ABA brief urges 10th Circuit to apply ethics rule on grand jury subpoenas to federal prosecutors
The ABA has filed an amicus brief asking a federal appeals court to rehear a decision that allows federal prosecutors to subpoena lawyer testimony before federal grand juries without abiding by a state ethics rule on prosecutor responsibilities.
The brief (PDF) asserts that a panel of the Denver-based 10th U.S. Circuit Court of Appeals wrongly decided the case, according to an ABA press release. The 2-1 decision in June interpreted federal law as conflicting with and pre-empting the New Mexico ethics rule setting out standards for grand jury subpoenas.
The ethics rule is identical to ABA Model Rule 3.8(e), which says prosecutors shall not subpoena a lawyer to testify about a client in a grand jury or criminal proceedings unless the prosecutor reasonably believes the information isn’t privileged, the evidence sought is essential, and there is no other feasible alternative to obtain it.
The ABA model rule was adopted amid concern about federal prosecutors issuing grand jury subpoenas to lawyers that intruded on the attorney-client relationship, the ABA brief says. Those same concerns spurred the ABA’s support of the federal law at issue in the case, Section 530B.
The law says federal government attorneys practicing in a state “shall be subject to state laws and rules, and local federal court rules … to the same extent and in the same manner as other attorneys in that state.”
According to the ABA brief, Section 530B “does not provide for exceptions, either in the grand jury context or otherwise, to its command that federal prosecutors and other federal government attorneys shall be subject to state laws and rules governing attorney conduct.”
