{ "id": 142238, "name": "In the Matter of G. Paul HOWES, Esq., An Attorney Admitted to Practice Before the Courts of the State of New Mexico", "name_abbreviation": "In re Howes", "decision_date": "1997-05-21", "docket_number": "No. 23414", "first_page": "311", "last_page": "323", "citations": [ { "type": "official", "cite": "123 N.M. 311" }, { "type": "parallel", "cite": "940 P.2d 159" }, { "type": "parallel", "cite": "1997-NMSC-024" } ], "court": { "name_abbreviation": "N.M.", "id": 8835, "name": "Supreme Court of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "471 U.S. 707", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6207741 ], "weight": 3, "year": 1985, "pin_cites": [ { "page": "713" }, { "page": "2375" } ], "opinion_index": 0, "case_paths": [ "/us/471/0707-01" ] }, { "cite": "961 F.Supp. 1288", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 360520 ], "weight": 2, "pin_cites": [ { "page": "1293-1294" } ], "opinion_index": 0, "case_paths": [ "/f-supp/961/1288-01" ] }, { "cite": "106 Stat. 1828", "category": "laws:leg_session", "reporter": "Stat.", "opinion_index": 0 }, { "cite": "93 Stat. 1040", "category": "laws:leg_session", "reporter": "Stat.", "opinion_index": 0 }, { "cite": "441 U.S. 281", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1779842 ], "weight": 5, "year": 1979, "pin_cites": [ { "page": "302" }, { "page": "1717-1718" }, { "page": "308" }, { "page": "1721" } ], "opinion_index": 0, "case_paths": [ "/us/441/0281-01" ] }, { "cite": "28 USC \u00a7\u00a7 516", "category": "laws:leg_statute", "reporter": "U.S.C.", "opinion_index": 0 }, { "cite": "843 F.2d 652", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10545232 ], "opinion_index": 0, "case_paths": [ "/f2d/843/0652-01" ] }, { "cite": "601 F.2d 1000", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 498765 ], "opinion_index": 0, "case_paths": [ "/f2d/601/1000-01" ] }, { "cite": "4 F.3d 1455", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 11941018 ], "weight": 2, "pin_cites": [ { "page": "1464" }, { "page": "1461", "parenthetical": "enabling statutes neither expressly nor impliedly authorize contacts with represented individuals." } ], "opinion_index": 0, "case_paths": [ "/f3d/4/1455-01" ] }, { "cite": "406 U.S. 682", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6173132 ], "weight": 4, "pin_cites": [ { "page": "689" }, { "page": "1882" } ], "opinion_index": 0, "case_paths": [ "/us/406/0682-01" ] }, { "cite": "112 L.Ed.2d 118", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1990, "opinion_index": 0 }, { "cite": "111 S.Ct. 152", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1990, "opinion_index": 0 }, { "cite": "498 U.S. 855", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6400802, 6402456, 6402055, 6401927, 6401256, 6400714, 6402648, 6400940, 6402318, 6401752, 6401424, 6401555, 6400598, 6401048 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/us/498/0855-03", "/us/498/0855-13", "/us/498/0855-11", "/us/498/0855-10", "/us/498/0855-06", "/us/498/0855-02", "/us/498/0855-14", "/us/498/0855-04", "/us/498/0855-12", "/us/498/0855-09", "/us/498/0855-07", "/us/498/0855-08", "/us/498/0855-01", "/us/498/0855-05" ] }, { "cite": "903 F.2d 731", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10538041 ], "weight": 2, "pin_cites": [ { "page": "740" } ], "opinion_index": 0, "case_paths": [ "/f2d/903/0731-01" ] }, { "cite": "518 A.2d 409", "category": "reporters:state_regional", "reporter": "A.2d", "case_ids": [ 7929184 ], "opinion_index": 0, "case_paths": [ "/a2d/518/0409-01" ] }, { "cite": "481 So.2d 1201", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 7611198 ], "weight": 2, "pin_cites": [ { "page": "1206" } ], "opinion_index": 0, "case_paths": [ "/so2d/481/1201-01" ] }, { "cite": "348 N.E.2d 894", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1976, "pin_cites": [ { "page": "899" } ], "opinion_index": 0 }, { "cite": "384 N.Y.S.2d 419", "category": "reporters:state", "reporter": "N.Y.S.2d", "year": 1976, "pin_cites": [ { "page": "423" } ], "opinion_index": 0 }, { "cite": "39 N.Y.2d 479", "category": "reporters:state", "reporter": "N.Y.2d", "case_ids": [ 2323861 ], "year": 1976, "pin_cites": [ { "page": "485" } ], "opinion_index": 0, "case_paths": [ "/ny-2d/39/0479-01" ] }, { "cite": "274 N.W.2d 448", "category": "reporters:state_regional", "reporter": "N.W.2d", "weight": 4, "year": 1979, "pin_cites": [ { "page": "459", "parenthetical": "quoting Justice Levin's dissent" }, { "page": "456" }, { "page": "454-455" }, { "page": "454-455" } ], "opinion_index": 0 }, { "cite": "405 Mich. 273", "category": "reporters:state", "reporter": "Mich.", "case_ids": [ 1957160 ], "weight": 3, "year": 1979, "pin_cites": [ { "parenthetical": "quoting Justice Levin's dissent" } ], "opinion_index": 0, "case_paths": [ "/mich/405/0273-01" ] }, { "cite": "21 Kan.App.2d 262", "category": "reporters:state", "reporter": "Kan. App. 2d", "case_ids": [ 363820 ], "weight": 2, "year": 1995, "pin_cites": [ { "parenthetical": "\"[A] lawyer is not relieved of his or her responsibility for a violation of the rules of professional conduct just because he or she acted at the direction of a supervisor,\" citing the Comment to Rule 5.2" }, { "page": "652", "parenthetical": "\"[A] lawyer is not relieved of his or her responsibility for a violation of the rules of professional conduct just because he or she acted at the direction of a supervisor,\" citing the Comment to Rule 5.2" } ], "opinion_index": 0, "case_paths": [ "/kan-app-2d/21/0262-01" ] }, { "cite": "610 F.Supp. 656", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 470300 ], "pin_cites": [ { "page": "661" } ], "opinion_index": 0, "case_paths": [ "/f-supp/610/0656-01" ] }, { "cite": "131 F.R.D. 75", "category": "reporters:specialty", "reporter": "F.R.D.", "case_ids": [ 7856958 ], "year": 1990, "pin_cites": [ { "page": "84" } ], "opinion_index": 0, "case_paths": [ "/frd/131/0075-01" ] }, { "cite": "54 F.3d 825", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 7412057, 3618297 ], "weight": 2, "year": 1995, "opinion_index": 0, "case_paths": [ "/f3d/54/0825-01", "/us-app-dc/311/0421-01" ] }, { "cite": "847 F.Supp. 964", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 171929 ], "weight": 2, "pin_cites": [ { "page": "969" } ], "opinion_index": 0, "case_paths": [ "/f-supp/847/0964-01" ] }, { "cite": "801 F.Supp. 478", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 7406476 ], "weight": 3, "pin_cites": [ { "page": "488-489", "parenthetical": "quoting from an inscription on the rotunda wall in Washington, D.C." }, { "page": "480" } ], "opinion_index": 0, "case_paths": [ "/f-supp/801/0478-01" ] }, { "cite": "28 USC \u00a7 517", "category": "laws:leg_statute", "reporter": "U.S.C.", "weight": 3, "opinion_index": 0 } ], "analysis": { "cardinality": 1597, "char_count": 44329, "ocr_confidence": 0.718, "pagerank": { "raw": 1.9082172716098814e-07, "percentile": 0.7313681222341534 }, "sha256": "2831e5ec620bb7c5d0661e8ccc7cff266530fc62b08aa3913468cacf58484fd1", "simhash": "1:1f029c7868bbe902", "word_count": 7137 }, "last_updated": "2023-07-14T16:56:16.892471+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "McKINNON, J., not participating." ], "parties": [ "In the Matter of G. Paul HOWES, Esq., An Attorney Admitted to Practice Before the Courts of the State of New Mexico." ], "opinions": [ { "text": "OPINION\nPER CURIAM:\nThis matter came before the Court following disciplinary proceedings conducted pursuant to the Rules Governing Discipline, 17-101 to 17-316 NMRA. Pursuant to Rule 17-316, G. Paul Howes requested that we review the recommendation of the disciplinary board that he be publicly censured for several violations of the Rules of Professional Conduct, 16-101 to 16-805 NMRA. Because of the significant questions of law involved and the existence of an issue of substantial public interest, we requested briefs from the parties. After a thorough review of the record of these proceedings and the arguments and briefs submitted, we adopt the recommendation of the disciplinary board.\nFACTS\nIn early August 1988, Billy Wilson (Wilson) was shot and killed in an apartment house in Washington, D.C. On August 23, 1988, Darryl Smith (defendant) was arrested for this murder and subsequently gave a lengthy videotaped statement to police, in which he admitted being at the scene of the murder but claimed that the murder had actually been committed by a Larry Epps.\nPublic Defender Jaime S. Gardner was appointed to represent defendant, and respondent, who was at all material times an attorney licensed by this Court, represented the United States. At the time of the events giving rise to the charges in this case (November 1988,) respondent practiced law as an Assistant United States Attorney (AUSA) in the Superior Court of the District of Columbia pursuant to the authorization of the United States Attorney General under 28 USC \u00a7 517.\nOn August 24, 1988, defendant appeared for presentment in the Superior Court of the District of Columbia and was ordered held without bond until a preliminary hearing could be held. On September 6, 1988, respondent moved the court to release defendant on his own recognizance pending further investigation of the case. Prior to defendant\u2019s release, respondent indicated to the public defender that he would like to speak with defendant about the case; however, she refused permission unless respondent was willing to offer her client complete immunity, which he was not willing to offer.\nBetween September 26 and October 5, 1988, defendant contacted District of Columbia Metropolitan Police Detective Donald R. Gossage (detective) on several occasions and made statements to him about the Wilson murder and two other murders. The detective told respondent about these statements. Respondent had no personal experience with a defendant who contacted police to discuss his own case, but office policy permitted him to deal with witnesses who were represented by counsel in other cases without notifying their attorneys. Respondent discussed the situation with the chief of the felony section, who told him to advise the detective that if defendant were to initiate further contact with the detective, the detective could listen but that he was not to initiate contact with defendant. There was no discussion about whether to notify the public defender. Respondent relayed the message to the detective and told him as well to make notes of anything defendant might say, so that any inconsistent statements could be used for impeachment purposes.\nThe public defender first learned of these contacts with her client through testimony presented at his preliminary hearing on October 5, 1988. Probable cause was found to charge defendant with the murder of Wilson, and he was remanded to custody and ordered held without bond. Defendant\u2019s attorney complained in open court about the contacts with her client made without her knowledge and asked the court to issue a directive that there be no further contacts with defendant. Respondent stated that he expected no further contacts with defendant but added that \u201cif he wants to call us, we will take his call.\u201d The court issued no directive but observed on the record that the public defender would undoubtedly instruct her client that such contacts were not in his best interest.\nBetween October 5 and November 1,1988, however, defendant continued his efforts to contact the detective from the jail. He left messages for the detective on his beeper and even spoke with him on several occasions regarding the Wilson murder and the other two cases (wherein he was not charged and, therefore, not represented by counsel.) Respondent was aware that defendant was talking about the Wilson murder to the detective but did not notify the public defender or obtain her permission for the detective to discuss the case with her client.\nOn November 18, 1988, the detective was in respondent\u2019s office working with him on the Wilson murder case when respondent himself received a call from defendant on his private line. Respondent had never given his private number to defendant, although he had given it to the detective. At respondent\u2019s request, the detective listened in on an extension. Although defendant was advised that he did not have to speak with defendant and the detective and that his lawyer would not be happy, he proceeded to talk about the Wilson case for approximately six minutes while respondent and the detective listened and took notes. Defendant called back about ten minutes later and spoke with respondent and the detective for another fifteen minutes, although he was again reminded that the public defender would be unhappy with him. At the conclusion of this call, the detective agreed to visit defendant at the jail. Although respondent\u2019s notes indicate that defendant now was focusing almost exclusively on the Wilson murder, the public defender was advised neither of the calls nor of the impending visit with her client.