure or surrender of will prior to testator's death, 75 A.L.R.4th 1144. Determination of whether a communication is from a corporate client for purposes of the attorney-client privilege - modern cases, 26 A.L.R.5th 628. What corporate communications are entitled to attorney-client privilege - modern cases, 27 A.L.R.5th 76. What persons or entities may assert or waive corporation's attorney-client privilege -modern cases, 28 A.L.R.5th 1. Attorney's disclosure, in federal proceedings, of identity of client as violating attorney-client privilege, 84 A.L.R. Fed. 852. 97 C.J.S. Witnesses §§ 16, 254, 276 to 292, 303.