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May 31, 2017 Practice Points

Investigative Subpoenas Untethered to Court or Grand Subpoenas Result in Sanctions

Attorneys across the nation can learn from New Mexico's <i>Chavez.</i>

Ronald Hedges

“This opinion clarifies an issue of fundamental importance: it is unlawful for a court or an officer of the court to issue any subpoenas in the absence of a pending judicial action.” In the Matter of Chavez, Op. No. 2017-NMSC-012 (N.M. Feb. 6, 2017).

These New Mexico disciplinary proceedings were commenced against a deputy district attorney and his supervisor, a district attorney. “Over the course of two years, Chavez [the deputy] engaged in a pattern of issuing investigative subpoenas unconnected to court or grand jury proceedings.” His supervisor authorized some of these subpoenas but was unaware of most. The supervisor was “implicated primarily due to his supervisory capacity” over the deputy. A disciplinary board sought a formal reprimand against the supervisor and a more serious public censure against the deputy.

The two respondents argued to the New Mexico Supreme Court (which has authority to review attorney disciplinary recommendations) that they had made a “reasonable decision in issuing the subpoenas at issue because their research revealed no New Mexico authority disallowing the process.” Canvassing New Mexico and federal law, the court rejected this argument, as well as the respondents’ characterization of the subpoenas in issue being “pre-indictment.” Responding to the characterization, the court observed that the problem was not when the subpoenas were issued but, rather, that the subpoenas were not issued as part of an “authorizing proceeding.” The court held that the respondents violated New Mexico Rule of Professional Conduct 16-404(A) because their conduct “affected the rights of the subpoena recipients.” The court also held that the supervisor violated Rule 16-501(C) because he ratified issuance of the subpoenas “and his mistake as to the law does not protect him.” Although their conduct warranted suspension, the court recognized that the respondents had not acted in bad faith or with an intent to deceive and had cooperated fully in the disciplinary proceedings. The court ordered formal reprimands to be deferred for one year at the end of which, barring further misconduct, the reprimands would be withdrawn.

What lessons might be drawn from Chavez? First, the absence of authority to engage in some course of conduct does not “green light” that conduct. At the least, caution is necessary absent direct authority to do something. Second, supervisors are responsible for the conduct of those who are supervised. Third, as observed by the court, “sufficient training and oversight [should be maintained] to avoid the improper issuance of subpoenas in the future.” This last observation about training and supervision, while directed to New Mexico district attorneys and the facts before the court, hold true as a general proposition for every attorney across the nation.

Ronald Hedges is with Dentons in New York, New York.

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