Christensen & Jensen | 257 East 200 South, Ste 1100 Salt Lake City, Utah 84111


Tenth Circuit: Prosecutors may subpoena lawyers to testify before grand jury

Attorney Subpoenas for Grand Jury

In June, the Tenth Circuit Court of Appeals, as a matter of first impression, held that a New Mexico rule of professional conduct limiting a prosecutor’s ability to subpoena a lawyer to testify about past or present clients during grand jury or other criminal proceedings was preempted by federal law.  The New Mexico defendants have petitioned for rehearing en banc, but no decision has been issued on their petition for rehearing in front of the entire Tenth Circuit.

ABA Model Rule 3.8(e)

In 1990, in response to what was perceived as an “increasing incidence of grand jury and trial subpoenas directed toward attorneys defending criminal cases,” the American Bar Association (“ABA”) issued Model Rule of Professional Conduct 3.8(e) to “limit the issuance of lawyer subpoenas in grand jury and other criminal proceedings to those situations in which there is a genuine need to intrude into the client-lawyer relationship.”  Subsequently, a number of states adopted their own versions of Model Rule 3.8(e), thereby prohibiting prosecutors in their state from issuing a subpoena to a lawyer to testify in a grand jury or other criminal proceeding about past or present clients unless certain circumstances were present.

Decisions Over Rule 3.8 Have Varied

However, in the time since these rules were adopted by the various states a number of legal challenges have been made to the rules, but with varying results.  For example, the Third Circuit Court of Appeals, in Baylson v. Disciplinary Bd. Of Supreme Court of Pa., “concluded that the judicial preapproval in Pennsylvania’s version of Model Rule 3.8(e) conflicted with federal rules governing the issuance of subpoenas, and held that the enforcement of the rule against federal prosecutors was preempted.”  Conversely, the First Circuit Court of Appeals, in Whitehouse v. U.S. Dist. Court for Dist. R.I., “found that Rhode Island’s version of the rule created ‘no conflict with the Supremacy Clause.’”

The Tenth Circuit is the Latest Battleground Over Rule 3.8

As previously noted, in the latest round of litigation over a state’s version of Model Rule 3.8(e), the Tenth Circuit Court of Appeals affirmed a lower district court’s ruling that New Mexico’s version of the rule (Rule 16-308(E), New Mexico Rules of Professional Conduct) was “preempted with respect to federal prosecutors practicing before grand juries, but is not preempted outside of the grand-jury context.”

Colorado Supreme Court I

In its opinion, the Tenth Circuit recites the history of similar cases previously before the court.  In United States v. Colo. Supreme Court, the United States sought to overturn the lower district court’s dismissal of the United States’ challenge to Colorado’s adoption of Model Rule 3.8(e) on jurisdictional grounds (standing).  There, the Tenth Circuit reversed the lower court’s decision, “concluding that, even though no federal prosecutor had been sanctioned under Colorado’s rule, the potential that it would ‘interfere with federal prosecutors in their conduct of criminal proceedings and change the nature of the federal grand jury in Colorado’ was a sufficient injury in fact to render the case justiciable.”

Colorado Supreme Court II

Eventually the case returned to the Tenth Circuit after the lower district court ruled on the merits of the United States’ challenge.  However, in the time since the case was first heard by the Tenth Circuit, certain changes to the legal landscape had occurred.  First, following the ABA’s lead, the Colorado Supreme Court amended Rule 3.8(e) by removing the judicial preapproval requirement.  Second, in 1998, Congress enacted the McDade Act, which required that:

(a) An attorney for the Government shall be subject to State laws and rules, and local Federal court rules, governing attorneys in each State where such attorney engages in that attorney’s duties, to the same extent and in the same manner as other attorneys in that State.

(b) The Attorney General shall make and amend rules of the Department of Justice to assure compliance with this section.

Thus, by the time the case against the Colorado Supreme Court returned to the Tenth Circuit, the court said the “question whether Rule 3.8 violate[d] the Supremacy Clause now turn[ed] on whether the rule [wa]s a rule of professional ethics clearly covered by the McDade Act, or a substantive or procedural rule that [wa]s inconsistent with federal law.”  Or, in other words, “the essence of the inquiry was whether Rule 3.8 was preempted by federal law.”

