## Facts

- G. Paul Howes, a New Mexico-licensed attorney serving as an Assistant United States Attorney in the District of Columbia, prosecuted a murder case against Darryl Smith.
- Smith was represented in that murder case by public defender Jaime S. Gardner.
- Before Smith was released pending further investigation, Howes sought to speak with Smith; Gardner refused consent unless Smith received complete immunity, which Howes declined.
- Between late September and early October 1988, Smith repeatedly contacted a police detective and made statements about the murder and other homicides; the detective informed Howes of these contacts.
- After Gardner learned of the contacts, she asked the criminal court to order no further communications; Howes stated that if Smith called, “we will take his call.” The judge did not enter an order barring contact.
- Smith began placing collect calls to Howes. Howes told Smith he did not have to speak and that Gardner would be unhappy, but he accepted the calls and listened as Smith discussed the murder case; Howes did not ask questions.
- A detective attempted an in-person jail meeting after supervisors instructed that Miranda warnings be given; the meeting ended when Smith refused to sign a Miranda form.
- Howes accepted additional collect calls from Smith and continued listening to Smith’s substantive statements about the murder prosecution.
- In the criminal case, Gardner moved to suppress Smith’s statements and to dismiss the indictment for prosecutorial misconduct; the judge denied both but referred the matter for ethics review.
- New Mexico disciplinary authorities charged Howes with violations of the no-contact rule and related professional misconduct; the Disciplinary Board recommended public censure, and Howes sought review.

## Issues

1. Whether Howes violated Rule 16-402 NMRA by accepting and listening to substantive communications from a represented criminal defendant about the subject of the representation without defense counsel’s consent or legal authorization.
2. Whether the same conduct constituted professional misconduct under Rule 16-804(A) NMRA.
3. Whether public censure was an appropriate sanction.

## Decision

- The Supreme Court of New Mexico adopted the Disciplinary Board’s findings and recommendation.
- The Court held that Howes violated Rule 16-402 by knowingly engaging in prohibited communication about the murder case with a represented defendant without counsel’s consent.
- The Court held that the Rule 16-402 violation also constituted misconduct under Rule 16-804(A).
- The Court imposed a public censure.

## Legal Principles

- Rule 16-402 prohibits a lawyer, while representing a client, from communicating about the subject of the representation with a person the lawyer knows is represented in the matter unless the person’s lawyer consents or the communication is authorized by law.
- “Communication” under the no-contact rule includes knowingly receiving and listening to substantive statements about the represented matter; the prohibition is not limited to interrogation or questioning.
- A represented person’s initiation of contact and the receiving lawyer’s warnings (e.g., that the person need not speak or that counsel would disapprove) do not eliminate a Rule 16-402 violation.
- General office policy or informal local practice does not, by itself, satisfy the “authorized by law” exception for contacting a represented criminal defendant about the defendant’s own case.
- A violation of the Rules of Professional Conduct may separately constitute professional misconduct under Rule 16-804(A) and support public discipline.

## Conclusion

The court publicly censured a prosecutor who knowingly accepted and listened to repeated, substantive communications from a represented criminal defendant about the pending prosecution without defense counsel’s consent, holding that client-initiated calls and asserted local practices did not justify an exception to the no-contact rule.


Matter of Howes, 123 N.M. 311 (N.M. 1997)