In-House Bar Urges Supreme Court To Apply State Ethical Standards To Federal Prosecutors

June 2, 2017

Capital Appellate Advocacy founder Lawrence S. Ebner has filed an amicus curiae brief on behalf of the Association of Corporate Counsel urging the Supreme Court to overturn a Tenth Circuit ruling holding that a New Mexico professional conduct rule does not apply to federal prosecutors who subpoena lawyers to provide grand jury testimony about current and former clients.  The amicus brief (press DOWNLOAD button above) explains that the State ethics rule  is essential for  maintaining robust attorney-client relationships, including by fostering full and frank communications between corporations and their in-house counsel about sensitive subjects such as regulatory compliance and internal investigations.

The challenged rule, like those in 30 other States, is based on ABA Model Rule of Professional Conduct 3.8(e) (“Special Responsibilities of a Prosecutor”).  It prohibits prosecutors from subpoenaing lawyers to present non-privileged grand jury evidence about their clients unless the evidence is “essential” and “there is no other feasible alternative to obtain the information.”  In 2013 the United States, through the Department of Justice, sued the Supreme Court of New Mexico on the theory that the State ethics rule is impliedly preempted as to federal prosecutors in a grand jury context because it conflicts with a more lenient, federal “reasonable possibility the information is relevant” standard for issuance of grand jury subpoenas to attorneys.   Even though the McDade Amendment, 28 U.S.C. § 530B, expressly subjects federal government attorneys to State ethical standards, a  Tenth Circuit panel, over a strong dissent, issued an opinion agreeing with the Department of Justice.   The New Mexico Supreme Court and related attorney disciplinary bodies have filed a petition for certiorari seeking U.S. Supreme Court review.  Supreme Court of New Mexico v. United States, No. 13-1323.