In re Chavez
| Decision Date | 06 February 2017 |
| Docket Number | NO. S-1-SC-35469,S-1-SC-35469 |
| Citation | 390 P.3d 965 |
| Parties | In the MATTER OF Emilio Jacob CHAVEZ, Esquire An Attorney Licensed to Practice Law Before the Courts of the State of New Mexico Consolidated With: In the Matter of Donald A. Gallegos, Esquire An Attorney Licensed to Practice Law Before the Courts of the State of New Mexico |
| Court | New Mexico Supreme Court |
William D. Slease, Chief Disciplinary Counsel, Christine E. Long, Assistant Disciplinary Counsel, Albuquerque, NM for Disciplinary Board.
William Riordan & Associates, William Riordan, Albuquerque, NM for Respondent Emilio Jacob Chavez.
Ahmad Assed & Associates, Ahmad Assed, Richard J. Moran, Albuquerque, NM for Respondent Donald A. Gallegos.
{1} This disciplinary action involves Respondents Emilio Jacob Chavez, Deputy District Attorney for the Eighth Judicial District, and his supervisor Donald A. Gallegos, District Attorney for the Eighth Judicial District. Over the course of two years, Chavez engaged in a pattern of issuing investigative subpoenas unconnected to court or grand jury proceedings. Gallegos authorized the issuance of a subset of the subpoenas, but was unaware of most of them.
{2} We hold that Chavez violated Rule 16–404(A) NMRA of the Rules of Professional Conduct, and that Gallegos violated Rules 16–404(A) and 16–501(C) NMRA of the Rules of Professional Conduct. This opinion clarifies an issue of fundamental importance: it is unlawful for a court or an officer of the court to issue any subpoena in the absence of a pending judicial action.
{3} Between 2012 and 2013, Chavez signed and issued at least ninety-four subpoenas concerning numerous separate investigations. The subpoenas were directed primarily to various cellular phone providers seeking subscriber information and call activity in order to narrow potential suspects, but several sought medical records, CYFD records, and utility records. The subpoenas were not issued by a sitting grand jury nor reviewed by any judicial officer and were not connected to any cases before the court. All of the subpoenas were filed with the Eighth Judicial District Court prior to service and assigned to a miscellaneous criminal file. Because there were no cases, there were no parties, and so Chavez issued the subpoenas without notice to the individuals whose information was being sought. Many of the subpoenas were captioned State of New Mexico v. John Doe .
{4} During a robbery investigation in April 2013, Chavez and a detective wished to issue subpoenas duces tecum for investigative purposes and asked Gallegos to approve them. Respondents conducted research into the issuance of such subpoenas and concluded that they were lawful. Gallegos eventually approved the practice of issuing investigative subpoenas for phone subscriber information. Eleven subpoenas were issued in connection with the robbery investigation. In October 2013, defendants in the robbery case filed a motion to quash their indictments based on the improper issuance of subpoenas. The motion was granted and the state appealed to the Court of Appeals. That appeal is now pending before this Court. State v. Martinez , S-1-SC-35757, order of certification at 1-2 (N.M. Ct. App. Mar. 7, 2016) (non-precedential).
{5} In October 2014, the Disciplinary Board initiated disciplinary actions against Respondents over the issuance of the subpoenas. The Disciplinary Board alleged that Chavez unlawfully issued subpoenas, improperly issued subpoenas without notifying parties in several of the controversies, and issued subpoenas that failed to follow proper form as required by Rule 5–511 NMRA and Form 9–217 NMRA. The Disciplinary Board claimed Chavez violated Rules 16–101 NMRA, 16-304(A), (C) NMRA, 16–305(C)NMRA, 16–404(A) NMRA, and/or 16-804(D) NMRA. Aside from the subpoenas Gallegos authorized in the robbery case, he did not know of any others until the filing of the disciplinary action. Gallegos also did not know that subpoenas had been issued in improper form, had been issued without notice to parties in the various cases, or had been improperly filed. Gallegos is implicated primarily due to his supervisory position with respect to Chavez. The Disciplinary Board claimed violations against Gallegos including Rules 16–101, 16–304(A), (C), 16–305(C)16–404(A), 16–501(A)–(C), and/or 16–804(D).
{6} The Disciplinary Board designated a Hearing Committee, which found that Chavez's research into the issuance of the subpoenas was reasonable and thorough, had not revealed a clear answer to the question, and that neither Respondent had "knowingly avoided or subverted a legal obligation or duty arising from either of their respective offices." The Hearing Committee found that disciplinary counsel had failed to prove violations of the Rules of Professional Conduct by either Respondent and recommended that the charges of misconduct be dismissed as to both Respondents.
{7} On review of the Committee's findings, Disciplinary Board counsel rejected numerous findings of fact as containing conclusions of law, including findings that the Respondents had acted reasonably, and disagreed with the Hearing Committee's conclusions of law.