\nThe detective had been advised by respondent that because defendant was initiating the calls, the constitutionality and the voluntariness of the statements were established and that he should \u201clet Darryl talk\u201d but refrain from posing questions of his own. After the call to his own office and the appointment for the detective to visit personally with defendant, respondent consulted with the chief and deputy chief of the felony section, who advised him that the detective should take a partner with him to the jail and give defendant his Miranda warnings before proceeding with the interview.\nWhile the deputy chief recalled that there may have been some discussion of the ethical proprieties of communicating directly with defendant, the chief of the felony section acknowledged in his testimony that his primary concern in advising respondent was whether the evidence would be constitutionally admissible. The deputy chief did not recollect that respondent advised either himself or the chief that he had personally spoken with defendant. It is also clear from the record that the chiefs advice as to any ethical considerations was more directed at the contacts the detective was having with defendant rather than to any calls respondent might be receiving. The chief acknowledged that his understanding of the rules regarding professional responsibility would probably not have affected his advice, because he \u201cdidn\u2019t think the D.C. bar rules had much to say about how the police behaved.\u201d\nOn November 21,1988, the detective and a partner visited with defendant at the jail and gave Miranda warnings, but defendant refused to sign the form because, he said, it would make his lawyer angry. The meeting was terminated.\nOn November 25 or 26, 1988, respondent received four more collect calls from defendant from the jail, all of which he accepted. He reminded defendant that his attorney had already complained to the court about his contacts with representatives of the government but permitted defendant to continue to speak with him nonetheless. Respondent asked no questions but listened to everything defendant had to say. While his notes again indicate that defendant was now speaking only of the Wilson murder, respondent did not advise defendant\u2019s attorney of these calls.\nDefendant was indicted for the murder of Wilson on December 8, 1988. The public defender subsequently sought to have defendant\u2019s statements to respondent and the detective suppressed and/or the indictment dismissed on the basis of prosecutorial misconduct. The motion was denied by written order dated July 10, 1989, but the judge referred the matter of respondent\u2019s possible violation of DR 7-104 of the Code of Professional Responsibility to the District of Columbia Board of Professional Responsibility.\nThe Board of Professional Responsibility for the District of Columbia at that time had disciplinary jurisdiction over any attorney who engaged in the practice of law in the District of Columbia on a pro hac vice basis, but in 1988 the relevant rule did not apply to an AUSA practicing pursuant to 28 USC \u00a7 517. For this reason, the ease was referred to the office of New Mexico\u2019s disciplinary counsel in May 1990.\nRule 16-805, NMRA subjects a lawyer admitted to practice in New Mexico to the disciplinary authority of this Court, even though he or she may be engaged in practice elsewhere. Both respondent and his employer, the United States Department of Justice (DOJ), filed federal suits challenging this Court\u2019s jurisdiction to conduct this disciplinary proceeding. Both suits were resolved in favor of this court\u2019s jurisdiction. See 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), affd 54 F.3d 825 (App.D.C. 1995). These opinions have discussed some, but not all, of the legal principles we now address.\nThe hearing committee and the disciplinary board concluded that respondent had violated Rule 16-402 by directly communicating about the subject of the representation with a party he knew to be represented by another lawyer in the matter without the consent of the other lawyer and without authorization of law to do so. The committee and the board panel also concluded that respondent had violated Rule 16-804(A) by knowingly communicating with defendant through the detective and by knowingly assisting and inducing the detective to communicate with defendant.\nThe issues raised by respondent in his appeal are (a) whether he was entitled to rely on the advice of his supervisor and thus should be excused for any violation of Rule 16-402 under the provisions of Rule 16-502(B); (b) whether he \u201ccommunicated\u201d with defendant within the meaning of Rule 16-402; (c) whether any communication that occurred was \u201cauthorized by law;\u201d (d) whether his actions were authorized under federal Constitutional principles that override New Mexico\u2019s Rules of Professional Conduct; and (e) whether, even if a violation occurred, disciplinary action should be taken against him.\nDISCUSSION\nI. The applicability of Rule 16-502(B) to respondent\u2019s actions.\nRespondent first argues that New Mexico\u2019s Rule 16-502(B) should control the resolution of this case. This rule states that \u201ca subordinate lawyer does not violate the Rules of Professional Conduct if that lawyer acts in accordance with a supervisory lawyer\u2019s reasonable resolution of an arguable question of professional duty.\u201d It is respondent\u2019s contention that he was a \u201csubordinate lawyer\u201d within the meaning of this rule and that, as such, he was not only entitled but also obligated to rely upon the advice given to him by the chief and deputy chief of the felony section with respect to the calls generated by defendant. Consequently, he asserts, his actions must be excused. Respondent\u2019s position fails for several reasons.\nFirst of all, Rule 16-502(B) must be read in connection with Rule 16-502(A), which directs that \u201ca lawyer is bound by the Rules of Professional Conduct notwithstanding that the lawyer acted at the direction of another person.\u201d The ABA Comment to Model Rule 5.2 makes it clear that the rule, taken as a whole, is not meant to immunize attorneys from accountability for their misconduct.\nRespondent has cited no eases, and we are aware of none, which hold for the proposition that an attorney may be exonerated from the consequences of his or her misconduct simply on the basis that the unethical acts were committed upon another\u2019s instructions or authorization. The few reported cases on this topic uphold the theory that an attorney is always answerable for his or her own actions. As one court has noted:\nWhen others are involved in misconduct with counsel, degrees of culpability may vary, but ultimate responsibility does not. Counsel simply cannot delegate to others their own duty to act responsibly ... [in] the end, each member of the bar is an officer of the court. His or her first duty is not to the client or the senior partner, but to the administration of justice.