Judge Strikes Rule Restricting Subpoenas Against Lawyers

, The National Law Journal

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A federal judge in New Mexico has struck down a state attorney ethics rule restricting federal prosecutors from subpoenaing lawyers to testify about past or existing clients in grand jury proceedings.

U.S. District Judge William Johnson, in a Feb. 3 opinion, found that the rule ran afoul of federal law governing grand jury proceedings, which are held in secret.

The rule "threaten[s] to compromise the indispensable secrecy of grand jury proceedings," Johnson said. If a subpoenaed lawyer filed an ethics complaint against a prosecutor—the only recourse for an alleged violation of the rule—the prosecutor would be forced to disclose information about the sealed proceedings, he added.

Federal prosecutors will still have to follow the rule in nongrand jury criminal proceedings, however, per a previous decision by the U.S. Court of Appeals for the Tenth Circuit, he said.

The New Mexico Supreme Court adopted the rule in 2008 over objections from the U.S. attorney’s office in New Mexico and state prosecutors. It barred prosecutors from subpoenaing attorneys to provide information about past or present clients with three exceptions: if the prosecutor "reasonably" believed the information wasn't protected by privilege; if the information was "essential" to a successful investigation or prosecution; or the material couldn’t be obtained any other way.

A subpoenaed attorney could file an ethics complaint with the state disciplinary board if the lawyer believed a prosecutor violated the rule.

The U.S. Department of Justice sued the New Mexico Supreme Court and the state’s attorney disciplinary board in April 2013, arguing the rule violated federal law by imposing restrictions on criminal proceedings that were "more rigorous" than the federal standards.

New Mexico’s state ethics rules apply to lawyers practicing in federal court, but the judges of the U.S. District Court for New Mexico decided in 2010 that they would not enforce this rule, according to the complaint. Still, the Justice Department said the rule still could be applied to federal government lawyers licensed in New Mexico, regardless of where they practiced.

Johnson concluded that when it came to nongrand jury criminal proceedings, he was bound by a 1999 decision by Tenth Circuit upholding a nearly identical ethics rule in Colorado.

The judge wrote in a footnote that he "sympathizes" with the Justice Department's challenge to the merits of the Tenth Circuit's decision in the Colorado case, but lacked authority to overrule the appeals court. He encouraged lawyers for the federal government to ask the Tenth Circuit to revisit the issue en banc.

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