                                                              I attest to the accuracy and
                                                               integrity of this document
                                                                 New Mexico Compilation
                                                               Commission, Santa Fe, NM
                                                              '00'04- 11:02:12 2017.03.22

         IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: 2017-NMSC-012

Filing Date: February 6, 2017

Docket No. S-1-SC-35469

IN THE MATTER OF EMILIO JACOB CHAVEZ, ESQUIRE
An Attorney Licensed to Practice Law Before the Courts
of the State of New Mexico

Consolidated With:

IN THE MATTER OF DONALD A. GALLEGOS, ESQUIRE
An Attorney Licensed to Practice Law Before the Courts
of the State of New Mexico

William D. Slease, Chief Disciplinary Counsel
Christine E. Long, Assistant Disciplinary Counsel
Albuquerque, NM

for Disciplinary Board

William Riordan & Associates
William Riordan
Albuquerque, NM

for Respondent Emilio Jacob Chavez

Ahmad Assed & Associates
Ahmad Assed
Richard J. Moran
Albuquerque, NM
for Respondent Donald A. Gallegos

                                        OPINION

VIGIL, Justice.

{1}     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.

                                             1
Gallegos authorized the issuance of a subset of the subpoenas, but was unaware of most of
them.

{2}    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.

I.     BACKGROUND

{3}     Between 2012 and 2013, Chavez signed and issued at least ninety-four subpoenas
concerning numerous separate investigations. The subpoenas were directed primarily to
various cellular phone providers seeking subscriber information and call activity in order to
narrow potential suspects, but several sought medical records, CYFD records, and utility
records. The subpoenas were not issued by a sitting grand jury nor reviewed by any judicial
officer and were not connected to any cases before the court. All of the subpoenas were filed
with the Eighth Judicial District Court prior to service and assigned to a miscellaneous
criminal file. Because there were no cases, there were no parties, and so Chavez issued the
subpoenas without notice to the individuals whose information was being sought. Many of
the subpoenas were captioned State of New Mexico v. John Doe.

{4}    During a robbery investigation in April 2013, Chavez and a detective wished to issue
subpoenas duces tecum for investigative purposes and asked Gallegos to approve them.
Respondents conducted research into the issuance of such subpoenas and concluded that they
were lawful. Gallegos eventually approved the practice of issuing investigative subpoenas
for phone subscriber information. Eleven subpoenas were issued in connection with the
robbery investigation. In October 2013, defendants in the robbery case filed a motion to
quash their indictments based on the improper issuance of subpoenas. The motion was
granted and the state appealed to the Court of Appeals. That appeal is now pending before
this Court. State v. Martinez, No. S-1-SC-35757, order of certification at 1-2 (N.M. Ct. App.
Mar. 7, 2016) (non-precedential).

{5}     In October 2014, the Disciplinary Board initiated disciplinary actions against
Respondents over the issuance of the subpoenas. The Disciplinary Board alleged that Chavez
unlawfully issued subpoenas, improperly issued subpoenas without notifying parties in
several of the controversies, and issued subpoenas that failed to follow proper form as
required by Rule 5-511 NMRA and Form 9-217 NMRA. The Disciplinary Board claimed
Chavez violated Rules 16-101 NMRA, 16-304(A), (C) NMRA, 16-305(C) NMRA, 16-
404(A) NMRA, and/or 16-804(D) NMRA. Aside from the subpoenas Gallegos authorized
in the robbery case, he did not know of any others until the filing of the disciplinary action.
Gallegos also did not know that subpoenas had been issued in improper form, had been
issued without notice to parties in the various cases, or had been improperly filed. Gallegos
is implicated primarily due to his supervisory position with respect to Chavez. The

                                              2
Disciplinary Board claimed violations against Gallegos including Rules 16-101, 16-304(A),
(C), 16-305(C) 16-404(A), 16-501(A)-(C), and/or 16-804(D).

{6}     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.

{7}     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.

{8}     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 and indicated that we would issue
an opinion at a later date to further explain our decision.

II.    DISCUSSION

{9}     Rule 17-316(A)(1) NMRA grants this Court the authority to review the disciplinary
recommendation of a public censure against Chavez. Rule 17-316(A)(2), subparagraphs (b)
and (d) grant this Court authority to review the recommendation of a formal reprimand
against Gallegos because the Disciplinary Board’s petition alleges a significant question of
law and an issue of substantial public interest.

{10} With respect to the findings and conclusions of a hearing committee, the standard of
review for a disciplinary panel and for this Court is the same: both entities afford deference
to findings of fact and review conclusions of law de novo. In re Bristol, 2006-NMSC-041,
¶¶ 18, 26, 140 N.M. 317, 142 P. 3d 905. This Court is not bound by the Disciplinary Board’s
legal conclusions about which Rules of Professional Conduct have been violated by
Respondents. See In re Estrada, 2006-NMSC-047, ¶¶ 7, 19, 140 N.M. 492, 143 P.3d 731.
This Court also does not defer to recommendations regarding the appropriate level of
discipline; we are free to impose lesser or greater levels of discipline as we deem
appropriate. Bristol, 2006-NMSC-041, ¶ 27.