\nRoberts v. Lyons, 131 F.R.D. 75, 84 (E.D.Pa. 1990) citing Cobum Optical Indus., Inc. v. Cilco, 610 F.Supp. 656, 661 (M.D.N.C.1985); see also McCurdy v. Kansas Dep\u2019t of Transp., 21 Kan.App.2d 262, 898 P.2d 650, 652 (1995) (\u201c[A] lawyer is not relieved of his or her responsibility for a violation of the rules of professional conduct just because he or she acted at the direction of a supervisor,\u201d citing the Comment to Rule 5.2).\nEven more compelling, however, is that in this instance there was no \u201carguable question of professional duty\u201d needing resolution. Respondent has argued that various memoranda generated in-house at the Department of Justice prior to his actions took the position that federal prosecutors are not bound by state disciplinary rules prohibiting communication with represented persons and has submitted these documents as exhibits to the record. We are not persuaded that an attorney\u2019s employer, even though that employer may be an attorney or an arm of the United States government, can create an \u201carguable question of professional duty\u201d within the meaning of Rule 16-502(B) by the simple mechanism of unilaterally declaring that a particular rule of conduct is burdensome and should not apply to its employees.\nIn further support of his position that such an arguable question exists, respondent has cited numerous articles on the subject of whether or not federal prosecutors should be bound by state ethical rules. While we recognize that a debate currently rages regarding the applicability of ABA Model Rule 4.2 to federal prosecutors, all of the articles cited by respondent were published between 1990 and 1996 and were no doubt occasioned in part by former Attorney General Richard Thornburgh\u2019s Memorandum of June 8, 1989, which discussed the applicability of Rule 4.2 to federal prosecutors and which itself was issued after respondent\u2019s acts of misconduct. Respondent\u2019s duty to refrain from communicating with a represented criminal defendant is not subject to argument. According to the ABA Comment to Model Rule 5.2, if a question of ethical duty can be answered in only one way, \u201cthe duty of both lawyers is clear and they are equally responsible for fulfilling it.\u201d\nEven if one were to accept the premise that an arguable question of professional duty with respect to Rule 16-402 existed in November 1988, it is apparent from the record of these proceedings that the discussions respondent had with the chief of the felony section regarding defendant\u2019s calls bore only a tangential relationship to respondent\u2019s ethical duties. The chief testified under oath that his \u201cprimary concern as a supervisor was whether the evidence was constitutionally admissible\u201d and that he \u201cwould have focused on the constitutional issues involved in contacts between a defendant and a law enforcement representative; that is, I would have been focusing on his Fifth Amendment right to be silent, his Sixth Amendment right to counsel.\u201d Additionally, it is not clear from the testimony of the chief and deputy chief that they were even aware that respondent himself was communicating with defendant. Clearly respondent was not seeking advice as to his ethical obligations to defendant and to the public defender; any passing consideration of these duties which may have arisen was secondary to the primary question of how to obtain admissible evidence from defendant.\nRule 16-502 cannot and does not excuse respondent\u2019s conduct.\nII. Whether respondent \u201ccommunicated\u201d with defendant within the meaning of Rule 16-402.\nRespondent next disputes the hearing committee\u2019s conclusion that a lawyer \u201ccommunicates\u201d with a represented party when he willingly listens to what that person has to say. He argues that he did not violate Rule 16-402 because the evidence in the case shows that he simply listened to defendant. Since there was no questioning of defendant, he reasons, he did not \u201ccommunicate\u201d with defendant. We disagree.\nWhile certainly one purpose of Rule 16-402 is to prevent attorneys from utilizing their legal skills to gain an advantage over an unsophisticated lay person, an equally important purpose is to protect a person represented by counsel \u201cnot only from the approaches of his adversary\u2019s lawyer, but from the folly of his own well-meaning initiatives and the generally unfortunate consequences of his ignorance.\u201d People v. Green, 405 Mich. 273, 274 N.W.2d 448, 459 (1979) (quoting Justice Levin\u2019s dissent).\nThe law and Rule 16-402 also recognize that once an attorney has been retained or appointed to represent a litigant, that attorney\u2019s responsibility is to act on behalf of the client and to protect the client from compromising his or her ease by inadvertently waiving a viable defense or from disclosing privileged information. The attorney cannot fulfill this responsibility when opposing counsel freely comes into contact with the client without the attorney\u2019s knowledge.\nBy not contacting defendant\u2019s attorney and by encouraging defendant to talk to him and to the detective without her advice, respondent violated Rule 16-402 and the principles behind it.\nThe principle is not so much, important as that is, to preserve the civilized decencies, but to protect the individual, often ignorant and uneducated, and always in fear, when faced with the coercive police power of the State. The right to the continued advice of a lawyer, already retained or assigned, is his real protection against an abuse of power by the organized State. It is more important than the preinterrogation warnings given to defendants in custody. These warnings often provide only a feeble opportunity to obtain a lawyer, because the suspect or accused is required to determine his need, unadvised by anyone who has his interests at heart. The danger is not only the risk of unwise waivers of the privilege against self-incrimination and of the right to counsel, but the more significant risk of inaccurate, sometimes false, and inevitably incomplete descriptions of the events described.\nPeople v. Hobson, 39 N.Y.2d 479, 485, 384 N.Y.S.2d 419, 423, 348 N.E.2d 894, 899 (1976).