In re Howes

Federal prosecutor G. Paul Howes worked in the District of Columbia and was prosecuting a murder charge against Darryl Smith. Smith was represented by a public defender. Without his attorney, Smith began making collect calls from jail directly to a detective and to Howes to talk about the pending case. Smith’s attorney learned about some of these calls and told Smith to stop calling. However, Smith continued to call without his attorney’s knowledge or involvement. Twice, Howes discussed Smith’s calls with his supervising attorneys. However, these consultations focused mostly on possible evidentiary and constitutional issues and not possible ethical constraints. Also, it was unclear whether the supervising attorneys realized that Smith was calling Howes and not just the detective. Consistent with the advice Howes received from his supervisors, Howes and the detective continued to accept Smith’s collect calls and listen while taking notes, but they never asked Smith questions. Howes did not notify Smith’s attorney about the continuing calls. Eventually, Smith’s attorney learned what had been happening and moved to have the charges against Smith dismissed on the basis of prosecutorial misconduct. The judge referred the matter to the District of Columbia’s professional-responsibility board, which then referred it to New Mexico, where Howes was licensed. The New Mexico disciplinary board found that Howes had violated the no-contact rule of professional conduct. Howes appealed the ruling, arguing that his conduct was ethical and that he was protected by the safe-harbor rule for subordinate attorneys who rely on ethical advice from supervising attorneys.