Matter of Howes
1997 NMSC 024, 940 P.2d 159, 123 N.M. 311 (1997)
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Rule of Law:
A prosecutor violates professional conduct rules by directly or indirectly communicating about the subject of representation with a represented criminal defendant without the defendant's counsel's consent, even if the defendant initiates contact or the prosecutor only listens. Such ethical duties are not excused by reliance on supervisory advice, perceived federal authorization, or the Supremacy Clause of the U.S. Constitution.
Facts:
- In early August 1988, Billy Wilson was shot and killed in Washington, D.C.
- On August 23, 1988, Darryl Smith was arrested for Wilson's murder and gave a videotaped statement admitting his presence at the scene but claiming Larry Epps committed the murder.
- Public Defender Jaime S. Gardner was appointed to represent Smith, and G. Paul Howes was an Assistant United States Attorney (AUSA) representing the U.S. in the case.
- After Howes moved for Smith's release on his own recognizance, Howes indicated he wanted to speak with Smith, but Gardner refused permission without an offer of complete immunity, which Howes would not provide.
- Between September 26 and October 5, 1988, Smith repeatedly contacted Metropolitan Police Detective Donald R. Gossage and made statements about the Wilson murder and two other murders.
- Howes advised Detective Gossage that if Smith initiated further contact, Gossage could listen but not initiate contact, and should take notes for impeachment purposes, but Howes did not discuss notifying Smith's public defender.
- Between October 5 and November 1, 1988, Smith continued to contact Detective Gossage from jail, discussing the Wilson murder, and Howes was aware of these contacts but did not notify Gardner or obtain her permission.
- On November 18, 1988, Smith called Howes on his private line; Howes and Detective Gossage (listening on an extension) heard Smith discuss the Wilson case for about six minutes, and then again for another fifteen minutes after Smith called back, without notifying Gardner.
- Between November 25 and 26, 1988, Howes accepted four more collect calls from Smith, reminded him his attorney had complained, but permitted him to speak about the Wilson murder without notifying Gardner.
Procedural Posture:
- Darryl Smith was indicted for the murder of Billy Wilson.
- Public Defender Jaime S. Gardner moved in state trial court to suppress Smith's statements and/or dismiss the indictment due to prosecutorial misconduct.
- The trial court denied Smith's motion by written order dated July 10, 1989.
- The trial court judge referred the matter of G. Paul Howes' possible violation of DR 7-104 of the Code of Professional Responsibility to the District of Columbia Board of Professional Responsibility.
- In May 1990, the D.C. Board of Professional Responsibility referred the case to New Mexico's disciplinary counsel because the D.C. rule did not apply to AUSAs practicing under 28 USC § 517 in 1988.
- Howes and the U.S. Department of Justice (DOJ) filed federal lawsuits challenging the New Mexico Supreme Court's jurisdiction to conduct the disciplinary proceeding.
- Federal courts resolved both suits in favor of the New Mexico Supreme Court's jurisdiction (e.g., In re Doe, 801 F.Supp. 478 (D.C.N.M.1992) and United States v. Ferrara, 847 F.Supp. 964 (D.C.D.C.1993), aff'd 54 F.3d 825 (App.D.C. 1995)).
- A hearing committee and the disciplinary board concluded that Howes violated New Mexico Rules of Professional Conduct 16-402 and 16-804(A).
- The disciplinary board recommended that Howes be publicly censured.
- G. Paul Howes requested that the New Mexico Supreme Court review the disciplinary board's recommendation.
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Issue:
Does a federal prosecutor violate state rules of professional conduct by directly or indirectly communicating about the subject of representation with a criminal defendant known to be represented by counsel, even when the defendant initiates contact, the prosecutor only listens, and the prosecutor claims reliance on supervisory advice, federal statutes, or that state disciplinary action is preempted by federal law?
