August 29, 2016

ABA urges 10th Circuit to uphold rule limiting U.S. grand jury subpoenas of New Mexico lawyers

CHICAGO, Aug. 29, 2016 — The American Bar Association filed an amicus brief Monday, asking the full 10th U.S. Circuit Court of Appeals to stop attempts by federal prosecutors in New Mexico to compel attorneys to testify in federal grand jury proceedings.

In filing its brief, the ABA is embracing the position of the Supreme Court of New Mexico and state disciplinary officials, who contend that federal law supports applying New Mexico rules of professional conduct to bar federal prosecutors from forcing attorneys to serve as witnesses against current or former clients. The U.S. Department of Justice claims it is immunized from following New Mexico’s Rule of Professional Conduct, which is identical to an ABA model rule that establishes guidelines for prosecutors issuing subpoenas to third-party lawyers in criminal cases.

In June by a 2-1 vote, a panel of the 10th Circuit ruled that there was a conflict between federal law and New Mexico’s rules in terms of grand jury practice and procedure, and the federal rule should prevail because of the preemption aspects of the U.S. Constitution’s Supremacy Clause.

But the ABA brief contends that the applicable federal statute does not suggest an exception for grand jury proceedings. Federal law “does not provide for exceptions, either in the grand jury context or otherwise, to its command that federal prosecutors and other federal government attorneys shall be subject to state laws and rules governing attorney conduct,” the ABA said in its brief. “Nor does it establish a balancing test under which federal prosecutors can excuse themselves from compliance with a state ethical rule based on asserted interference with a federal interest.”

The amicus brief in 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, is available here.

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