Tenth Circuit’s Holding in Colorado Supreme Court II Limited to Non-Grand Jury Context

It is important to note, in the case against the Colorado Supreme Court, the Tenth Circuit was only asked to address “whether Colorado’s Rule 3.8 was preempted outside the grand-jury context—viz., the ‘trial’ context.”  Thus, the Tenth Circuit was not required to address preemption in the context of grand jury proceedings.  Turning to the issue at hand, the Tenth Circuit held that Colorado’s Rule 3.8 was not “otherwise ‘inconsistent with federal,’” and “therefore it could be ‘enforced by the state defendants against federal prosecutors.’”

New Mexico’s Rule 16-308(E)

With that historical background in mind, the Tenth Circuit turned to the merits of the case against the New Mexico Supreme Court.  Before getting to the merits of the case, the Tenth Circuit noted that New Mexico’s Rule 16-308(E) is identical to the Colorado rule that the Tenth Circuit was asked to review in the previous case.  However, while the U.S. District Court for the District of New Mexico “has generally adopted the New Mexico Rules of Professional Conduct … it has chosen not to adopt Rule 16-308(E),” the Tenth Circuit said.  Even still, the Tenth Circuit says that Rule 16-308(E) “continues to apply to the conduct of federal prosecutors licensed to practice in New Mexico, and a violation of the rule can form the basis for disciplinary sanctions.”

United States Sues New Mexico Over Rule 16-308(E)

In April 2013, the United States filed suit against the New Mexico Supreme Court and the other defendants, “arguing that the second and third requirements of Rule 16-308(E)—i.e., the essentiality and no-other-feasible-alternative conditions—were preempted by federal law.”  The Defendants responded by moving to dismiss the complaint for lack of subject matter jurisdiction, “arguing that the United States lacked standing and that the case was not ripe in the absence of an actual or threatened disciplinary action against a federal prosecutor.”  The district court rejected the defendants’ argument, relying in large part on the Tenth Circuit’s decision in the aforementioned Colorado case.

District Court Grants Partial Summary Judgment to Both Parties

In June 2013, the United States moved for summary judgment, before either party had an opportunity to conduct any discovery.  Attached to the motion was an affidavit from an assistant U.S. Attorney in the district of New Mexico, which described the rule’s impact on the U.S. Attorney’s Office’s work in New Mexico.  Defendants filed a motion under Federal Rule of Civil Procedure 56(d), asking the judge to delay ruling on the summary judgment motion until after discovery was complete.  Alternatively, the defendants moved for summary judgment in their own right, “claiming that Rule 16-308(E) was a permissible ethics rule under the McDade Act and our opinion in Colorado Supreme Court II.”  The district court denied the defendants’ motion to the extent it requested a delay in ruling on the United States’ motion until after discovery had been completed.

Following further briefing and argument, the district court granted partial summary judgment in favor of the United States and partial summary judgment in favor of the defendants.  The district court said that the decision in Colorado Supreme Court II “compelled the conclusion that Rule 16-308(E) was not preempted by federal law as to criminal proceedings outside of the grand-jury context.”  However, the district court did find that the rule conflicted with the governmental interests in grand jury proceedings.  As a result, the district court enjoined the defendants from “instituting, prosecuting, or continuing any disciplinary proceeding or action against any federal prosecutor for otherwise lawful actions taken in the course of a grand jury investigation or proceeding on the ground that such attorneys violated Rule 16-308(E) of the New Mexico Rules of Professional Conduct.”  Both parties subsequently appealed the district court’s ruling.

