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A D.C. federal appeals panel has thwarted the Justice Department’s six-year battle to shield federal prosecutors from the scrutiny of state bar authorities. In an opinion penned by Judge James Buckley, the U.S. Court of Appeals for the D.C. Circuit rendered a narrowly tailored decision in United States v. Ferrara, rejecting the Justice Department’s argument that the New Mexico state bar has no right to investigate Assistant U.S. Attorney G. Paul Howes for alleged ethical violations. Buckley’s May 19 opinion focuses only on jurisdictional issues and avoids addressing the broader one raised by the Justice Department–that the Constitution’s supremacy clause prohibits state bars from disciplining federal prosecutors when they follow federal regulations that conflict with state ethics rules. But the decision effectively foils what has been an intensive push by Justice to free federal prosecutors from the whipping posts of state bar authorities. Buckley and fellow D.C. Circuit Judges Laurence Silberman and David Sentelle concluded that Virginia Ferrara, chief counsel for the Disciplinary Board of the Supreme Court of New Mexico, is entitled to probe alleged transgressions by Howes, who is licensed by New Mexico. Howes has been accused of breaking the state bar’s ethics rules by speaking with a murder suspect without first clearing that contact with the suspect’s lawyer. “Given her responsibilities as the Board’s Chief Counsel, Ms. Ferrara had an obligation to the State and to other members of the New Mexico Bar to uphold its standards by investigating charges of professional misconduct committed by a member, wherever the misconduct might occur,” Buckley wrote. TRUMP CARD Other courts, including the 9th Circuit, have rejected the Justice Department’s argument that under the department’s own rules, federal prosecutors have leeway in talking to represented parties in criminal cases. But the D.C. Circuit case has been closely watched because it marks the first time that a federal appeals court was asked to deal squarely with the question of whether a state bar has the right to discipline a federal prosecutor who, in following department policy, may have broken state bar rules. Longtime critics of the Justice Department’s position hail the decision as a clear signal that federal prosecutors can no longer argue that they should be the only attorneys in the nation exempt from state ethics rules. “There is no joy here for the government,” says William Taylor III, a partner at D.C.’s Zuckerman, Spaeder, Goldstein, Taylor & Kolker and one of the pro bono lawyers for Ferrara. “There is no ray of hope here that the court is going to be solicitous when a federal prosecutor gets in trouble with a state bar.” But Associate Deputy Attorney General Seth Waxman says that federal prosecutors must be protected from state bar sanctions when they are following lawfully promulgated federal regulations that may conflict with local rules. “The regulations trump [conflicting state rules], and they trump them because of the supremacy clause,” says Waxman. He adds that the department has not yet decided whether to ask for a rehearing en banc, appeal the panel’s ruling to the Supreme Court, or let the decision stand unchallenged. “A federal prosecutor following the attorney general’s regulations cannot be disciplined by a state bar,” Waxman insists. The issue clearly is a sensitive one for the Justice Department. A recent opinion piece in The Washington Post blasting the department’s position on the question of who should have the power to oversee federal prosecutors prompted a response from Deputy Attorney General Jamie Gorelick. Gorelick argued that when state and federal rules conflict, “it makes complete sense for the attorney general to have the authority to issue regulations governing the nationwide conduct of lawyers employed by the Department of Justice in carrying out their federal law enforcement responsibilities.” Howes, who announced prior to the ruling that he is leaving his prosecutorial post in the District at the end of June to go into private practice in San Diego, declines comment, referring calls to Kevin Ohlson, spokesman for the U.S. attorney’s office here. Ohlson declines comment. TAKING THE CALL The controversy dates back to 1988, when Howes, an aggressive veteran homicide prosecutor, had an ex parte conversation with Darryl Smith, who was then a murder suspect in a D.C. case being prosecuted by Howes. While Howes acknowledges speaking with Smith, the prosecutor insisted in court proceedings that Smith initiated all contacts with him and with the D.C. police detective who was working on the case. Most state bars, including New Mexico’s, prohibit prosecutors from making contact with suspects in criminal cases who have a lawyer–as Smith did. So it was not surprising that Smith’s lawyer, Jamie Gardner of the D.C. Public