United States v. Colorado Supreme Court

F I L E D
United States Court of Appeals
Tenth Circuit

PUBLISH SEP 1 1999

PATRICK FISHER
UNITED STATES COURT OF APPEALS Clerk
TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

v.

COLORADO SUPREME COURT, No. 98-1081
GRIEVANCE COMMITTEE OF THE
COLORADO SUPREME COURT, and
COLORADO SUPREME COURT
DISCIPLINARY COUNSEL,

Defendants-Appellees,

Appeal from the United States District Court
for the District of Colorado
(D.C. No. 93-Z-2672)

Henry L. Solano, United States Attorney; and Kathleen L. Torres and John M.
Haried, Assistant United States Attorneys, Denver, Colorado, on the briefs for
Plaintiff-Appellant.

Gale A. Norton, Attorney General and Maurice G. Knaizer, Deputy Attorney
General, Denver, Colorado, on the brief for Defendants-Appellees.

Before SEYMOUR, Chief Judge, PORFILIO and KELLY, Circuit Judges.

SEYMOUR, Chief Judge.
 The issue on appeal concerns whether Colorado Rule of Professional

Conduct 3.8(f) as adopted by the District Court of Colorado may be enforced

against federal prosecutors in Colorado. The rule restricts the prosecutorial

practice of subpoenaing an attorney to compel evidence about a past or present

client in criminal proceedings. The district court found no Supremacy Clause

violation in the rule as modified to eliminate its applicability to grand jury

proceedings, and held the modified rule valid and enforceable against federal

prosecutors in the investigation and prosecution of federal crimes. We affirm. 1

I.

We briefly review the manner in which this case evolved to present the sole

question before us today. The case originated from a state rule, Colorado Rule of

Professional Conduct 3.8(f), that was adopted into the local rules of the District

Court of Colorado. See D. C OLO . LR 83.6. The rule as originally written

restricted prosecutors in criminal and grand jury proceedings from subpoenaing

attorneys to give information about a past or present client unless the prosecutor

1
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See F ED . R. A PP . P. 34(a); 10th Cir. R. 34.1(G). The cause is
therefore ordered submitted without oral argument.

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reasonably believed that the information was not protected by a privilege, the

evidence sought was essential to an ongoing investigation or prosecution, and

there was no feasible alternative to obtain the information. The Rule also

required prosecutors to obtain judicial approval before moving forward with a

subpoena. The United States Attorney for the District of Colorado brought this

action seeking injunctive and declaratory relief against the Colorado Supreme

Court and its grievance committee and disciplinary counsel. The district court

dismissed the action, holding the United States lacked standing to challenge the

application of the Colorado rule to federal prosecutors. On appeal, we reversed

and remanded for further proceedings. See United States v. Colorado Supreme

Court, 87 F.3d 1161 (10th Cir. 1996).

At that time, Colorado Rule of Professional Conduct 3.8(f) included two

provisions that have since been removed. 2 The first, subsection (2) of the rule,

2
As originally adopted in Colorado, Rule 3.8 provided:

Rule 3.8: SPECIAL RESPONSIBILITIES OF A PROSECUTOR
The prosecutor in a criminal case shall: . . .
(f) not subpoena a lawyer in a grand jury or other criminal
proceeding to present evidence about a past or present client
unless:
(1) the prosecutor reasonably believes:
(i) the information sought is not protected from disclosure by
any applicable privilege;
(ii) the evidence sought is essential to the successful
completion of an ongoing investigation or prosecution;
(continued...)

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required the prosecutor to obtain prior judicial approval of a subpoena directed to

a lawyer, after the opportunity for an adversarial hearing. In 1997, following the

first appeal in this case, the Colorado Supreme Court amended the rule by

deleting subsection (2). The second provision, a portion of Rule 3.8(f)(1), made

the rule applicable to subpoenas to lawyers in grand jury proceedings. In its

decision on remand, the district court determined that the restriction on grand jury

proceedings violated the Supremacy Clause. Defendants have not appealed that

determination and we do not address it here. 3 The issue has thus narrowed to

whether Rule 3.8 in its modified incarnation, as applicable to federal prosecutors

subpoenaing attorneys to divulge information on past and present clients in

connection with a criminal proceeding other than a grand jury, is inconsistent

2
(...continued)
(iii) There is no other feasible alternative to obtain the
information; and
(2) the prosecutor obtains prior judicial approval after an
opportunity for an adversarial proceeding.

