Tenth Circuit holds that New Mexico rule of professional conduct can't bind federal prosecutors

United States v. Supreme Court of N.M., Nos. 14-2037, 14-2049 (10th Cir. June 7, 2016).

A New Mexico ethical rule prohibits prosecutors from subpoenaing a lawyer to testify about a past or present client unless the testimony is “essential” or “there is no other feasible alternative.” A federal grand jury, however, has the power to subpoena a witness even if that witness’s information might be available from another source. The federal government argues that this rule can’t be enforced against federal prosecutors, because New Mexico’s rule would prevent a federal prosecutor from asking a federal grand jury to issue a subpoena that it could otherwise issue. The Tenth Circuit agrees with the United States and holds that the rule is preempted.

Judge Tymkovich dissents, pointing to the McDade Amendment, a federal law requiring lawyers working for the federal government to obey state ethical rules. The McDade Amendment is named after Joe McDade, who in the early ’90s was indicted for bribery. He was eventually acquitted, but he complained that federal prosecutors had violated Pennsylvania ethical rules. Meanwhile, McDade’s constituents had enthusiastically reelected him. And, in 1998, McDade offered a rider to an appropriations bill that—despite opposition from Orrin Hatch—eventually became the McDade Amendment. 

The majority doesn’t think the McDade Amendment saves New Mexico’s rule. The Tenth Circuit, and other courts too, have construed the McDade Amendment narrowly. If the state ethical rule concerns “professional ethics,” then the McDade Amendment saves it. If the rule is a “substantive or procedural” one that is “inconsistent with federal law,” McDade doesn’t apply. And here, according to the panel majority, New Mexico’s rule establishes a procedural rule. Besides, adds the majority, the grand jury’s role under the Fifth Amendment requires reading McDade narrowly. While the majority doesn’t use the phrase, it sure looks like it’s applying the canon of constitutional doubt.