USA Takes On New Mexico Supreme Court

ALBUQUERQUE (CN) - The United States sued the New Mexico Supreme Court over the state's treatment of federal prosecutors, challenging the constitutionality of its rule of professional conduct that makes it hard for the feds to subpoena attorneys in criminal proceedings.

The United States sued the Supreme Court of New Mexico, the Disciplinary Board of New Mexico, and the state's Office of Disciplinary Counsel, in Federal Court.

The complaint states: "This action is brought pursuant to the Supremacy Clause of the United States Constitution, Article VI, Clause 2, by which state laws are preempted whenever federal law occupies the field so as to preclude state regulation, and whenever state law interferes or conflicts with federal law. As applied to federal prosecutors, New Mexico Rule of Professional Conduct 16-308(E) ('Rule 16-308(E)' or 'Rule') violates the Supremacy Clause in both of these respects. Though nominally a rule of professional conduct, Rule 16-308(E) precludes a prosecutor, including a federal prosecutor, from subpoenaing a lawyer in a grand jury or other criminal proceedings unless he reasonably believes that the information sought from the subpoenaed lawyer is not privileged, essential, and there is no other feasible alternative way to obtain the information. The Rule thereby imposes its own substantive requirements on the federal criminal process that are more rigorous than federal standards. These requirements invade a field occupied by federal regulation and conflict with federal law. The imposition of these untenable requirements on prosecutors threatens to preclude the service of otherwise valid subpoenas upon attorneys; restrict the flow of relevant, material, and unprivileged evidence to the fact-finder; and thereby interfere with federal law enforcement.

"Plaintiff seeks a declaration that Rule 16-308(E) of the New Mexico Rules of

Professional Conduct is null and void as it pertains to federal prosecutors in the performance of their official duties on the grounds that this Rule is preempted by federal common law, the Federal Rules of Criminal Procedure, and the Federal Rules of Evidence. Plaintiff also seeks a permanent injunction precluding defendants from enforcing Rule16-308(E) against any federal prosecutor licensed in the District of New Mexico for conduct occurring in the course of a federal criminal investigation or prosecution."

The New Mexico rule took effect on Nov. 3, 2008.

A March 2010 administrative order may have suspended the application of the rule, but it still "may apply to the conduct of all lawyers licensed in New Mexico, including lawyers employed by the Department of Justice, whether they practice in New Mexico or elsewhere," according to the lawsuit.

The U.S. Department of Justice says it employs about 70 lawyers in New Mexico.

Uncle Sam claims that federal prosecutors in New Mexico 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."

The rule violates the Supremacy Clause, and "New Mexico is preempted from promulgating its own rules to regulate federal criminal practice and procedure," according to the complaint.

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