USA v. Colorado Supreme Court

• Decision Date: 01 September 1999
• Docket Number: No. 98-1081,98-1081
• Citation: 189 F.3d 1281
• Parties: (10th Cir. 1999) UNITED STATES OF AMERICA, Plaintiff-Appellant, v. COLORADO SUPREME COURT, GRIEVANCE COMMITTEE OF THE COLORADO SUPREME COURT, and COLORADO SUPREME COURT DISCIPLINARY COUNSEL, Defendants-Appellees,
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1281

189 F.3d 1281 (10th Cir. 1999)

UNITED STATES OF AMERICA, Plaintiff-Appellant, v. COLORADO SUPREME COURT, GRIEVANCE COMMITTEE OF THE COLORADO SUPREME COURT, and COLORADO SUPREME COURT DISCIPLINARY COUNSEL, Defendants-Appellees,

No. 98-1081

UNITED STATES COURT OF APPEALS TENTH CIRCUIT

September 1, 1999

Appeal from the United States District Court for the District of Colorado. D.C. No. 93-Z-2672

[Copyrighted Material Omitted] Henry L. Solano, United States Attorney; and Kathleen L. Torres and John M. Haried, Assistant United States Attorneys, Denver, Colorado, on the briefs for Plaintiff-Appellant.

Gale A. Norton, Attorney General and Maurice G. Knaizer, Deputy Attorney General, Denver, Colorado, on the brief for Defendants-Appellees.

Before SEYMOUR, Chief Judge, PORFILIO and KELLY, Circuit Judges.

SEYMOUR, Chief Judge.

The issue on appeal concerns whether Colorado Rule of Professional Conduct 3.8(f) as adopted by the District Court of Colorado may be enforced against federal prosecutors in Colorado. The rule restricts the prosecutorial practice of subpoenaing an attorney to compel evidence about a past or present client in criminal proceedings. The district court found no Supremacy Clause violation in the rule as modified to eliminate its applicability to grand jury proceedings, and held the modified rule valid and enforceable against federal prosecutors in the investigation and prosecution of federal crimes. We affirm.¹

I.

We briefly review the manner in which this case evolved to present the sole question before us today. The case originated from a state rule, Colorado Rule of Professional Conduct 3.8(f), that was adopted into the local rules of the District Court of Colorado. See D. Colo. LR 83.6. The rule as originally written restricted prosecutors in criminal and grand jury proceedings from subpoenaing attorneys to give information about a past or present client unless the prosecutor reasonably believed that the information was not protected by a privilege, the evidence sought was essential to an ongoing investigation or prosecution, and there was no feasible alternative to obtain the information. The Rule also required prosecutors to obtain judicial approval before moving forward with a subpoena. The United States Attorney for the District of Colorado brought this action seeking injunctive and declaratory relief against the Colorado Supreme Court and its grievance committee and disciplinary counsel. The district court dismissed the action, holding the United States lacked standing to challenge the application of the Colorado rule to federal prosecutors. On appeal, we reversed and remanded for further proceedings. See United States v. Colorado Supreme Court, 87 F.3d 1161 (10th Cir. 1996).

At that time, Colorado Rule of Professional Conduct 3.8(f) included two provisions that have since been removed.² The first, subsection (2) of the rule, required the prosecutor to obtain prior judicial approval of a subpoena directed to a lawyer, after the opportunity for an adversarial hearing. In 1997, following the first appeal in this case, the Colorado Supreme Court amended the rule by deleting subsection (2). The second provision, a portion of Rule 3.8(f)(1), made the rule applicable to subpoenas to lawyers in grand jury proceedings. 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.³ The issue has thus narrowed to whether Rule 3.8 in its modified incarnation, as applicable to federal prosecutors subpoenaing attorneys to divulge information on past and present clients in connection with a criminal proceeding other than a grand jury, is inconsistent with federal law in violation of the Supremacy Clause of United States Constitution, U.S. Const. art. VI, cl. 2.

While this case was pending appeal, Congress enacted the McDade Act, Pub. L. No. 105-277, 112 Stat. 2681, conclusively establishing that a state rule governing attorney conduct is applicable to federal attorneys practicing in the state. The McDade Act mandates that federal attorneys for the government are to be bound by state professional rules as follows:

§ 530B Ethical standards for attorneys for the Government

(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.