Defender Service, objected to the contact and brought the matter to the attention of then Superior Court Judge Gladys Kessler, who was presiding over the case. When questioned about his contact with Smith, Howes said that he had not initiated any conversation with Smith, but that if Smith “wants to call us, we will take the call.” Gardner asked Judge Kessler either to dismiss the indictment against Smith or to suppress any information that the government had garnered from the ex parte conversations. Kessler declined, but concluded that Howes had breached bar ethics rules by speaking with Smith. Kessler referred Howes to the D.C. Office of the Bar Counsel for investigation. The matter was complicated by the fact that, although Howes was working exclusively in D.C. local and federal courts, he held a New Mexico law license. The disciplinary inquiry was therefore referred to the Disciplinary Board of the Supreme Court of New Mexico, which handles all ethics investigations of lawyers licensed by the state. GETTING TO NO But just after the matter was transferred west, the Justice Department stepped in, arguing that the state had no right to investigate a federal prosecutor on this issue. Justice claimed that Howes’ actions were permissible, citing a 1989 memorandum from then Attorney General Richard Thornburgh that explicitly gave federal prosecutors the green light to contact suspects in criminal cases without their lawyers’ consent. The major points of that memo were codified as federal regulations under Attorney General Janet Reno. The department successfully petitioned to have the matter removed to the U.S. District Court for New Mexico, where Senior Judge Juan Burciaga was assigned the case. In a stinging 1992 decision, Burciaga rejected Justice’s position, which was premised on the supremacy clause and the Thornburgh memo. Burciaga sent the matter back to the disciplinary board after finding that he lacked the authority to block Ferrara’s investigation of Howes. But Justice’s battle was far from over. In late 1992, the department, on Howes’ behalf, sued Ferrara in U.S. District Court here and asked Judge Norma Holloway Johnson to bar New Mexico from proceeding with its investigation of the D.C. prosecutor. Again, Justice found itself on the losing end of a federal judge’s decision. In May 1993, Johnson ruled that she, too, lacked jurisdiction to prevent the state from looking into the behaviour of one of its licensees. Even if she did have the authority to determine the question, Johnson concluded, the supremacy clause does not exempt federal prosecutors from state ethics regulations. The department, led by Douglas Letter, an appellate litigation counsel in the Civil Division, appealed Johnson’s decision, only to be rejected by the D.C. Circuit’s unanimous May 19 ruling. NEW MEXICO MATTER Judge Buckley and his colleagues seemed to take pains to avoid the Justice Department’s far-reaching argument that the supremacy clause allows only the executive branch to discipline federal prosecutors when state and federal rules conflict. The judges instead ruled on the narrowest issue presented in the case: whether Judge Johnson had jurisdiction to prevent the New Mexico state bar from investigating Howes. The panel, in affirming Johnson, concluded that there had not been enough activity in the District to justify having a D.C.-based federal judge claim jurisdiction over the case. The panel also noted that Howes’ decision to accept a license from New Mexico predated his decision to practice law and use that license in the District. “Ms. Ferrara’s purpose in initiating proceedings against [Howes] was to uphold the ethical standards of the New Mexico Bar, not to set standards for or direct the behavior of prosecutors in the District of Columbia,” Buckley wrote. “[H]er actions were not ‘expressly aim[ed]‘ at [the District], and their effects on the District of Columbia were, at most, incidental.” But Waxman, the Justice Department official, says he finds the court’s reasoning “somewhat illogical.” “[Howes] is practicing law here, and the conduct of which [Ferrara] complains was here,” says Waxman. “It seems to me odd to say that doesn’t satisfy minimum contact.” Jurisdictional issues aside, the circuit’s decision to affirm the lower court means that Ferrara and the New Mexico disciplinary board may now proceed with an investigation that was initiated more than six years ago and has spanned the administrations of three attorneys general. “Finally, after years of delay and procedural evasiveness, someone is going to get to evaluate [Howes'] conduct,” says Norman Eisen, a Zuckerman, Spaeder associate who worked on the case on Ferrara’s behalf. “Hopefully, this will get the message across that these kinds of evasive efforts to avoid ethics supervision of AUSAs by state bars will get the cold shoulder from the judiciary.”

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