C OLORADO R ULES OF P ROFESSIONAL C ONDUCT 3.8 (1995).
3
Although circuits are split as to Rule 3.8 with respect to its applicability to
grand jury proceedings, that disagreement is inapposite with respect to the revised
Rule 3.8 before us. Compare Whitehouse v. United States Dist. Court, 53 F.3d
1349 (1st Cir. 1995) (holding federal courts could adopt a rule requiring a federal
prosecutor at either the grand jury or trial stage to obtain judicial approval before
serving a subpoena on counsel to compel evidence concerning a client) with
Baylson v. Disciplinary Bd., 975 F.2d 102 (3d Cir. 1992) (holding federal courts
violated Supremacy Clause by adopting a rule regulating federal prosecutors’
subpoena practice with respect to grand juries).

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with federal law in violation of the Supremacy Clause of United States

Constitution, U.S. C ONST . art. VI, cl. 2.

While this case was pending appeal, Congress enacted the McDade Act,

Pub. L. No. 105-277, 112 Stat. 2681, conclusively establishing that a state rule

governing attorney conduct is applicable to federal attorneys practicing in the

state. The McDade Act mandates that federal attorneys for the government are to

be bound by state professional rules as follows:

§ 530B Ethical standards for attorneys for the Government
(a) An attorney for the Government 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.
(b) The Attorney General shall make and amend rules of the Department of
Justice to assure compliance with this section.

Pub. L. No. 105-277, § 801(a), 112 Stat. 2681-118 (1998) (codified at 28 U.S.C. §

530B). Accordingly, as the parties recognize in their supplemental briefs, the

question whether Rule 3.8 violates the Supremacy Clause now turns on whether

the rule is a rule of professional ethics clearly covered by the McDade Act, or a

substantive or procedural rule that is inconsistent with federal law.

II.

Because this appeal from a summary judgment disposition presents purely

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legal questions, we review the district court's decision de novo. See Branson Sch.

Dist. RE-82 v. Romer, 161 F.3d 619, 627 (10th Cir. 1998).

Black’s Law Dictionary defines ethics as, “[o]f or relating to moral action,

conduct, motive or character . . . . Professionally right or befitting; conforming to

professional standards of conduct.” B LACK ’ S L AW D ICTIONARY 553 (6th ed.

1990). Conversely, “unethical has come into vogue in U.S. as an adjective for

the conduct of the man who is immoral . . . in violating the accepted code of a

profession or business.” A D ICTIONARY OF M ODERN E NGLISH U SAGE 171 (2d ed.

1965). In the legal profession, unethical conduct can be characterized as

“conduct unbecoming a member of the bar,” see F ED . R. A PP . P. 46(c) (authorizes

disciplinary action for such conduct); C HARLES W. W OLFRAM , M ODERN L EGAL

E THICS § 3.3 at 87-88 (1986). The Supreme Court has in turn defined such

conduct as “conduct contrary to professional standards that shows an unfitness to

discharge continuing obligations to clients or the courts, or conduct inimical to

the administration of justice. More specific guidance is provided by case law,

applicable court rules, and ‘the lore of the profession,’ as embodied in codes of

professional conduct.” In re Snyder, 472 U.S. 634, 645 (1985) (reversing

suspension of lawyer for refusing to apologize for a “harsh” letter to Court of

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Appeals for the Eighth Circuit); 4 see also Braley v. Campbell, 832 F.2d 1504,

1510 n.5 (10th Cir. 1987) (en banc).

Despite the somewhat vague and tautological descriptions of legal ethics as

normative professional conduct, and professional conduct as legal ethics, and

despite being subject to influences as mutable as “the lore of the profession,” the

legal profession has codified the standards with some success. See Zauderer v.

Office of Disciplinary Counsel, 471 U.S. 626, 677 (1985) (O’Connor, J.,

concurring in part, dissenting in part) (“The legal profession has in the past been

distinguished and well served by a code of ethics which imposes certain standards

4
As Justice Burger explained for the Court, the need to assure that our
members do not display conduct unbecoming a member of the bar is beyond
civility, it is a duty. It essentially “reflects the burdens inherent in the attorney's
dual obligations to clients and to the system of justice,” burdens that come from
entrusted powers beyond those given to the public at large. In re Snyder, 472
U.S. 634, 644 (1985).

