ACC recently filed a petition for a writ of certiorari recommending that the US Supreme Court hear arguments for the case Supreme Court of New Mexico v. United States.
WASHINGTON (June 8, 2017) — The Association of Corporate Counsel (ACC), a global legal association representing more than 42,000 members in 85 countries, recently filed a petition for a writ of certiorari recommending that the US Supreme Court hear arguments for the case Supreme Court of New Mexico v. United States. The underlying case addresses whether federal prosecutors who seek to subpoena lawyers about their clients are exempt from a New Mexico state bar professional conduct rule, 16-308(E) — a decision with important implications for attorney-client privilege in the in-house context.
In its brief, ACC urges the US Supreme Court to overturn a Tenth Circuit ruling that a New Mexico professional conduct rule does not apply to federal prosecutors issuing grand jury subpoenas seeking evidence from lawyers about current or past clients. The case will have wide-reaching implications, as 30 states have professional conduct rules similar to New Mexico's 16-308(E), which is based on ABA Model Rule of Professional Conduct 3.8(e).
ACC argues that exempting federal prosecutors in this instance impairs attorney-client communications, especially for corporations and both their inside and outside counsel. For example, the brief references similar litigation in Colorado where the Tenth Circuit stated that "the service of 'an attorney-subpoena may cause irreparable damage to the attorney-client relationship,' including by 'undermining the trust and openness so important to the attorney-client relationship.'" A subpoena of in-house counsel can be even more fraught for a corporation because the government has consistently challenged the application of attorney-client privilege in the in-house context.
"Congress has made clear that federal prosecutors may not avoid ethics requirements that apply to other members of the legal profession," said Amar Sarwal, ACC vice president and chief legal strategist. "To reinforce that bedrock principle, the Supreme Court should reject this latest gambit by federal prosecutors to make an endrun around ethics rules that protect the attorney-client relationship."
The brief was authored by Capital Appellate Advocacy founder Lawrence S. Ebner.
To read the petition, please visit: http://www.acc.com/advocacy/upload/SupCtofNMvUSamicus060117.pdf.
About ACC: The Association of Corporate Counsel (ACC) is a global legal association that promotes the common professional and business interests of in-house counsel who work for corporations, associations, and other private-sector organizations through information, education, networking, and advocacy. With more than 42,000 members in 85 countries, employed by over 10,000 organizations, ACC connects its members to the people and resources necessary for both personal and professional growth. By in-house counsel, for in-house counsel. For more information, visit www.acc.com and follow ACC on Twitter: @ACCinhouse.