                                              3
A.     The Law Does Not Support The Unilateral Issuance of Subpoenas

{11} Rule 5-511(A)(1)(b) provides that every subpoena shall “state the title of the action
and its criminal action number.” Rule 5-511(A)(2) further provides that “[a]ll subpoenas
shall issue from the court for the district in which the matter is pending.” This language
plainly requires that subpoenas be issued only in connection with existing judicial actions.
The Court of Appeals declared unauthorized subpoenas to be prosecutorial misconduct in
1985 after a district attorney unilaterally issued subpoenas to financial institutions while
investigating an embezzlement case. State v. Eder, 1985-NMCA-076, ¶¶ 2, 5, 103 N.M. 211,
704 P. 2d 465. The Court of Appeals stated that using unauthorized subpoenas to compel
witnesses to produce documents “has been deemed coercive and intimidating. To the extent
that an unknowing witness may feel compelled to attend or produce documents, the practice
amounts to perpetrating a deceit on the witness.” Id. ¶ 5. The Court of Appeals has also held
that not even a sitting district court judge possesses the authority to compel a person to
submit evidence when no complaint, information or indictment has been filed against the
person and thus when no criminal prosecution has commenced. Sanchez v. Attorney General,
1979-NMCA-081, ¶¶ 12, 20, 93 N.M. 210, 598 P. 2d 1170.

{12} Respondents argue that they made a reasonable decision in issuing the subpoenas at
issue because their research revealed no New Mexico authority disallowing the process.
Chavez relied on several authorities that he determined were ambiguous on the issue: NMSA
1978, Section 36-2-11 (1953); federal stored communications laws, 18 U.S.C. §§ 2701-2712
(2012); and Rule 1-045 NMRA.

{13}   Section 36-2-11(A) provides:

       An attorney has authority: to execute in the name of his client any bond or
       other written instrument necessary and proper for the prosecution of an
       action or proceeding about to be or already commenced, or for the
       prosecution or defense of any right growing out of an action, proceeding or
       final judgment rendered therein[.]

We read the language “an action . . . about to be or already commenced” to include only
those actions sanctioned by a grand jury or a district court. This view is supported by
Sanchez. 1979-NMCA-081, ¶¶ 27-28. We hold that Section 36-2-11(A) does not provide
authority for a prosecutor to unilaterally issue subpoenas prior to the commencement of a
judicial action.

{14} The federal communications laws on which Chavez relied provide that a
governmental entity may require the disclosure of stored electronic communication records
“only pursuant to a warrant issued using the procedures described in the Federal Rules of
Criminal Procedure (or, in the case of a State court, issued using State warrant procedures)
by a court of competent jurisdiction.” 18 U.S.C. § 2703(a). Subsection (b)(1) provides that
notice to customers or subscribers is not required where the information is requested

                                             4
pursuant to a warrant but is required if the information is requested pursuant to a court order
or “an administrative subpoena authorized by a Federal or State statute or a Federal or State
grand jury or trial subpoena.” As Chavez recognized, this authority does not address the
question of whether an action must be pending before a subpoena issues.

{15} Rule 1-045 is a Rule of Civil Procedure analogous to the Rule of Criminal Procedure,
Rule 5-511, applicable to this case. One of the differences between the rules appears in Rule
1-045(A)(3), which provides that “[a]n attorney authorized to practice law in New Mexico
and who represents a party, as an officer of the court, may also issue and sign a subpoena on
behalf of the court.” The rule provides no authority for the issuance of a subpoena by a
prosecutor in the absence of the court’s authority; without such authority, a prosecutor is not
acting “on behalf of the court.” Further, both rules require that a subpoena state the title of
the action and its case number. Rule 1-045(A)(1)(b); Rule 5-511(A)(1)(b). It is impossible
to include an accurate title and case number when no judicial action has been established.

{16} 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 1-045—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.

{17} Prosecutors bear significant responsibility in the administration of the law. The Ninth
Circuit has observed, “[t]he Government is the strongest litigant in the world. You have got
the F.B.I. and all the government agencies available to you. You represent the strongest
client in the world.” Lenske v. United States, 383 F.2d 20, 22 (9th Cir. 1967). The United
States Supreme Court has said that the United States Attorney represents not an ordinary
party to a controversy but

       a sovereignty whose obligation to govern impartially is as compelling as its
       obligation to govern at all; and whose interest, therefore, in a criminal
       prosecution is not that it shall win a case, but that justice shall be done. . . . It
       is as much his duty to refrain from improper methods calculated to produce
       a wrongful conviction as it is to use every legitimate means to bring about a
       just one.