As an officer of the court, a member of the bar enjoys singular powers that
others do not possess; by virtue of admission, members of the bar share a
kind of monopoly granted only to lawyers. Admission creates a license not
only to advise and counsel clients but to appear in court and try cases; as
an officer of the court, a lawyer can cause persons to drop their private
affairs and be called as witnesses in court, and for depositions and other
pretrial processes that, while subject to the ultimate control of the court,
may be conducted outside courtrooms. The license granted by the court
requires members of the bar to conduct themselves in a manner compatible
with the role of courts in the administration of justice.

Id. at 644-45. This duty is imposed on every member of the bar with no
distinction between private practice or public service.

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beyond those prevailing in the marketplace and by a duty to place professional

responsibility above pecuniary gain.”). The Model Rules of Professional Conduct

follow in the path of a number of codes and represents the American Bar

Association’s most recent codification of legal ethical standards. See C HARLES

W. W OLFRAM , M ODERN L EGAL E THICS § 2.6.2 at 53-54 (Cannons of Ethics), §

2.6.3 at 56 (Code of Professional Responsibility), § 2.6.4 at 60 (Model Rules of

Professional Conduct) (1986); see generally M ODEL R ULES OF P ROFESSIONAL

C ONDUCT (1999). The federal courts in analyzing conduct unbecoming to a

member of the bar turn invariably to the Model Rules or other codes of

professional conduct. See generally In re Snyder, 472 U.S. 634. State courts

have adopted similar rules, and federal district courts across the country have in

turn adopted the local codes of ethics, applying them to both private and

government practitioners.

The question is whether the version of Rule 3.8 before us is one of those

normative legal standards that guides the conduct of an attorney. Although the

relevant caselaw offers some guidance, it is slightly amiss in responding to our

inquiry because the cases involve other versions of rules that govern grand jury

matters and require the prosecutor to obtain judicial approval prior to

subpoenaing a lawyer. See, e.g., Whitehouse, 53 F.3d 1349; Baylson, 975 F.2d

102. In Baylson, for example, three federal prosecutors sued to enjoin the

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Disciplinary Board of the Supreme Court of Pennsylvania from requiring them to

obtain prior judicial approval before serving a grand jury subpoena on an

attorney. The court held a rule similar to the earlier version of Rule 3.8 invalid

for two independent reasons. First, it was outside the scope of local rule making

authority, an issue resolved in our case due to Congress’ enactment of the

McDade Act. See Baylson, 975 F.2d at 107-08 (discussing rule-making

authority). 5 Second, the rule violated the Supremacy Clause by attempting to

regulate an area federal law controlled. Id. at 112. Dismissing the need to

characterize the rule as either procedural or ethical, the court stated, “For

purposes of determining whether [the rule] violates the Supremacy clause, it

matters not at all what the Board or Baylson choose to call it. What matters is

whether the substance of [the rule] actually conflicts or is incompatible with

federal law.” Id. at 111. The rule “does not suddenly become consistent with

F ED . R. CIM. P. 17 as a state rule of professional conduct.” Id. The court held

that the rule’s judicial approval requirement violated the Supremacy Clause

because it was incompatible with the federal rules of criminal procedure. Id. at

112. Rule 17 regulates subpoena practices such as the time of issuance, clerk

issuance including signature and seal, and required names of parties. The court

5
The court in Baylson also held that the professional rule as adopted by the
federal district courts was not within their supervisory power over grand juries,
Baylson, 975 F.2d at 109-11, an issue not before us in this appeal.

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held that since Rule 17 made no allowances for the court’s intervention in the

subpoena procedures, such intervention would contravene federal law. Id. at 108-

12. The court also held the state professional rules imposed an unlawful

substantive restraint on the power of the grand jury to issue subpoenas. Id. at

109-10.