\nTo argue that one does not violate Rule 16-402 if one does not ask questions or impart information borders on sophistry. People do not compromise their positions or waive their defenses by listening to an attorney; they do so by talking while the attorney listens.\n\u201cCommunication\u201d and \u201cinterrogation\u201d are not synonymous, and it is \u201ccommunication\u201d that is prohibited by Rule 16-402. One can communicate interest and concern simply by indicating a willingness to listen. Since criminal defendants who are in custody often attempt to seek out and explain themselves to persons in authority under the generally misguided notion that they can extricate themselves from an unfortunate situation, the apparent willingness of a detective and a prosecutor to consider a defendant\u2019s version of the facts can be a particularly compelling message. \u201cThe influence of the prosecutor\u2019s presence is immeasurable.\u201d People v. Green, 405 Mich. 273, 274 N.W.2d 448, 456 (quoting Justice Moody, concurring in part and dissenting in part). Respondent and the detective were well aware that defendant was attempting to discuss the evidence in his own case in order to help himself and they used his false hope to their advantage. Even if they asked no questions of defendant, by granting him an audience they tacitly encouraged him to keep talking.\nWhile a lack of overreaching by a prosecutor in this situation may be a mitigating factor, it does not excuse compliance with the standard prescribed by Rule 16-402. In People v. Green, the prosecutor merely listened to and took notes on the statement of a murder suspect (at the suspect\u2019s request) and, at the end of the statement, simply asked the man whether he had been telling the whole truth. Although the statement was found to be voluntary, the attorney\u2019s violation of Rule 7-104(A)(l) was recognized by the court. A similar violation of the rule occurred in Suarez v. State, 481 So.2d 1201 (Fla.1985), where the prosecuting attorney \u201cdid little except listen to what the defendant had to say and take notes.\u201d Id. at 1206 (quoting Green, 274 N.W.2d at 454-455).\nWe therefore reject respondent\u2019s argument that an attorney does not violate Rule 16-104 unless he or she is an active participant in a conversation with a represented opponent regarding the subject matter of the representation.\nIII. Whether respondent communications were \u201cauthorized by law\u201d within the meaning of Rule 16-402.\nRespondent next contends that even if he is found to have \u201ccommunicated\u201d with defendant, there is no violation of Rule 16-402 because any communication he might have had was \u201cauthorized by law.\u201d In support of this position, he asserts that his conduct would have been authorized under case law, under other states\u2019 interpretations of their disciplinary rules, and/or under statutes delegating to the Attorney General the responsibility for conducting criminal investigations and prosecutions (and the interpretations the DOJ has placed on these statutes.)\nThe cases cited by respondent in support of his first theory do little to bolster his position, as the cases concern the issue of whether statements made to a prosecutor by a represented defendant should be suppressed rather than the issue of whether the prosecutor violated the ethical prohibition against contact with a represented party. As an example, respondent places great reliance on the decision of the District of Columbia Court of Appeals in United States v. Rorie, 518 A.2d 409 (D.C.App.1986), a case in which the chief of the felony section had personally participated. In Rorie, the appellate court overturned the trial court\u2019s exclusion of unsolicited statements made to a detective by a represented criminal defendant. The decision is based upon a Sixth Amendment analysis of the facts and makes no mention whatsoever of rules governing attorney ethical conduct.\nAdditionally, many of the suppression decisions relied upon by respondent involve noncustodial, pre-charging contacts with represented criminal defendants. Respondent cites United States v. Ryans, 903 F.2d 731 (10th Cir.), cert. denied, 498 U.S. 855, 111 S.Ct. 152, 112 L.Ed.2d 118 (1990), for the proposition that federal courts have declined to hold that otherwise legitimate law enforcement communications with represented persons violate ethical obligations. In Ryans, however, the Tenth Circuit noted that the rule against unauthorized contact would apply when one has been \u201ccharged, arrested or indicted or otherwise \u2018faced with the prosecutorial forces of organized society, and immersed in the intricacies of substantive and procedural criminal law.\u2019 \u201d 903 F.2d at 740 (quoting Kirby v. Illinois, 406 U.S. 682, 689, 92 S.Ct. 1877, 1882, 32 L.Ed.2d 411 [1972]). The Court explained that \u201cwhen the government\u2019s role shifts from investigation to accusation, however, then the balance of the interests at stake shifts. Clearly, if adversary proceedings had begun here, this would be a different case.\u201d Id. In the present case, at the time of respondent\u2019s communications with defendant, defendant had been arrested, a preliminary hearing had been held, probable cause had been found, and defendant was in custody being held without bond.\nRespondent\u2019s reliance upon the holdings in suppression decisions as justification for his conduct is misplaced, as these cases generally do not define an attorney\u2019s ethical responsibilities. If they mention disciplinary rules at all, it is primarily to make clear that the rules are not ordinarily available to a criminal defendant in fashioning a personal remedy for himself or herself. As recently noted by the Ninth Circuit Court of Appeals in reversing a lower court\u2019s dismissal of an indictment because of a prosecutor\u2019s unauthorized contact with a represented defendant:\nWe are sensitive to the district court\u2019s concerns that none of the alternative sanctions available to it are as certain to impress the government with our resoluteness in holding prosecutors to the ethical standards which regulate the profession as a whole. At the same time, we are confident that, when there is no showing of substantial prejudice to the defendant, lesser sanctions, such as holding the prosecutor in contempt or referral to the state bar for disciplinary proceedings, can be adequate to discipline and punish government attorneys who attempt to circumvent the standards of their profession.\nUnited States v. Lopez, 4 F.3d 1455, 1464 (9th Cir.1993) (citations omitted).