Opinions:
Majority - PER CURIAM
Yes, a federal prosecutor violates state rules of professional conduct by directly or indirectly communicating about the subject of representation with a criminal defendant known to be represented by counsel, even when the defendant initiates contact, the prosecutor only listens, and the prosecutor claims reliance on supervisory advice, federal statutes, or that state disciplinary action is preempted by federal law. The Court affirmed the disciplinary board's recommendation of public censure for G. Paul Howes for multiple violations of New Mexico's Rules of Professional Conduct 16-402 and 16-804(A). First, Rule 16-502(B), which excuses a subordinate lawyer acting on a supervisor's reasonable resolution of an arguable question of professional duty, does not apply. Rule 16-502(A) states a lawyer is bound by the rules regardless of direction, emphasizing individual accountability. There was no "arguable question of professional duty" regarding the no-contact rule, as the ethical duty was clear, and internal DOJ memoranda or later academic debate do not create such a question. Furthermore, Howes' supervisors were primarily concerned with the constitutional admissibility of evidence, not ethical obligations, and were not fully aware of Howes' direct communications with Smith. Second, merely "listening" to a represented party constitutes "communication" under Rule 16-402. The rule's purpose is not just to prevent attorneys from gaining an advantage, but crucially to protect represented persons from their own ill-advised initiatives and to allow their attorney to fulfill the responsibility of protecting them from compromising their case. By allowing Smith to talk without his attorney's knowledge and implicitly encouraging him, Howes violated the rule's spirit and letter. "Communication" is broader than "interrogation," and a prosecutor's willingness to listen sends a compelling message, even if no questions are asked. Third, Howes' communications were not "authorized by law." Case law cited by Howes regarding the suppression of statements deals with constitutional admissibility (Fifth and Sixth Amendments), not ethical violations. While a court might refuse to suppress constitutionally admissible statements obtained unethically, bar disciplinary action is the appropriate remedy. The "authorized by law" exception refers to statutory or constitutional provisions, not internal departmental policies. The general enabling statutes for the Attorney General (28 USC §§ 516, 515(a), 533, 547) do not authorize the Department of Justice to issue policies inconsistent with attorney ethical responsibilities, nor do they grant preemption over state bar rules. Congress explicitly contemplated compliance with state bar ethical standards by DOJ attorneys. Finally, the Supremacy Clause of the U.S. Constitution does not preclude New Mexico's enforcement of its Rules of Professional Conduct in this instance. The purpose of attorney discipline is public protection, upholding the profession's reputation, and ensuring justice administration, not punishment. There is no conflict where "compliance with both federal and state regulations is a physical impossibility" or where state regulation "stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." Congress has not manifested an intent to preempt state ethical rules for federal prosecutors; to the contrary, Congressional subcommittees have expressed disagreement with DOJ attempts to exempt its attorneys. The Court found Howes' actions were intentional, given his repeated willingness to accept calls and his public statement. Although there was no actual injury proven, the potential for injury to the legal system was significant. Aggravating factors included his refusal to acknowledge wrongdoing and his substantial experience as a seasoned attorney. A mitigating factor was the lack of a prior disciplinary record. Considering these factors, public censure was deemed an appropriate sanction.
Analysis:
This case significantly reinforces the authority of state bar associations to discipline federal prosecutors for violating state rules of professional conduct, even when the prosecutors claim to be acting under federal directives or perceived federal law. It establishes a broad interpretation of "communication" under the no-contact rule (Rule 16-402), making clear that merely listening to an initiated conversation from a represented party is sufficient to constitute a violation. The ruling further clarifies that federal enabling statutes for the Department of Justice do not inherently "authorize by law" conduct that would otherwise be unethical under state rules, nor does the Supremacy Clause shield federal attorneys from state disciplinary oversight. This decision holds federal attorneys to the same ethical standards as other lawyers in the jurisdictions where they practice, preventing a "two-tiered" system of justice that could undermine public trust and the adversarial process.
