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ABA urges U.S. appeals court to require federal prosecutors to comply with state ethical rules


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ABA urges U.S. appeals court to require federal prosecutors to comply with state ethical rules

By John Glynn

CHICAGO, June 4, 2014 — The American Bar Association filed an amicus brief today asking the 10th U.S. Circuit Court of Appeals to find that a New Mexico ethical rule applies to federal prosecutors when they issue grand jury subpoenas in that state to attorneys for testimony about their past or present clients.

The ABA brief was filed in support of the state parties in the case, United States of America v. Supreme Court of New Mexico, the Disciplinary Board of New Mexico, and the Office of the Disciplinary Counsel of New Mexico. It asserts that the U.S. District Court in New Mexico erred in finding that Rule 16–308(E) of the New Mexico Rules of Professional Conduct does not apply to federal prosecutors practicing in New Mexico because it conflicts with federal grand jury practices. The brief asserts that, instead, the court should have applied a federal law, 28 U.S.C. § 530B (the “McDade Amendment”), which requires that federal prosecutors practicing in a state “shall be subject to state laws and rules, and local federal court rules ... to the same extent and in the same manner as other attorneys in that State.”

The New Mexico rule, which is identical to Rule 3.8(e) of the ABA Model Rules of Professional Conduct, imposes limits on when a prosecutor may ethically subpoena a lawyer to give testimony in a grand jury or other criminal proceeding about a past or present client. A total of 31 states, including New Mexico, have enacted a similar ethical rule.

The brief asserts that both the history leading to the ABA adopting Model Rule 3.8(e) and the text, history and legislative record of the McDade Amendment support the conclusion that in 1998, Congress rejected the Justice Department’s position that a state’s ethical rules should not apply fully to federal prosecutors practicing in that state.

The ABA's amicus brief is available online here.

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