CURRENT MONTH (October 2017)

Professional Responsibility

Preemption of Ethics Rule Forbidding Prosecutors from Subpoenaing Lawyers to Provide Information about Past or Present Clients

By Keith R. Fisher, National Center for State Courts

On October 2 the U.S. Supreme Court denied certiorari in a Tenth Circuit case invalidating as preempted New Mexico Rule 16-308(E), derived from ABA Model Rule 3.8(e), subjecting prosecutors to professional discipline if “in a grand jury or other criminal proceeding” they subpoena other lawyers to provide information about their past or present clients, subject to exceptions for lack of privilege or necessity. Most states have a similar disciplinary rule in place, and the rule is also reflected in the rules of federal district courts that incorporate state rules of professional conduct.

Years earlier, the Tenth Circuit had upheld the Colorado version of this rule as binding on federal prosecutors and not preempted, all in the context of criminal trials, but did not have occasion to consider the grand jury context. The more recent decision held the rule preempted with respect to grand jury proceedings, notwithstanding 28 U.S.C. § 530B(a), which was enacted by Congress to address this situation and which provides that federal prosecutors “shall be subject to State laws and rules, and local Federal court rules, governing attorneys in each State where such attorney engages in that attorney’s duties, to the same extent and in the same manner as other attorneys in that State.”

Failure to Notify Counsel of Inadvertent Disclosure of Privileged Information

By Keith R. Fisher, National Center for State Courts

A federal judge sitting in diversity held recently that inadvertent disclosure in discovery resulting from an error in using a file-sharing site did not waive attorney-client privilege or work product protection. The court found that receiving counsel had an obligation to notify opposing counsel of the disclosure or, at a minimum, to bring the matter to the court under seal to ascertain whether waiver had occurred. Failure to do so, the court ruled, violated Virginia’s legal ethics standards and justified evidentiary sanctions but was not sufficient to require disqualification of the law firm in question.

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