With all the different procedures outlined in my recent article for obtaining evidence outside Georgia, and with the procedures varying by the over 3,000 counties and parishes in the U.S.*, the temptation is there.
You, as the Georgia attorney, are thinking: Can’t I just serve the Georgia subpoena and see what happens? Maybe I’ll get the documents, maybe I won’t. But if I do, I’ve saved a lot of time and money.
While the State Bar of Georgia has not answered this question, a Virginia ethics opinion has said, “No.” In 1992, Virginia Legal Ethics Opinion 1495 was issued. In that opinion, an attorney asking the court clerk to issue a subpoena that the attorney knows is unenforceable violates the prohibition on a lawyer engaging in fraud, dishonesty, deceit, or misrepresentation. The exception mentioned in the opinion is that it would not violate that prohibition if the witness agreed to accept service of the subpoena. Although the opinion does not address it, I would presume that in asking the witness to accept service there was no fraud, dishonesty, or deceit involved in obtaining that agreement.
Georgia Advisory Opinion 40 is already concerned about the misuse of subpoenas and misleading nonparty witnesses. That opinion calls for the Georgia attorney to serve and file the notice of deposition or to schedule the deposition by agreement before having the subpoena issued. For deposition subpoenas, they should not be issued when there is no deposition scheduled. While this opinion does not address an attorney’s duties in issuing a subpoena to serve out of state, it does recognize that attorneys using subpoenas for nonparty witnesses must not mislead those witnesses. This Opinion was not issued by the Supreme Court of Georgia, but it is treated as persuasive authority. And under Rule 4.1, an attorney cannot “make a false statement of material fact or law to a third person.”
My take on those two opinions is that an attorney should not attempt to send an unenforceable subpoena outside Georgia, particularly with any kind of representation that it would be binding on the nonparty witness. A Georgia subpoena can only be served within Georgia. O.C.G.A. §§ 24-10-21; 9-11-45(a)(1)(C). So serving it outside Georgia would make it unenforceable.
Of course, there are scenarios where it could be fine to send a Georgia subpoena outside Georgia–but it would likely involve that nonparty witness accepting service of the subpoena and no statements that could mislead the witness.
So going through the other state’s proper procedures to serve a subpoena on the nonparty witness would make that subpoena, originating in Georgia, enforceable. While it will take more time and money, it will avoid the potential to mislead the nonparty witness.
*The National Association of Counties puts the number of counties at 3,068.