Tenth Circuit Holds That Rule 16-308(E) is Preempted by Federal Law

On appeal, the Tenth Circuit held:

(1) the district court had subject-matter jurisdiction because the United States had standing and the claim was ripe for review;

(2) because the United States’s preemption claim is a legal one, the district court did not abuse its discretion in denying discovery;

(3) the district court correctly concluded that (a) under our decision in Colorado Supreme Court II, the challenged provisions of Rule 16-308(E) are not preempted outside of the grand-jury context, but (b) they are preempted in the grand-jury setting because they conflict with the federal-law principles—embodied in the Grand Jury Clause of the Constitution, as interpreted by the Supreme Court—that govern federal prosecutors’ attorney-subpoena practices before grand juries, and thereby stand as an obstacle to the effectuation of the grand jury’s constitutionally authorized investigative functions; and

(4) the district court’s injunction appropriately prohibits the enforcement of Rule 16-308(E)(2) and (3) against federal prosecutors practicing before grand juries, while permitting the enforcement of Rule 16-308(E)(1).

McDade Act Cannot Save Rule 16-308(E)

Of greatest interest here is the court’s determination that Rule 16-308(E) is preempted in the grand jury context.  In that part of its opinion, the Tenth Circuit determined that the proper analytical framework for determining the preemption issue were the standards applicable to a facial claim.  Having made that determination, the court, relying on its previous decision in Colorado Supreme Court II, concluded that, even though the challenged provisions of Rule 16-308(E) were within the purview of the McDade Act, they were otherwise inconsistent with federal law in the grand jury context.  In coming to this conclusion, the court said:

Resolving this question as a matter of first impression, we conclude that Rule 16-308(E)’s challenged provisions are conflict-preempted in the grand-jury setting because the essentiality and no-other-feasible-alternative requirements pose “an obstacle to the accomplishment and execution of the full purposes and objectives” of the federal legal regime governing grand-jury practice.

Tenth Circuit’s Holding Limited to Grand Jury Context

However, the Tenth Circuit limited its holding solely to the grand jury context:

[W]e conclude that the district court appropriately determined that the challenged provisions of Rule 16-308(E) are not preempted relative to federal prosecutors’ issuance of attorney subpoenas in criminal proceedings outside of the grandjury context.

Thus, under the Tenth Circuit’s ruling, the challenged provisions of Rule 16-308(E) are preempted in the context of grand jury proceedings, but not in other criminal proceedings, i.e., trial.

Dissent Disagrees that McDade Act Does not Protect Rule 16-308E

While the majority held that the McDade Act could not save Rule 16-308(E), Chief Judge Tymkovich concluded otherwise:

As I see it, the first and only question we must answer is: whether the rule is one governing ethics?  If it is, considering its burden on federal interests is unnecessary because Congress has authorized the rule’s application to federal prosecutors.  And because Colorado Supreme Court II classified an identical rule as an ethics rule, the answer is straightfoward.  Since the majority’s holding departs from Congress’s clear intent to apply all state ethics rules to federal prosecutors, I respectfully dissent.

Defendants Petition for Rehearing in Front of Entire Tenth Circuit

Following the Tenth circuit’s ruling, the New Mexico Supreme Court and the other defendants filed a petition for rehearing en banc.  The United States’ response to the defendants’ petition is due September 20, 2016.

ABA Files Amicus Brief in Support of Defendants

In the meantime, the ABA has filed an amicus curiae brief in support of the defendants petition for rehearing en banc. In its amicus brief, the ABA argues that Congress, by enacting the McDade Act, “expressly rejected in all contexts the justice department’s well-publicized position that state ethical rules should not apply to federal prosecutors.”  Furthermore, the ABA argued that the majority “has invented a new and unsupported principle of statutory construction in refusing to apply [the McDade Act] according to its plain terms.”

Criminal Defense Attorneys Beware

While it remains to be seen whether the Tenth Circuit will grant the defendants’ petition for rehearing en banc, the Tenth Circuit’s ruling poses significant challenges, both ethically and legally, for criminal defense attorneys practicing in federal court in New Mexico, and other states that have similar ethical rules.  Under the Tenth Circuit’s ruling, criminal defense attorneys may be subpoenaed to testify in front of a federal grand jury regarding past or present clients without much respect to attorney-client privilege.  This is no doubt frightening for many criminal defense attorneys.  As a result, there can be little doubt that criminal defense attorneys throughout the Tenth Circuit will be sitting on edge until the Tenth Circuit rules on the petition for rehearing en banc.