A grand jury court room in Santa Clara County...
A grand jury court room in Santa Clara County (Photo: Jason Doiy)

Federal prosecutors who subpoena lawyers to testify before grand juries no longer will face the threat of ­disciplinary action in New Mexico.

U.S. District Judge William Johnson ruled on Feb. 3 that an attorney ethics rule adopted by the New Mexico Supreme Court ran afoul of the federal law that governs grand jury proceedings, which are held in secret.

The ethics rule “threaten[s] to compromise the indispensable secrecy of grand jury proceedings,” Johnson wrote.

He explained that 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.

More than half of the states had some variation of the provision in place as of 2010, according to the most recent American Bar Association survey. It’s a rare attorney ethics rule aimed specifically at prosecutors, said Michael Frisch, ethics counsel to Georgetown University Law Center and a former senior assistant bar counsel in Washington.

“A lot of places are just of the view that it’s not an appropriate exercise of ethical rulemaking authority,” he said. Frisch pointed to previous decisions by federal appellate courts that struck down similar rules.

In New Mexico, federal prosecutors will still have to follow the rule in nongrand jury criminal proceedings, however, based on an earlier decision by the U.S. Court of Appeals for the Tenth Circuit.

The rule bars prosecutors from subpoenaing lawyers to provide information about past or present clients in criminal proceedings, including grand juries, with three exceptions: if the prosecutor “reasonably” believes the information isn’t protected by privilege; the information was “essential” to a successful investigation or prosecution; or the information couldn’t be obtained any other way. A subpoenaed attorney can file an ethics complaint with the state disciplinary board if the lawyer believes a prosecutor violated the rule.

The New Mexico Supreme Court adopted the rule in 2008 over objections by the U.S. attorney’s office in New Mexico and state prosecutors. The U.S. Department of Justice in April 2013 sued the New Mexico Supreme Court and the state’s attorney disciplinary board, arguing that 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 the contested rule, according to the complaint. Still, the Justice Department said federal government lawyers licensed in New Mexico could still face disciplinary action, regardless of where they practiced.

According to the Justice Department, approximately 80 assistant U.S. attorneys practice in New Mexico, in addition to other department lawyers licensed in the state but practicing elsewhere.


Since 1990, the department said, it has authorized the U.S. attorney’s office in New Mexico to serve approximately 61 federal subpoenas on lawyers or individuals working for lawyers. Not all were served, however. Lisa Olson, senior trial counsel in the department’s Civil Division, wrote in court papers that prosecutors in New Mexico had “changed their practices” for fear of violating the rule.

“These situations demonstrate that well-meaning prosecutors using legal means of obtaining evidence of criminality sit under an ethical sword of Damocles because they can be disciplined for simply performing their duties,” she wrote.

The state Supreme Court and disciplinary board’s attorney, Paul Kennedy of Paul Kennedy & Associates in Albuquer­que, countered in court filings that not applying the rule to federal prosecutors would give the Justice Department leeway to challenge other state ethics rules that in some way affected how prosecutors do their job.

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 the Justice Department to ask the Tenth Circuit to revisit the issue.

However, Johnson said, the Colorado decision wasn’t binding with respect to grand jury proceedings. The judge said he was “persuaded” by previous decisions by the First, Second and Third circuits striking down similar rules in other states.

The New Mexico rule interfered with “strong governmental interests in grand jury proceedings,” Johnson wrote, including giving grand juries “wide latitude” during their investigations, avoiding “minitrials” on minor issues and preserving secrecy.

The judge contrasted the New Mexico rule with one adopted in Rhode Island requiring prosecutors to seek a judge’s approval before subpoenaing attorneys to provide information about past or present clients in grand jury proceedings. The First Circuit upheld the Rhode Island rule in 1995.

“Forcing a prosecutor to reveal details about grand jury practice to an outside agency is arguably a more severe violation of grand jury secrecy than making a preliminary showing to a judge,” Johnson wrote.

Kennedy referred a request for comment to the court. Joey Moya, clerk of court and chief counsel for the New Mexico Supreme Court, declined to comment.

A spokeswoman for the Justice Department did not return a request for comment.

Contact Zoe Tillman at ztillman@alm.com.