Publish United States Court of Appeals Tenth Circuit: Filed
Publish United States Court of Appeals Tenth Circuit: Filed
SEP 1 1999
PUBLISH
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
PATRICK FISHER
Clerk
No. 98-1081
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.
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
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
(...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.
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II.
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).
Blacks 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) (OConnor, 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
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).
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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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held that since Rule 17 made no allowances for the courts intervention in the
subpoena procedures, such intervention would contravene federal law. Id. at 10812. 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 jurys 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
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 Baylsons conclusion that a district courts 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 Circuits 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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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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[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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