Berger v. United States, 295 U.S. 78, 88 (1935). This duty of fairness extends to all parties
to judicial actions, and in this case it extended to the recipients of subpoenas as well as the
people whose information was being sought, none of whom were parties to judicial actions.

{18} Disciplinary counsel identified the gravamen in this case as the Respondents’
issuance of “pre-indictment” subpoenas. As a point of clarification, pre-indictment
subpoenas are not per se unlawful. Subpoenas are routinely issued pre-indictment in

                                                5
connection with grand jury proceedings under NMSA 1978, Section 31-6-12(A) (1979):

       The grand jury has power to order the attendance of witnesses before it, to
       cause the production of all public and private records or other evidence
       relevant to its inquiry and to enforce such power by subpoena issued on its
       own authority through the district court convening the grand jury and
       executed by any public officer charged with the execution of legal process
       of the district court.

{19} Necessarily, subpoenas issued pursuant to that statute in a grand jury proceeding are
pre-indictment subpoenas. Conversely, some post-indictment subpoenas may be unlawful.
For example, if these same subpoenas were issued unilaterally by a prosecutor or defense
attorney or other lawyer after dismissal or other resolution of a case, they would be unlawful
even though they occurred after indictment. The problem in this case was not whether the
subpoenas were issued pre-indictment or post-indictment, but that they were not issued in
connection with an authorizing proceeding.

B.     The Issuance of Unilateral Subpoenas Violated the Rules of Professional
       Conduct

{20} We hold that Chavez violated Rule 16-404(A) and that Gallegos violated Rules 16-
404(A) and 16-501(C). Rule 16-305(D) requires intent to disrupt a tribunal, which is not
evident here. Respondents’ conduct did arguably implicate the remaining rules, but because
Rules 16-404(A) and 16-501(C) adequately address the conduct, we decline to reach
violations of Rules 16-101, 16-304, or 16-804.

{21} Rule 16-404(A) provides that “a lawyer shall not use means that have no substantial
purpose other than to embarrass, delay or burden a third person, or use methods of obtaining
evidence that violate the legal rights of such a person.” Chavez has argued that no rights
were violated because a defendant lacks a right to know who is subpoenaed for grand jury
proceedings, and because no evidence was presented supporting the claim that any
individual’s rights were violated. Gallegos cites Smith v. Maryland for the proposition that
telephone subscribers should harbor no expectation that the numbers they dial will remain
secret. 442 U.S. 735, 743 (1979). But Smith is plainly distinguishable. Smith considered the
admissibility of dialed phone numbers detected by a monitoring device installed on a
defendant’s line by a phone company at the request of police. Smith, 442 U.S. at 737. The
United States Supreme Court held that such a monitoring device does not constitute a search
under the Fourth Amendment to the United States Constitution and that defendants should
not expect privacy in the numbers they dial. Id. at 742. Smith does not address the key issue
in this case, which is the improper issuance of subpoenas.

{22} Form 9-217, which provides a template for subpoenas, contains a stern warning to
its addressees: “IF YOU DO NOT COMPLY WITH THIS SUBPOENA you may be held
in contempt of court and punished by fine or imprisonment.” In this case, sending subpoenas

                                              6
that implied court authority, but lacked it, affected the rights of the subpoena recipients and
third parties in two impermissible ways. 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.

{23} 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. Based on the analysis above, Gallegos should have known that the issuance of
the subpoenas violated the Rules of Professional Conduct. 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.

C.     Disciplinary Disposition

{24} The American Bar Association (ABA) Standards for Imposing Lawyer Sanctions,
Standard 5.22, provides that suspension is the appropriate consequence “when a lawyer in
an official or governmental position knowingly fails to follow proper procedures or rules,
and causes injury or potential injury to a party or to the integrity of the legal process.”
Because Respondents should have known that the subpoenas in these cases were issued
without legal support and in violation of our Rules of Professional Conduct, suspension
might ordinarily be the proper course. However, this Court recognizes that there is no
evidence in the record to show Respondents exhibited bad faith or an intent to deceive when
they issued the subpoenas. We also recognize that Respondents have complied fully with the
disciplinary proceedings against them. Both of these are factors warranting mitigation under

                                              7
ABA Standards 9.32(b) and (e).

{25} 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. We also waive Respondents’
costs arising from this proceeding.

{26}   IT IS SO ORDERED.

                                             ____________________________________
                                             BARBARA J. VIGIL, Justice

WE CONCUR:

____________________________________
CHARLES W. DANIELS, Chief Justice

____________________________________
PETRA JIMENEZ MAES, Justice

____________________________________
EDWARD L. CHÁVEZ, Justice

____________________________________
JUDITH K. NAKAMURA, Justice




                                            8