\nRespondent has chosen to ignore the body of case law which has held that even where an attorney\u2019s actions do not violate constitutional standards, they may still be in violation of Rule 7-104(A) and/or Rule 16-402. The exclusionary rule is available to courts when a defendant\u2019s constitutional rights have been trampled, , but many courts have recognized that the public would be ill-served if the misconduct of an individual attorney permitted an otherwise guilty person to go free. A reversal of a defendant\u2019s conviction for a prosecutor\u2019s violation of Rule 7-104(A)(l) \u201cwould constitute reprehensible \u2018overkill,\u201d\u2019 and \u201cbar disciplinary action directed against the offending attorney would be a more appropriate response and would serve as a more effective deterrent than the indirect sanction of the exclusionary rule.\u201d People v. Green, 405 Mich. 273, 274 N.W.2d 448, 454-455; see also United States v. Par-tin, 601 F.2d 1000 (9th Cir.1979); United States v. Dennis, 843 F.2d 652 (2d Cir.1988).\nWe disagree with respondent\u2019s argument that his communications with the defendant should be deemed authorized pursuant to comments to disciplinary rules in other jurisdictions, most of which were not even in effect at the time of his misconduct. We particularly reject the suggestion that his actions should be viewed in light of a Comment to the District of Columbia\u2019s Rule 7-104 adopted in 1991 (three years after his misconduct,) given the fact that early in these proceedings he objected strenuously to disciplinary counsel\u2019s having charged him with a violation of that rule as well as ours and successfully argued to the hearing committee that the Board and this Court had no authority to enforce District of Columbia\u2019s rules and that those particular allegations against him should be dismissed. He now claims to have acted in accordance with the District of Columbia\u2019s rule and the 1991 Comment thereto.\nHad the Comment to the District of Columbia\u2019s rule been in effect in 1988, respondent\u2019s argument might have some merit under our Rule 16-805. This rule states that a New Mexico attorney is subject to this Court\u2019s disciplinary authority even though engaged in practice elsewhere but recognizes that \u201cif the rules of professional conduct in the two jurisdictions differ, principles of conflict of laws may apply.\u201d Since even respondent admits in his brief that the District of Columbia\u2019s rule and New Mexico\u2019s rule were \u201cidentical in all pertinent respects\u201d in 1988, however, we need not address this argument.\nRespondent\u2019s third purported justification for the position that his communications were \u201cauthorized by law\u201d is that Congress has authorized the Attorney General to direct and supervise the conduct of DOJ prosecutors and that he acted in compliance with DOJ policies. We question whether 28 USC \u00a7\u00a7 516, 515(a), 533 and 547 empower the Attorney General and/or the DOJ to adopt policies that are inconsistent with an attorney\u2019s ethical responsibilities. Consequently, we are not persuaded that those policies rise to the level of \u201claw\u201d within the meaning of Rule 16-102.\nFor regulations issued by an agency to have the force of law, they must be promulgated pursuant to statutory authority. Chrysler Corp. v. Brown, 441 U.S. 281, 302, 99 S.Ct. 1705, 1717-1718, 60 L.Ed.2d 208 (1979). While the grant of authority need not be specific, a reviewing court must \u201creasonably be able to conclude that the grant of authority contemplates the regulations issued.\u201d Id. at 308, 99 S.Ct. at 1721. W\u00e9 cannot reasonably conclude that the general enabling statutes cited by respondent authorize the DOJ to issue policies or regulations that absolve its attorneys from the responsibility to comply with ethical regulations promulgated by the courts granting them their licenses and responsible for their conduct as officers of the court.\nAs noted by one court:\nThe Department of Justice Appropriation Authorization Act (\u201cDOJ Act\u201d) requires all attorneys in the Department of Justice to \u201cbe duly licensed and authorized to practice as an attorney under the laws of a State, territory, or the District of Columbia.\u201d See Pub.L. No. 96-132, 93 Stat. 1040, 1044 (1979) (appropriations for fiscal year 1980); see also Pub.L. No. 102-395, 106 Stat. 1828, 1838, \u00a7 102(a) (1992) (appropriations for fiscal year 1993, reenacting provisions of Pub.L. 96-132). To be \u201cduly licensed and authorized to practice as an attorney,\u201d a member of a state bar must of necessity comply with that state\u2019s code of professional responsibility. Congress therefore clearly contemplated compliance with state bar ethical standards by attorneys practicing in the Department of Justice.\nUnited States v. Ferrara, 847 F.Supp. 964, 969 (D.C.D.C.1993), affd 54 F.3d 825 (App. D.C.1995); see also United States ex rel. O\u2019Keefe v. McDonnell Douglas Carp., 961 F.Supp. 1288, 1293-1294 (E.D.Mo.1997) (general enabling statutes do not authorize DOJ to issue regulations exempting its attorneys from requirements of state ethical rules) and U.S. v. Lopez, 4 F.3d 1455, 1461 (9th Cir. 1993) (enabling statutes neither expressly nor impliedly authorize contacts with represented individuals.)\nUnder none of the theories advanced by respondent can it be said that his communications with defendant fell within the \u201cauthorized by law\u201d exception to Rule 16-402.\nIV. Whether the Supremacy Clause of the United States Constitution precludes our enforcement of New Mexico\u2019s Rules of Professional Conduct in this instance.\nRespondent next raises as a defense the same Supremacy Clause argument that has been decided adversely to him and his employer (DOJ) by two other courts of competent jurisdiction. See In re Doe and U.S. v. Ferrara. While we recognize that these decisions are not binding on this Court, in view of our holding that respondent was not authorized by any federal law to undertake the actions which he did, we choose to follow the reasoning of Judges Burciaga and Johnson in those cases and reject as well the argument that the Supremacy Clause bars us from regulating respondent\u2019s conduct.\nAt the outset of his argument, respondent claims that as a federal official he \u201ccannot be punished for actions within his official duty.\u201d We remind respondent that our purpose in disciplining attorneys for violating our Rules of Professional Conduct is not the punishment of the attorney but \u201cthe protection of the public, the profession, and the administration of justice.