This summary was computer-generated without any editorial revision. It is not official, has not been checked for accuracy, and is NOT citable.
Facts
An Assistant United States Attorney (AUSA) communicated directly and indirectly with a criminal defendant who was represented by counsel. The defendant, in custody for a murder charge, initiated contact with law enforcement and the AUSA multiple times, providing statements about the case. The AUSA failed to notify the defendant's attorney of these communications and continued to accept calls and listen to the defendant's statements, despite objections raised by the defense counsel in court (paras 2-12).
Procedural History
- District of Columbia Superior Court, 1989: The defendant's motion to suppress statements and dismiss the indictment due to prosecutorial misconduct was denied. The court referred the matter of the AUSA's potential ethical violations to the District of Columbia Board of Professional Responsibility (para 13).
- District of Columbia Board of Professional Responsibility, 1990: The case was referred to New Mexico's disciplinary counsel due to jurisdictional limitations (para 14).
- United States District Court for the District of New Mexico, 1992: The court upheld New Mexico's jurisdiction over the disciplinary proceedings (para 15).
- United States District Court for the District of Columbia, 1993: The court affirmed New Mexico's jurisdiction over the AUSA's conduct (para 15).
Parties' Submissions
- Respondent (AUSA): Argued that his actions were authorized by law, relied on the advice of his supervisors, and were consistent with federal constitutional principles. He contended that his conduct did not constitute "communication" under the ethical rules and that disciplinary action was unwarranted (paras 17-18, 25, 33, 49).
- Disciplinary Board: Asserted that the AUSA violated ethical rules by communicating with a represented party without the consent of their attorney and by inducing law enforcement to engage in such communications. The Board recommended public censure (paras 16, 62).
Legal Issues
- Did the AUSA violate Rule 16-402 by communicating with a represented party without the consent of their attorney?
- Was the AUSA's conduct authorized by law or federal constitutional principles?
- Can the AUSA rely on the advice of supervisors to excuse ethical violations under Rule 16-502(B)?
- Does the Supremacy Clause preclude the enforcement of New Mexico's ethical rules against the AUSA?
- What is the appropriate sanction for the AUSA's conduct?
Disposition
- The Supreme Court of New Mexico found that the AUSA violated Rules 16-402 and 16-804(A) of the Rules of Professional Conduct.
- The Court imposed a public censure and ordered the AUSA to reimburse the disciplinary board's costs (paras 62-63).
Reasons
Per Curiam (Franchini C.J., Baca, Minzner, and Serna JJ., McKinnon J. not participating):
Violation of Rule 16-402: The AUSA's acceptance of calls and willingness to listen to the defendant constituted "communication" under Rule 16-402. The rule prohibits such contact without the consent of the defendant's attorney, regardless of whether the defendant initiated the communication (paras 25-32).
Not Authorized by Law: The AUSA's actions were not "authorized by law." The cited federal statutes and case law did not exempt the AUSA from complying with ethical rules. The Court rejected the argument that DOJ policies or internal memoranda could override state ethical obligations (paras 33-43).
Supremacy Clause: The Court held that the Supremacy Clause did not preclude enforcement of New Mexico's ethical rules. There was no conflict between federal law and the ethical rules, as compliance with both was possible (paras 44-48).
Reliance on Supervisors' Advice: The AUSA could not rely on Rule 16-502(B) to excuse his conduct. The rule does not absolve attorneys of responsibility for ethical violations, particularly when the advice sought was focused on evidentiary admissibility rather than ethical compliance (paras 18-24).
Sanction: The Court considered the AUSA's intentional conduct, lack of remorse, and substantial legal experience as aggravating factors. While there was no evidence of actual harm, the potential for harm to the legal system justified public censure (paras 49-60).