{8} The disciplinary panel recommended, and the Disciplinary Board requested of this Court, formal reprimand for Gallegos and public censure, a more serious punishment, for Chavez. The Board also recommended that costs for the disciplinary action be shared between the Respondents. At the conclusion of the hearing before this Court, we ruled from the bench that both Respondents should receive formal reprimands but deferred the issuance of those formal reprimands for one year and provided that the issuance of the formal reprimands would be automatically withdrawn if the Respondents committed no further violations of the Rules of Professional Conduct during the one-year deferral period. We also denied the assessment of costs against the Respondents and indicated that we would issue an opinion at a later date to further explain our decision.
{9} Rule 17–316(A)(1) NMRA grants this Court the authority to review the disciplinary recommendation of a public censure against Chavez. Rule 17–316(A)(2), subparagraphs (b) and (d) grant this Court authority to review the recommendation of a formal reprimand against Gallegos because the Disciplinary Board's petition alleges a significant question of law and an issue of substantial public interest.
{10} With respect to the findings and conclusions of a hearing committee, the standard of review for a disciplinary panel and for this Court is the same: both entities afford deference to findings of fact and review conclusions of law de novo. In re Bristol , 2006–NMSC–041, ¶¶ 18, 26, 140 N.M. 317, 142 P.3d 905. This Court is not bound by the Disciplinary Board's legal conclusions about which Rules of Professional Conduct have been violated by Respondents. See In re Estrada , 2006–NMSC–047, ¶¶ 7, 140 N.M. 492, 143 P.3d 731. This Court also does not defer to recommendations regarding the appropriate level of discipline; we are free to impose lesser or greater levels of discipline as we deem appropriate. Bristol , 2006–NMSC–041, ¶ 27, 140 N.M. 317, 142 P.3d 905.
{11} Rule 5–511(A)(1)(b) provides that every subpoena shall "state the title of the action and its criminal action number." Rule 5–511(A)(2) further provides that "[a]ll subpoenas shall issue from the court for the district in which the matter is pending." This language plainly requires that subpoenas be issued only in connection with existing judicial actions. The Court of Appeals declared unauthorized subpoenas to be prosecutorial misconduct in 1985 after a district attorney unilaterally issued subpoenas to financial institutions while investigating an embezzlement case.
State v. Eder , 1985–NMCA–076, ¶¶ 2, 5, 103 N.M. 211, 704 P.2d 465. The Court of Appeals stated that using unauthorized subpoenas to compel witnesses to produce documents Id. ¶ 5. The Court of Appeals has also held that not even a sitting district court judge possesses the authority to compel a person to submit evidence when no complaint, information or indictment has been filed against the person and thus when no criminal prosecution has commenced. Sanchez v. Attorney General , 1979–NMCA–081, ¶¶ 12, 20, 93 N.M. 210, 598 P.2d 1170.
{12} Respondents argue that they made a reasonable decision in issuing the subpoenas at issue because their research revealed no New Mexico authority disallowing the process. Chavez relied on several authorities that he determined were ambiguous on the issue: NMSA 1978, Section 36–2–11 (1953) ; federal stored communications laws, 18 U.S.C. §§ 2701 -2712 (2012) ; and Rule 1–045 NMRA.
{13} Section 36–2–11(A) provides:
An attorney has authority: to execute in the name of his client any bond or other written instrument necessary and proper for the prosecution of an action or proceeding about to be or already commenced, or for the prosecution or defense of any right growing out of an action, proceeding or final judgment rendered therein[.]
We read the language "an action ... about to be or already commenced" to include only those actions sanctioned by a grand jury or a district court. This view is supported by Sanchez . 1979–NMCA–081, ¶¶ 27–28, 93 N.M. 210, 598 P.2d 1170. We hold that Section 36–2–11(A) does not provide authority for a prosecutor to unilaterally issue subpoenas prior to the commencement of a judicial action.
{14} The federal communications laws on which Chavez relied provide that a governmental entity may require the disclosure of stored electronic communication records "only pursuant to a warrant issued using the procedures described in the Federal Rules of...
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United States v. Streett
...outside this process, Streett argues, it "was obtained in violation of New Mexico law and due process." Reply at 3 (citing In re Chavez, 2017-NMSC-012, 390 P.3d 965 ; State v. Martinez, 2018-NMSC-031, 420 P.3d 568 ; State v. Eder, 1985-NMCA-076, 103 N.M. 211, 704 P.2d 465 ). Streett then no......
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State v. Martinez
... ... See In re Chavez , 2017-NMSC-012, 12, 390 P.3d 965. {13} While noting that the deputy district attorney and district attorney apparently had not acted in bad faith, id. 24, we held in Chavez that the purported subpoenas were unlawful because they were issued unilaterally outside the authority of a pending ... ...