In Whitehouse, the rule at issue also concerned judicial approval and grand

jury subpoenas. By contrast to Baylson, however, the First Circuit held that the

District Court of Rhode Island could properly adopt and enforce Rule 3.8 in its

earlier form, 6 on all its terms. The court addressed the issue in two parts. First, it

held that the rule was well within the district court rule-making authority since it

attempted to regulate only the conduct of the prosecutor herself and not the grand

jury procedure or the grand jury’s broad independence and secrecy. See

Whitehouse, 53 F.3d at 1354-62. Second, the court disagreed with Baylson and

held that Rule 3.8 was not inconsistent with either F ED . R. CIM. P. 17 or 57. Id.

at 1362-65. The court declined to infer affirmative regulation from Congress’

silence in the criminal rules. Because “nothing in the text of Rule 17 [suggests] it

was intended to abrogate the power of a federal court to regulate the conduct of

attorneys appearing before it,” the court held Rule 17 did not preclude Rule 3.8's

6
This included application to both grand jury and trial subpoenas and the
requirement of prior judicial approval.

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regulation of such professional conduct. Id. at 1364. Finally, the court disagreed

with Baylson’s conclusion that a district court’s authority under Rule 57 to adopt

local rules is limited to “matters of detail,” id. at 1364-65, concluding there was

full authority to adopt the professional rule.

More important to the instant case is the First Circuit’s implicit treatment

of the rule as one of ethics. The court insisted that the public policy value of

Rule 3.8 was to protect the attorney-client relationship, which outweighed any

incidental effect on the grand jury. In addressing the policy issues, the court

extensively discussed the importance of a trusting and open attorney-client

relationship, and the development of a “body of substantive law and ethical rules

[that have] evolved over the years” with the purpose of fostering such a

relationship. Id. at 1361. The court concluded that the district court was in the

best position “to evaluate the need for an ethical rule regulating the practice of its

officers” when imposing on this relationship.” Id. (emphasis in original).

The importance of the attorney-client relationship is evidenced by the

various privileges which protect it. The attorney-client privilege is “one of the

oldest recognized privileges for confidential communication known to the

common law” and works to foster the underlying relationship. Upjohn Co. v.

United States, 449 U.S. 383, 389 (1981); see also Swidler & Berlin, 118 S. Ct.

2081, 2084 (1998). Similarly, the work product privilege fosters

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 the general policy against invading the privacy of an attorney’s
course of preparation [which] is so well recognized and so essential
to an orderly working of our system of legal procedure that a burden
rests on the one who would invade that privacy to establish adequate
reasons to justify production through a subpoena or court order.

Hickman v. Taylor, 329 U.S. 495, 511 (1947). The legal profession’s “ethical

obligation” of confidentiality is a corollary to these privileges. See Upjohn Co.,

449 U.S. at 391 (citing ABA code of Profession Responsibility, 4-1).

We look at several factors to help us determine whether a rule really is one

of professional conduct. First, a rule of professional conduct would bar conduct

recognized by consensus within the profession as inappropriate. As noted by

Justice Brennan, at the very least, “an attorney in many instances may properly be

punished for ‘conduct which all responsible attorneys would recognize as

improper for a member of the profession.’” Zauderer, 471 U.S. at 666 (Brennan,

J., concurring in part, dissenting in part) (quoting In re Ruffalo, 390 U.S. 544, 550

(1968) (White, J., concurring)).

Second, a rule of professional conduct is like a commandment dealing with

morals and principles. As Judge Campbell in the First Circuit wrote in grappling

with a local rule equivalent to an earlier version rule 3.8, a rule of professional

conduct often comes in commandment form and becomes suspicious when it

“deviate[s] from this ‘thou shalt not’ structure.” United States v. Klubock, 832

F.2d 664, 669 (1st Cir. 1987) (en banc) (Campbell, C.J., dissenting).

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 Moreover, a rule of ethics in directing sweeping commandments of conduct

can often be quite vague in its nature, 7 while by contrast the procedural or

substantive law, the purposes of which are to direct a cause of action through the

courts, cannot afford such vagueness. In addressing the interplay of due process

in a violation of a rule of ethics, Justice Brennan explained that “[g]iven the

traditions of the legal profession and an attorney's specialized professional

training, there is unquestionably some room for enforcement of standards that

might be impermissibly vague in other contexts.” Zauderer, 471 U.S. at 666,

(Brennan, J., concurring in part, dissenting in part); see also C HARLES W.

W OLFRAM , M ODERN L EGAL E THICS § 3.3-1 at 87 (1986) (discussing imprecision

drafted into the codes to assure they are broad enough to cover lawyer

misconduct).

