Academic journal article Defense Counsel Journal

Federal Prosecutors Bound by Local Ethics Rules

Academic journal article Defense Counsel Journal

Federal Prosecutors Bound by Local Ethics Rules

Article excerpt

Colorado's Rule of Professional Conduct limiting the use of subpoenas against attorneys to compel evidence about a past or present client in criminal proceedings, as adopted by the U.S. District Court for that state, may be enforced against federal prosecutors in the investigation and prosecution of federal crimes, the 10th Circuit held in United States v. Colorado Supreme Court, 186 F.3d 1281 (1999).

Colorado Rule 3.8(f) provides that a prosecutor shall not subpoena a lawyer in a criminal proceeding to present evidence about a past or present client unless the prosecutor reasonably believes that information sought is not protected by any applicable privilege, the evidence sought is essential to the successful completion of an ongoing investigation or prosecution and there is no other feasible alternative to obtain the information.

For several years the U.S. Department of Justice has had a running argument with states over the application of state ethical rules to federal attorneys. In this case, the 10th Circuit relied on the so-called McDade Act, enacted in 1998 and codified at 28 U.S.C. 53013, which provides that federal government attorneys "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. …

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