## Facts

- A New Mexico-licensed attorney served as an Assistant United States Attorney prosecuting a Washington, D.C. homicide case against a defendant represented by a public defender.
- After arrest and appointment of counsel, the defendant repeatedly placed collect calls from jail (and later after release) to the lead detective and to the prosecutor to discuss the pending case.
- Defense counsel learned of early contacts and instructed the defendant to stop calling, but the defendant continued communicating without counsel’s participation.
- The prosecutor consulted supervising attorneys twice, but the discussions focused on evidentiary and constitutional concerns and did not clearly resolve the ethical implications of receiving the defendant’s calls.
- The prosecutor and detective continued to accept the calls, listened to the defendant’s substantive statements, and took notes; they did not interrogate the defendant or ask questions.
- The prosecutor did not notify defense counsel that he was continuing to receive and listen to the defendant’s case-related communications.
- After defense counsel discovered the pattern of contacts, she raised prosecutorial-misconduct concerns in the criminal case, prompting a referral to disciplinary authorities and ultimately to New Mexico because the prosecutor was licensed there.
- The New Mexico Disciplinary Board found a violation of the no-contact rule and recommended public censure; the prosecutor sought review in the New Mexico Supreme Court.

## Issues

1. Whether a prosecutor violates the no-contact rule by knowingly receiving, listening to, and memorializing substantive communications about a pending case from a represented defendant, without defense counsel’s consent, where the defendant initiated the contacts and the prosecutor asked no questions.
2. Whether the subordinate-lawyer “safe harbor” for acting in accordance with a supervisor’s reasonable resolution of an arguable ethical question barred discipline on the theory that the prosecutor relied on supervisors’ advice.

## Decision

- The New Mexico Supreme Court accepted the Disciplinary Board’s conclusion that the prosecutor violated the no-contact rule.
- The Court held that the defendant’s initiation of the calls and the prosecutor’s passive role (listening without questioning) did not avoid the rule’s prohibition.
- The Court rejected the subordinate-lawyer safe-harbor defense because there was no clear supervisory resolution of the ethical question and any reliance was not reasonable on this record.
- The Court imposed the recommended sanction of public censure.

## Legal Principles

- A lawyer may not communicate about the subject of a representation with a person the lawyer knows is represented in the matter unless opposing counsel consents or the communication is authorized by law.
- For purposes of the no-contact rule, “communication” includes knowingly receiving and listening to substantive, case-related statements from a represented opposing party; the rule is not limited to contacts initiated by the lawyer or to exchanges involving questioning.
- A subordinate lawyer avoids responsibility only when acting pursuant to a supervisor’s actual resolution of an arguable ethical question and when reliance on that resolution is objectively reasonable; informal or ambiguous discussions that do not squarely address the ethical issue do not suffice.

## Conclusion

The court publicly censured a prosecutor for violating the no-contact rule by accepting and recording case-related calls from a represented defendant without defense counsel’s consent, and it held that the subordinate-lawyer defense did not apply absent a clear and reasonably relied-upon supervisory ethical determination.


In re Howes, 940 P.2d 159 (N.M. 1997)