Finally, a rule of ethics is directed at the attorney herself. “The focus of

the courts’ disciplinary powers is on attorney behavior that is an affront to the

express authority of the court, or that shows an unfitness to discharge the

7
“Many people are impatient with moral philosophy because it does not
deliver the goods – clear answers that we can act upon with complete confidence.
But, unfortunately, moral choice is often inherently dilemmatic and moral
philosophy does not deal with realms as contained as those of the physical
sciences. There is no clearly right course to choose, because of either the
ambiguity of facts or the ambiguity of our values, no matter how sincerely we
attempt to think about them.” See Charles W. Wolfram, Modern Legal Ethics, §
2.7.2 at 71 (1986).

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attorney’s continuing obligations to the court or to clients.” Braley, 832 F.2d at

1510 n.5 (citing In re Snyder, 472 U.S. at 645). 8 Accordingly, when a rule of

professional conduct is violated, members of the profession would agree that the

violating attorney ought to be held personally accountable; whereas when a

procedural or substantive rule is violated, any negative effect would be directed

primarily at the progress of the claim itself.

Applying these factors to Rule 3.8 in the modified form presented to us

here, we easily conclude the rule is an ethical one. Most significantly, the

attorney-client relationship is by general consensus of our profession worthy of

protection, and the service of “an attorney-subpoena may cause irreparable

damage to the attorney-client relationship.” Whitehouse, 53 F.3d at 1258. Such a

subpoena takes its toll in two ways. First, “[f]rom the moment that the subpoena

is served on counsel until the issue of its validity is resolved, the client resides in

8
“Courts discipline lawyers to incapacitate the offending lawyer, to deter
that and all other lawyers from repeated violations of professional regulations,
and to protect the image of the bar. The classic statement of the purposes of
judicial discipline of lawyers is that of Lord Mansfield in Ex Parte Brounsall:

‘[T]he question is, Whether, after the conduct of this man, it is proper that
he should continue a member of a profession which should stand free from
all suspicion . . . . It is not by way of punishment; but the court on such
cases, exercise their discretion, whether a man whom they have formerly
admitted, is a proper person to be continued on the roll or not.’

See Charles W. Wolfram, Modern Legal Ethics § 3.1 at 80 (1986).

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a state of suspended animation, not knowing whether his attorney will testify

against and perhaps be required to withdraw his representation.” Id. That

uncertainty inevitably undermines the trust and openness so important to the

attorney-client relationship. Second, the “service of a subpoena opens a second

front which counsel must defend with her time and resources, thus diverting both

from the client.” Id. We agree with the First Circuit, “[t]hat the defense counsel

adversary can bring about these consequences raises manifest ethical concerns.”

Id. (second emphasis added).

Moreover, Rule 3.8 is in commandment form. The rule has the vague

sweeping character of moral edict, stating that the prosecutor in a criminal case

shall not subpoena a lawyer in a criminal proceeding to present evidence about a

past or present client unless the prosecutor reasonably believes the information

sought is not protected from disclosure 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.

Embodying the well-honored principle of professional conduct that thou shalt not

interfere with the attorney-client relationship without a showing of cause, the text

does not concern itself with the actual procedural steps to satisfy the rule.

Finally, the rule is clearly directed at the prosecutor, not at the cause of

action. The rule attempts to regulate her behavior when seeking evidence in this

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privileged area of law, with the consequences of personal sanction. In sum, a

prosecutor violating Rule 3.8 has violated the generally accepted principle that

the attorney-client relationship should not be disturbed without cause. To do so

would constitute essentially “unethical” attorney conduct unbecoming any

member of the bar, including prosecutors. Because of the characteristics of Rule

3.8, we conclude that the rule in its current incarnation is a rule of ethics

applicable to federal prosecutors by the McDade Act.

Furthermore, we hold that Rule 3.8, in its mandate that a federal prosecutor

ought not to disturb an attorney-client relationship without a showing of cause,

does not conflict with F ED . R. CIM. P. 17, which details only the procedures for

issuing a proper subpoena. Rule 17 does not abrogate the power of courts to hold

an attorney to the broad normative principles of attorney self-conduct.

Accordingly, we hold that Rule 3.8 is not inconsistent with federal law and can be

adopted and enforced by the state defendants against federal prosecutors.

We AFFIRM the judgment of the district court.

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