Pub. L. No. 105-277, § 801(a), 112 Stat. 2681-118 (1998) (codified at 28 U.S.C. § 530B). Accordingly, as the parties recognize in their supplemental briefs, the question whether Rule 3.8 violates the Supremacy Clause now turns on whether the rule is a rule of professional ethics clearly covered by the McDade Act, or a substantive or procedural rule that is inconsistent with federal law.

II.

Because this appeal from a summary judgment disposition presents purely legal questions, we review the district court's decision de novo. See Branson Sch. Dist. RE-82 v. Romer, 161 F.3d 619, 627 (10th Cir. 1998).

Black's Law Dictionary defines ethics as, "[o]f or relating to moral action, conduct, motive or character . . . . Professionally right or befitting; conforming to professional standards of conduct." Black's Law Dictionary 553 (6th ed. 1990). Conversely, "unethical has come into vogue in U.S. as an adjective for the conduct of the man who is immoral . . . in violating the accepted code of a profession or business." A Dictionary of Modern English Usage 171 (2d ed. 1965). In the legal profession, unethical conduct can be characterized as "conduct unbecoming a member of the bar," see Fed. R. App. P. 46(c) (authorizes disciplinary action for such conduct); Charles W. Wolfram, Modern Legal Ethics § 3.3 at 87-88 (1986). The Supreme Court has in turn defined such conduct as "conduct contrary to professional standards that shows an unfitness to discharge continuing obligations to clients or the courts, or conduct inimical to the administration of justice. More specific guidance is provided by case law, applicable court rules, and 'the lore of the profession,' as embodied in codes of professional conduct." In re Snyder, 472 U.S. 634, 645 (1985) (reversing suspension of lawyer for refusing to apologize for a "harsh" letter to Court of Appeals for the Eighth Circuit);⁴ see also Braley v. Campbell, 832 F.2d 1504, 1510 n.5 (10th Cir. 1987) (en banc).

Despite the somewhat vague and tautological descriptions of legal ethics as normative professional conduct, and professional conduct as legal ethics, and despite being subject to influences as mutable as "the lore of the profession," the legal profession has codified the standards with some success. See Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626, 677 (1985) (O'Connor, J., concurring in part, dissenting in part) ("The legal profession has in the past been distinguished and well served by a code of ethics which imposes certain standards beyond those prevailing in the marketplace and by a duty to place professional responsibility above pecuniary gain."). The Model Rules of Professional Conduct follow in the path of a number of codes and represents the American Bar Association's most recent codification of legal ethical standards. See Charles W. Wolfram, Modern Legal Ethics § 2.6.2 at 53-54 (Cannons of Ethics), § 2.6.3 at 56 (Code of Professional Responsibility), § 2.6.4 at 60 (Model Rules of Professional Conduct) (1986); see generally Model Rules of Professional Conduct (1999). The federal courts in analyzing conduct unbecoming to a member of the bar turn invariably to the Model Rules or other codes of professional conduct. See generally In re Snyder, 472 U.S. 634. State courts have adopted similar rules, and federal district courts across the country have in turn adopted the local codes of ethics, applying them to both private and government practitioners.

The question is whether the version of Rule 3.8 before us is one of those normative legal standards that guides the conduct of an attorney. Although the relevant caselaw offers some guidance, it is slightly amiss in responding to our inquiry because the cases involve other versions of rules that govern grand jury matters and require the prosecutor to obtain judicial approval prior to subpoenaing a lawyer. See, e.g., Whitehouse, 53 F.3d 1349; Baylson 975 F.2d 102. In Baylson, for example, three federal prosecutors sued to enjoin the Disciplinary Board of the Supreme Court of Pennsylvania from requiring them to obtain prior judicial approval before serving a grand jury subpoena on an attorney. The court held a rule similar to the earlier version of Rule 3.8 invalid for two independent reasons. First, it was outside the scope of local rule making authority, an issue resolved in our case due to Congress' enactment of the McDade Act. See Baylson, 975 F.2d at 107-08 (discussing rule-making authority).⁵ Second, the rule violated the Supremacy Clause by attempting to regulate an area federal law controlled. Id. at 112. Dismissing the need to characterize the rule as either procedural or ethical, the court stated, "For purposes of determining whether [the rule] violates the Supremacy clause, it matters not at all what the Board or Baylson choose to call it. What matters is whether the substance of [the rule] actually conflicts or is incompatible with federal law." Id. at 111. The rule "does not suddenly become consistent with Fed. R. CIM. P. 17 as a state rule of professional conduct." Id. The court held that the rule's judicial approval requirement violated the Supremacy Clause because it was incompatible with the federal rules of criminal procedure. Id. at 112. Rule 17 regulates...