United States v. Supreme Court of New Mex.

• Decision Date: 07 June 2016
• Docket Number: 14–2049,Nos. 14–2037 &amp,s. 14–2037 &amp
• Citation: 839 F.3d 888
• Parties: United States of America, Plaintiff–Appellee/Cross–Appellant, v. Supreme Court of New Mexico; The Disciplinary Board of New Mexico; Office of the Disciplinary Counsel of New Mexico, Defendants–Appellants/Cross–Appellees. The American Bar Association, Amicus Curiae.
• Court: U.S. Court of Appeals — Tenth Circuit

839 F.3d 888

United States of America, Plaintiff–Appellee/Cross–Appellant,

v.Supreme Court of New Mexico; The Disciplinary Board of New Mexico; Office of the Disciplinary Counsel of New Mexico, Defendants–Appellants/Cross–Appellees.

The American Bar Association, Amicus Curiae.

Nos. 14–2037 &

14–2049

United States Court of Appeals, Tenth Circuit.

Filed June 7, 2016

Paul J. Kennedy of Paul Kennedy & Associates, P.C., Albuquerque, NM (Arne Leonard of Paul Kennedy & Associates, P.C., Albuquerque, NM, with him on the briefs) for Defendants–Appellants/Cross–Appellees.

Douglas N. Letter, Appellate Staff Civil Division, United States Department of Justice (Stuart F. Delery, Assistant Attorney General; Damon P. Martinez, United States Attorney for the District of New Mexico; and Jaynie Lilley, Appellate Staff Civil Division, United States Department of Justice, with him on the briefs), for Plaintiff–Appellee/Cross–Appellant.

James R. Silkenat, President, American Bar Association, Chicago, IL, and Michael S. Greco, John Longstreth, and Molly Suda, K&L Gates, LLP, Washington, DC, on the brief of the American Bar Association, in support of Defendants–Appellants/Cross–Appellees.

Before TYMKOVICH, Chief Judge, HOLMES, and BACHARACH, Circuit Judges.

ORDER

This matter is before the court on the petition for rehearing filed by the state of New Mexico parties, as well as the United States' petition for rehearing en banc. Upon consideration of the New Mexico petition, the original panel grants panel rehearing in part and only to the extent of the changes made to pages 900–01, footnote 6, and pages 902–03 of the attached revised opinion. The clerk is directed to file the revised decision nunc pro tunc to the original filing date of June 7, 2016.

With respect to the United States' petition, the original panel voted to deny any implicit request for panel rehearing. In addition, that petition was also circulated to all of the judges of the court who are in regular active service and who are not recused. As no judge on the panel or the court called for a poll, the United States' petition is denied.

In granting limited panel rehearing with respect to New Mexico's petition, we note and emphasize that the portion of the request seeking en banc review remains pending. That part of the petition remains under advisement.

Entered for the Court

ELISABETH A. SHUMAKER, Clerk

HOLMES, Circuit Judge.

New Mexico Rule of Professional Conduct 16–308(E) (“Rule 16–308(E)”) prohibits a prosecutor from subpoenaing a lawyer to present evidence about a past or present client in a grand-jury or other criminal proceeding unless such evidence is “essential” and “there is no other feasible alternative to obtain the information.” In a lawsuit brought against the New Mexico Supreme Court, and the state's Disciplinary Board and Office of Disciplinary Counsel (“Defendants”), the United States claims that the enforcement of this rule against federal prosecutors licensed in New Mexico violates the Supremacy Clause of the U.S. Constitution. U.S. Const., art. VI, § 2. The district court concluded, on cross-motions for summary judgment, that Rule 16–308(E) is preempted with respect to federal prosecutors practicing before grand juries, but is not preempted outside of the grand-jury context. We agree. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm .

I

A

The roots of Rule 16–308(E) can be traced to the adoption by the American Bar Association (“ABA”) of Model Rule of Professional Conduct 3.8(e) (“Model Rule 3.8(e)”). Faced with what was perceived to be an “increasing incidence of grand jury and trial subpoenas directed toward attorneys defending criminal cases,” ABA Crim. Justice Section, Report with Recommendation to the ABA House of Delegates No. 122B, at 2 (Feb. 1988), the ABA issued Model Rule 3.8(e)¹ in 1990 “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,” Model Rules of Prof'l Conduct r. 3.8(e) cmt. 4 (Am. Bar Ass'n 2015). As adopted, Model Rule 3.8(e) stated:

The prosecutor in a criminal case shall: ...

