Unauthorized Subpoenas Draw Sanctions In New Mexico

The New Mexico Supreme Court sanctioned two prosecutors for improperly issuing investigative subpoenas

This disciplinary action involves Respondents Emilio Jacob Chavez, Deputy  District Attorney for the Eighth Judicial District, and his supervisor Donald A.  Gallegos, District Attorney for the Eighth Judicial District. Over the course of two years, Chavez engaged in a pattern of issuing investigative subpoenas unconnected  to court or grand jury proceedings. Gallegos authorized the issuance of a subset of the subpoenas, but was unaware of most of them.

We hold that Chavez violated Rule 16-404(A) NMRA of the Rules of Professional Conduct, and that Gallegos violated Rules 16-404(A) and 16-501(C)  NMRA of the Rules of Professional Conduct. This opinion clarifies an issue of  fundamental importance: it is unlawful for a court or an officer of the court to issue any subpoena in the absence of a pending judicial action.

Chavez had issued at least 94 such subpoenas in 2012 and 2013. The practice came to light in a criminal matter.

The Disciplinary Board designated a Hearing Committee, which found that Chavez’s research into the issuance of the subpoenas was reasonable and thorough, had not revealed a clear answer to the question, and that neither Respondent had “knowingly avoided or subverted a legal obligation or duty arising from either of their respective offices.” The Hearing Committee found that disciplinary counsel had failed to prove violations of the Rules of Professional Conduct by either Respondent and recommended that the charges of misconduct be dismissed as to both Respondents.

On review of the Committee’s findings, Disciplinary Board counsel rejected numerous findings of fact as containing conclusions of law, including findings that the Respondents had acted reasonably, and disagreed with the Hearing Committee’s conclusions of law.

The disciplinary panel recommended, and the Disciplinary Board requested of this Court, formal reprimand for Gallegos and public censure, a more serious punishment, for Chavez. The Board also recommended that costs for the disciplinary action be shared between the Respondents. At the conclusion of the hearing before this Court, we ruled from the bench that both Respondents should receive formal reprimands but deferred the issuance of those formal reprimands for one year and provided that the issuance of the formal reprimands would be automatically withdrawn if the Respondents committed no further violations of the Rules of Professional Conduct during the one-year deferral period. We also denied the assessment of costs against the Respondents…

The court

Chavez concluded that in the absence of an express prohibition, the issuance of unilateral subpoenas should be permissible, and he convinced Gallegos of the same. We disagree for several reasons. As a practical matter, we read all of the laws  relied upon by Chavez—Section 36-2-11, 18 U.S.C. Section 2703, and Rule 1- 2 045—to require a court’s acquiescence to the issuance of a subpoena, and this in turn requires an existing judicial action. More importantly, as a matter of fundamental policy, we emphasize that the absence of a prohibition does not equal permission…

First, the unauthorized subpoenas sent to communications providers unfairly deprived those providers of the right to conduct ordinary business and forced them to expend resources and personnel to respond before a response was required in the name of justice. Second, because the subpoenas were unconnected to pending judicial actions, the third parties whose information was being sought were not parties, were not notified, and therefore had no opportunity to contest the release of their personal information. This is especially troublesome in the few cases where the subpoenas sought private information including medical records, CYFD records, and utility records. Furthermore, in general, the practice of issuing subpoenas outside the authority and acquiescence of a court or a grand jury poses foreseeable and alarming risks to the fundamental rights of ordinary citizens. A person may have a right to decline to cooperate with a police investigation. Once a subpoena issues properly, it deprives the recipient of the right not to cooperate. A subpoena that issues improperly, but has the guise of authority and carries the threat of punishment, falsely suggests that the recipient is legally required to answer and has therefore lost the right not to respond. This is misleading and unfair, and represents an abuse of the government’s substantial power and responsibility.

The court concluded that Gallegos violated his supervisory obligations.

Gallegos alone violated Rule 16-501(C), which provides that a supervising attorney bears responsibility for a subordinate’s violation if the supervising attorney knows about the improper conduct and ratifies it, or if the supervising attorney knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action. Gallegos argues that he did not know the issuance of unilateral subpoenas was improper, and therefore he did not knowingly endorse a violation. We hold that Gallegos did knowingly ratify the issuance of the subpoenas, and his mistake as to the law does not protect him…

Furthermore, we are concerned that Gallegos was not aware of the practice until Chavez brought it to his attention and that his office lacked sufficient controls to preclude the practice. We urge New Mexico district attorneys to maintain sufficient training and oversight to avoid the improper issuance of subpoenas in the future

Sanction

We hold that formal reprimand is the proper sanction for both Respondents, and as previously ordered by this Court, the reprimand as to each Respondent has been deferred for one year. If neither Respondent engages in further violations of the Rules of Professional Conduct within that time, the reprimands will be withdrawn.

(Mike Frisch)