US Loses Challenge|to NM Subpoena Rule

ALBUQUERQUE (CN) — The 10th Circuit refused the United States' request for an en banc rehearing of its challenge to a New Mexico rule of professional conduct that makes it more difficult for federal prosecutors to subpoena attorneys in criminal proceedings.

The United States' April 30, 2013 lawsuit against New Mexico's Supreme Court, the state's Disciplinary Board, and its Office of Disciplinary Counsel, claimed New Mexico Rule of Professional Conduct 16-308(E) violates the Supremacy Clause of the Constitution.

Rule 16-308(E) precludes prosecutors, including federal prosecutors, from subpoenaing a lawyer in a grand jury or other criminal proceeding unless they reasonably believe the information sought from the subpoenaed lawyer is not privileged, essential, and that there is no other feasible way to obtain the information.

The Department of Justice claimed this places an undue burden on federal prosecutors, requiring them to meet such stringent standards for subpoenas that prosecutors have "refrained from seeking subpoenas in all circumstances in which they would otherwise be permitted to do so under federal law. They have also refrained from subpoenaing attorneys where they otherwise might have done so out of concern regarding potential disciplinary proceedings under the Rule."

Placing requirements on subpoenas stricter than required by federal law violated the Supremacy Clause, the government said.

U.S. District Judge William Johnson ruled in 2014 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.

The United States sought a rehearing en banc, but last week 10th Circuit Chief Judge Jerome Holmes wrote for a three-judge panel that Judge Johnson was correct, and declined to rehear the case.

Johnson granted New Mexico's request for a rehearing but only to the extent of changes made to a footnote and to two other pages, the revised opinion to be filed nunc pro tunc to the original filing date of June 7, 2016.

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