( [e] ) not subpoena a lawyer in a grand jury or other criminal proceeding to present evidence about a past or present client unless:

(1) the prosecutor reasonably believes:

(a) the information sought is not protected from disclosure by an applicable privilege;

(b) the evidence sought is essential to the successful completion of an ongoing investigation or prosecution;

(c) there is no other feasible alternative to obtain the information; and

(2) the prosecutor obtains prior judicial approval after an opportunity for an adversarial proceeding.

ABA Standing Comm. on Ethics & Prof'l Responsibility, Report with Recommendation to the ABA House of Delegates No. 118, at 1 (Feb. 1990). The rule, as originally adopted, thus consisted of two components. Subsection (e)(1) governed prosecutors' reasonable belief about the content of the information sought—i.e., that it was not privileged, was essential, and could not be obtained from any other feasible alternative. Subsection (e)(2) imposed a judicial preapproval requirement before a prosecutor could obtain an attorney subpoena.

Several states promulgated versions of Model Rule 3.8(e), and legal challenges to these rules produced conflicting outcomes. The Third Circuit, for example, concluded that the judicial preapproval requirement 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. See Baylson v. Disciplinary Bd. of Supreme Court of Pa. , 975 F.2d 102, 111–12 (3d Cir. 1992). In contrast, the First Circuit found that Rhode Island's version of the rule created “no conflict with the Supremacy Clause.” Whitehouse v. U.S. Dist. Court for Dist. of R.I. , 53 F.3d 1349, 1365 (1st Cir. 1995).

Before our court, the United States challenged Colorado's adoption of Model Rule 3.8(e). Specifically, we were called upon to review the district court's dismissal of the United States's action on jurisdictional grounds—that is, “[t]he district court dismissed the complaint for lack of subject matter jurisdiction, stating that the United States did not have standing because it did not allege that federal prosecutors had suffered any actual or imminent injury from application of the rules.” United States v. Colo. Supreme Court (“Colorado Supreme Court I ”), 87 F.3d 1161, 1163 (10th Cir. 1996). We reversed, however, 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. Id. at 1165.

The case later returned to us after the district court ruled on the merits of the United States's challenge. See United States v. Colo. Supreme Court (“Colorado Supreme Court II ”), 189 F.3d 1281 (10th Cir. 1999). In the interim, the legal landscape had been altered in two salient ways. First, following the ABA's lead,² the Colorado Supreme Court amended its Rule 3.8(e) in 1997 by removing the judicial preapproval requirement.³ Id. at 1284. Second, in 1998, Congress stepped in and enacted the McDade Act, 28 U.S.C. § 530B, which requires 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.

The Attorney General then promulgated regulations, pursuant to § 530B(b), stating that the statute “should not be construed in any way to alter federal substantive, procedural, or evidentiary law.” 28 C.F.R. § 77.1(b).

As we framed it in Colorado Supreme Court II , 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.” 189 F.3d at 1284. In a nutshell, the essence of the inquiry was whether Rule 3.8 was preempted by federal law. Significantly, we only addressed there, however, the question of whether Colorado's Rule 3.8 was preempted outside of the grand-jury context—viz. , the “trial” context.⁴ In this regard, in defining the scope of our analysis, we stated: “In its decision on remand, the district court determined that the restriction on grand jury proceedings violated the Supremacy Clause. Defendants have not appealed that determination and we do not address it here.” Id.

Turning to the question at hand, we observed that Colorado's Rule 3.8, inter alia , prescribed “broad normative principles of attorney self-conduct,” and we determined that “the rule in its current incarnation is a rule of ethics applicable to federal prosecutors by the McDade Act.” Id. at 1288–89. Nevertheless, we proceeded to determine whether this ethics rule was otherwise “inconsistent with federal law” and thus preempted. Id. at 1289. We concluded that it was not, and therefore it could be “enforced by the state defendants against federal prosecutors.” Id.

B

Against this backdrop, in 2008, New Mexico adopted Rule 16–308(E), which provides that:

A prosecutor in a criminal case shall: ...

E. not subpoena a lawyer in a grand jury or other criminal proceeding to present evidence about a past or present client unless the prosecutor reasonably believes:

(1) the information sought is not protected from disclosure by any applicable privilege;

(2) the evidence sought is essential to the successful completion of an ongoing investigation or prosecution; and

(3)

...