\u201d Preface, Rules Governing Discipline, NMRA 17-101 to 17-316 NMRA. Our duty to ensure that the safety of the public, the reputation of the profession, and the orderly administration of justice are not undermined by the actions of an attorney licensed by this Court should in no way interfere with respondent\u2019s duty to see that the laws of the United States are \u201cfaithfully executed.\u201d As noted by Judge Burciaga:\nCertainly, if permitted to act unethically any attorney could gain advantage over his or her adversary. But to prevail in litigation by unfair means not only rewards the unscrupulous but relegates justice to a hollow victory. This is exactly what the codes of ethics is designed to prevent ... \u201cthe United States wins its case whenever justice is done one of its citizens in the courts.\u201d\nIn re Doe, 801 F.Supp. at 488-489 (quoting from an inscription on the rotunda wall in Washington, D.C.).\nThe conflict between our ethical rules and respondent\u2019s federal responsibility to investigate and prosecute violations of the law, essential to a Supremacy Clause defense, is simply not present in this instance. Such a conflict arises if \u201ccompliance with both federal and state regulations is a physical impossibility\u201d or where the state regulation \u201cstands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.\u201d Hillsborough County v. Automated Med. Lab., Inc., 471 U.S. 707, 713, 105 S.Ct. 2371, 2375, 85 L.Ed.2d 714 (1985). Respondent has not cited and cannot point to any federal law which requires him to carry out his duties as an AUSA in an unethical manner or to any intent of Congress that he even be permitted to do so.\nTo the contrary, the intent of Congress still appears to be that respondent and others in his position should adhere to the ethical standards prescribed by their licensing courts. In 1990, the House Subcommittee on Government Information, Justice, and Agriculture conducted hearings on the innovative efforts by the DOJ to exclude its attorneys from the obligation to abide by state ethical rules. The Subcommittee concluded in its report:\nWe disagree with the Attorney General\u2019s attempts to exempt departmental attorneys from compliance with the requirements adopted by the State bars to which they belong and in the rules before the Federal courts before which they appear ... we are not persuaded of a need to exempt Departmental attorneys from Model Rule 4.2 as adopted by State bars and Federal Courts.\nFederal Prosecutorial Authority in a Changing Legal Environment: More Attention Required, H.R.Rep. No. 986, 101st Cong., 2d. Sess. at 32 (1990).\nWhile Congress unquestionably has the authority to preempt state regulations if it chooses to do so, it clearly has yet to manifest such an intent with respect to Rule 16-402. Respondent\u2019s Supremacy Clause defense therefore must fail.\nV. Appropriate Sanction.\nFinally, respondent asserts that even if we reject his other arguments and find that he has in fact violated our Rules of Professional Conduct, which we have done, he should not be disciplined for his offenses (a) because he \u201cwas simply caught in a dispute between the federal government and the state bar associations\u201d and (b) because the conduct at issue could not recur, as the DOJ has promulgated a new policy which will henceforth govern contacts between AUSAs and represented defendants. See 28 C.F.R. Part 77.\nWe have noted that there was no extant controversy with respect to Rule 16-402 at the time of respondent\u2019s actions. The fact that former Attorney General Richard Thornburgh and his successors at the DOJ were part of and continued to engage in such a dispute does not excuse respondent\u2019s conduct. While the question of whether 28 C.F.R. Part 77 will control future contacts between DOJ attorneys and represented defendants is not before us, we note that within the past few months at least one court has rejected this most recent effort by the DOJ to exempt its attorney employees from the requirements of Model Rule 4.2 and related rules. See United States ex rel. O\u2019Keefe v. McDonnell Douglas Corp., 961 F.Supp. 1288 (E.D.Mo.1997). Thus it remains to be seen whether this latest DOJ \u201cregulation\u201d resolves this issue.\nThe ABA Standards for Imposing Lawyer Sanction (Standard 3.0) suggest that the following factors should be considered in determining what sanction should be imposed after a finding of attorney misconduct: (1) the duty violated; (2) .the lawyer\u2019s mental state; (3) the actual or potential injury caused by the lawyer\u2019s misconduct; and (4) the existence of aggravating or mitigating factors.\nThe duty violated in this instance involves an attorney\u2019s duty to the legal system not to communicate improperly with those who are represented by other attorneys, one of the most elementary premises of the adversary system. Respondent had inappropriate contacts with the defendant directly on at least six (6) separate occasions and on numerous other occasions through an intermediary (the detective). Although defendant initiated the contacts, respondent\u2019s repeated willingness to accept defendant\u2019s calls and his statement in open court (after defendant\u2019s attorney had objected to contacts between defendant and the detective outside of her presence) to the effect that \u201cIf he [defendant] wants to call us, we will take his call\u201d indicate that he encouraged and perpetuated the communications and that his actions were intentional rather than the result of negligence or ignorance.\nThere is no evidence that the contacts resulted in actual injury to either defendant or the legal process in general. The potential for injury, however, is obvious. As Judge Burciaga observed:\nWhen a government lawyer, with enormous resources at his or her disposal, abuses this power and ignores ethical standards, he or she not only undermines the public trust, .but inflicts damage beyond calculation to our system of justice. This alone compels the responsible and ethical exercise of this power.\nIn re Doe, 801 F.Supp. at 480.