Attorney General of New Mexico

GARYK. KING

Attorney General

ALBERT J. LAMA

Chief Deputy Attorney General

NE\V MEXICO ATTORNEY GENERAL'S PARALLEL PROCEEDINGS POLICY

Introduction

This policy applies to parallel civil and criminal proceedings conducted by the New Mexico Attorney General's Office ("AGO"). Parallel proceedings are simultaneous, sequential or overlapping civiL administrative and criminal proceedings against the same individuals or entities for conduct arising out of the same set of facts. The need for a policy sterns from the constitutional and ethical issues raised by parallel proceedings, particularly when information is shared between the criminal and civil sides of the AGO. ¹

Notice to Defendant or Respondent Regarding Parallel Proceedings

AGO staff handling a civil or administrative proceeding are not required to warn or give notice that a parallel criminal proceeding is or may be commenced against the defendant or respondent. However, AGO staff may not affirmatively mislead or create a false impression in an investigation, interview or deposition that there are only administrative, regulatory or civil consequences. Consequently, when appropriate, a defendant or potential defendant in a civil proceeding should be informed that the AGO has the option of pursuing administrative, civil. or criminal enforcement and that the decision to take one type of action does not preclude the office from pursuing any other enforcement action. Appropriate situations include those where the civil attorney is asked about the potential for criminal enforcement, the civil attorney knows that the AGO is contemplating criminal enforcement action against the defendant or witness or there is othern ise a reasonable likeiihood that the AGO will pursue a criminal prosecution.

Typically. challenges to parallel proceedings are based on alleged violations of due process, the Fifth Amendment right against self-incrimination and the Fourth Amendmenf s prohibition against unreasonable searches. For the most part, these challenges are unsuccessful unless there is evidence that the government initiated a civil investigation solely for the purpose of obtaining evidence in a criminal prosecution or affirmatively misrepresented the existence or possibility of a criminal investigation. See United States v. Strinuer, 535 F.3d 929, 936-941 (9^th Cir.). cert. denied. 129 S.Ct. 662 (2008 ).

Although notification about the AGO's general authority to pursue criminal enforcement is permissible, AGO policy precludes AGO staff from either confirming or denying the existence of a criminal investigation in a particular matter.

If the subject of a civil investigation or a witness raises questions concerning self-incrimination, the right to counsel or other legal matters, civil staff should respond that it is inappropriate to offer advice on such matters and that the subject or witness is free to consult with a private attorney.

Exchange of Information

Disclosure from criminal to civil

The ability of AGO staff handling a criminal proceeding to share information with the civil side is limited by the prosecutor's statutory obligation to keep confidential all matters occurring before a grand jury. Confidential grand jury materials that may not be disclosed to civil staff include those that reveal what occurred before the grand jury and records that have been subpoenaed by the grand jury. The limitation does not apply to information obtained from a source independent of a grand jury proceeding, including information obtained from witnesses before they testify before a grand jury, material produced without a subpoena and information obtained through an independent investigation.

To facilitate the sharing of information among AGO staff involved in parallel proceedings, the following procedures should be followed:

1.                  When appropriate, other avenues of information gathering, such as search warrants and witness interviews, should be utilized in addition to grand jury subpoenas.

2.                   Prior to presentation of a matter to a grand jury, investigators and prosecutors should summarize or segregate evidence that has been obtained from a source independent of the grand jury process, including witness interviews, information obtained through an independent investigation and materials produced without a subpoena.

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Information obtained in a civil investigation generally may be shared with criminal staff That information may properly be used in a criminal  prosecution  if it was obtained  for a good faith civil  or administrative purpose and the defendant was not misled about the government's intentions. To avoid any abuse or perceived abuse of the discovery process, the administrative process or civil discovery may not be used as a pretext for a criminal investigation and criminal staff should not attempt to direct or influence the conduct of discovery in the civil proceeding.