U.S. District Judge William Johnson ruled recently 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 have 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.
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