\nWhile the fact that respondent does not have a prior disciplinary record may be considered as a mitigating factor (ABA Standard 9.32[a]), there are several factors in aggravation of his misconduct. Most notable is the fact that he refuses to this day to accept or even recognize the wrongful nature of his conduct. (ABA Standard 9.22[g]). When asked at one point whether, if put in the same position again he would do the same thing, respondent replied in the negative. His answer, however, appears to have been based more upon his annoyance at having become the subject of disciplinary charges than upon any remorse for his actions, as he went on to say:\nI would never put myself in a position again to be a guinea pig, a test case, whether or not [the chief of the felony section] gave me the right directions, whether or not the Attorney General or the Thornburgh Memorandum, whether or not the District of Columbia Court of Appeals two years later said what happened was \u2014 if it was constitutional, it was proper. I would never again put myself in a position where so many authorities would second-guess what I thought I had done reasonably and within the bounds of my professional responsibilities.\nRespondent then proceeded to remove any remaining doubt about whether or not he acknowledges that his actions were improper:\n[W]hen you asked me if I would ever do this again, my answer was not to say that what I did then was wrong. I believe I was ethical and proper under those circumstances. And I would, given the same circumstances today, without any other changes, if this happened again, I would do the same thing. I wouldn\u2019t change.\nWe believe respondent\u2019s comments indicate a lack of appreciation for the importance of the duty at issue. We are not persuaded that he \u201cwas simply caught in a dispute.\u201d\nA second aggravating factor is that at the time of this incident, respondent had substantial experience in the practice of law. (ABA Standard 9.22[i]). He had graduated from the University of Virginia School of Law in 1978 and had clerked for two Federal judges before joining the U.S. Attorney\u2019s Office in 1984. Both the hearing committee and the disciplinary board found that at the time of these actions respondent was \u201can accomplished, seasoned, and sophisticated attorney.\u201d His violations of Rules 16^102 and 16-804(A) were due neither to ignorance nor incompetence.\nThe ABA Standards suggest that (absent aggravating or mitigating circumstances) \u201cReprimand is generally appropriate when a lawyer is negligent in determining whether it is proper to engage in communication with an individual in the legal system, and causes injury or potential injury to a party or interference or potential interference with the outcome of a legal proceeding.\u201d ABA Standards for Imposing Lawyer Sanction (Standard 6.33).\nStandard 2.5 notes that \u201creprimand\u201d is \u201calso known as censure or public censure\u201d and defines it as \u201ca form of public discipline which declares the conduct of the lawyer improper, but does not limit the lawyer\u2019s right to practice.\u201d The \u201cCommentary\u201d to Standard 2.5 points out that this sanction \u201cemphasizes the concern of the court with all lawyer misconduct\u201d and \u201cserves the useful purpose of identifying lawyers who have violated ethical standards and, if accompanied by a published opinion, educates members of the bar as to those standards.\u201d\nWe hope that members of the New Mexico bar already appreciate the importance of their professional obligations under Rules 16-402 and 16-804(A) NMRA. We trust that for most, if not all, New Mexico lawyers, this opinion discusses no new legal principle. Nonetheless, this opinion will serve to affirm that our rules apply to all New Mexico lawyers, wherever they practice, and that we intend to continue to enforce our rules.\nIT IS THEREFORE ORDERED that G. Paul Howes be, and he hereby is, publicly censured pursuant to Rule 17-206(A)(4) NMRA for his numerous and intentional violations of Rules 16-402 and 16-804(A).\nIT IS FURTHER ORDERED that Howes shall reimburse the disciplinary board the costs of this disciplinary proceeding in the amount of $8,663.52 on or before November 19, 1997, with interest accruing thereafter on any balance due at a rate of 8%% per annum. Additionally, Howes is assessed the board\u2019s costs and attorney fees on appeal in an amount to be determined by this Court after reviewing a statement of fees and costs on appeal to be submitted by disciplinary counsel on or before June 19, 1997. All costs assessed in this matter shall be reduced to a transcript of judgment.\nIT IS SO ORDERED.\nMcKINNON, J., not participating.\n. 28 USC \u00a7 517 directs that \u201cthe Solicitor General, or any other officer of the Department of Justice, may be sent to any State or district in the United States to attend to the interests of the United States in a suit pending in a court of the United States, or in a court of a State, or to attend to any other interest of the United States.\u201d\n. At all relevant times, Rule 7 \u2014 104(A)(1) of the Code of Professional Responsibility in the District of Columbia read as follows:\n\"During the course of his representation of a client a lawyer shall not communicate or cause another to communicate on the subject of the representation with a party he knows to be represented by a lawyer in that matter unless he has the prior consent of the lawyer representing the other party or is authorized by law to do so.\u201d\nAt all relevant times, Rule 16-402 of the Rules of Professional Conduct in New Mexico read as follows:\n\"In representing a client, a lawyer shall not communicate about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized by law to do so ...\u201d The prohibitions contained in the Rules are\nessentially identical.\n. The ABA Comment begins with the admonition that \u201calthough a lawyer is not relieved of responsibility for a violation by the fact that the lawyer acted at the direction of a supervisor, that fact may be relevant in determining whether a lawyer had the knowledge required to render conduct a violation of the Rules.\u201d", "type": "majority", "author": "PER CURIAM:" } ], "attorneys": [ "Virginia L. Ferrara, Chief Disciplinary Counsel, Albuquerque, Ray Twohig, Special Assistant Bar Counsel, Albuquerque, for Disciplinary Board.", "Department of Justice, Eric H. Holder, Jr., Charles F. Flynn, W. Mark Nebeker, Washington, DC, Robert J. Gorenee, Albuquerque, for Respondent." ], "corrections": "", "head_matter": "1997-NMSC-024\n940 P.2d 159\nIn the Matter of G. Paul HOWES, Esq., An Attorney Admitted to Practice Before the Courts of the State of New Mexico.\nNo. 23414.\nSupreme Court of New Mexico.\nMay 21, 1997.\nVirginia L. Ferrara, Chief Disciplinary Counsel, Albuquerque, Ray Twohig, Special Assistant Bar Counsel, Albuquerque, for Disciplinary Board.\nDepartment of Justice, Eric H. Holder, Jr., Charles F. Flynn, W. Mark Nebeker, Washington, DC, Robert J. Gorenee, Albuquerque, for Respondent." }, "file_name": "0311-01", "first_page_order": 355, "last_page_order": 367 }