Can an attorney serve an unenforceable subpoena?

by Rebecca on March 14, 2016

With all the different procedures for obtaining evidence outside Georgia, the temptation is there. You, as the Georgia attorney, are thinking: Can’t I just serve the Georgia subpoena on my out-of-state witness 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, ethics opinions from other states have clearly answered, “No.”

It’s an ethics violation to serve the trial-state subpoena outside the trial state.

  • 1992 Virginia ethics opinion. In Virginia Legal Ethics Opinion 1495, an attorney presented a hypothetical question about whether it was ethical to  ask the Virginia court clerk (where the action is pending) to issue a subpoena to a North Carolina resident and whether it was ethical to then move the Virginia court for a show case order when that nonresident doesn’t comply. In the hypothetical, the attorney knows the subpoena is unenforceable. The ethics opinion held that those actions would violate the prohibition on a lawyer engaging in fraud, dishonesty, deceit, or misrepresentation. There is an exception mentioned in the opinion, however: it would not violate the rules if the witness agreed to accept service of the subpoena.
  • 1993 Vermont ethics opinion. In Vermont Advisory Ethics Opinion 93-04, the committee found that it was a violation of the ethics rule to mail a Vermont subpoena to an out-of-state resident to secure the attendance at trial because it misleads the witness as to the power of the subpoena.  It was a violation of the Code of Professional Responsibility, which prohibits conduct involving misrepresentation and actions that serve only to harass or maliciously injure another. The opinion went further and stated that it would also be an abuse of process that would subject the attorney to a civil action for damages.
  • 2010 North Carolina ethics opinion. In the North Carolina 2010 Formal Ethics Opinion 2, the committee found that it was not ethical for lawyer to subpoena medical records under the North Carolina rules from an out-of-state hospital. It was a violation of Rule 8.4(c) because it is involves dishonesty, fraud, decide, or misrepresentation. The opinion went further and held that the lawyer could not use documents that were produced in reliance on the lawyer’s misrepresentation as to the lawyer’s authority to require the production of documents.
  • 2015 Maryland disbarment. In Attorney Grievance Commission of Maryland v. Mixter, 441 Md. 416 (Md. Ct. App. 2015), the court ultimately disbarred an attorney who had a pattern and practice of subpoena abuse. The case involved dozens of subpoenas over 7 years in 22 cases, and included misrepresentations to both the court (falsely certifying that he engaged in a good-faith effort to resolve discovery disputes, filing motion to compel or contempt motions against non-Maryland witnesses with false certifications) and misrepresentations to third parties (threatening recipients that their appearance could be compelled in Maryland and serving Maryland subpoenas outside Maryland).

A disclaimer is possible. North Carolina followed its 2010 opinion with its 2014 Formal Ethics Opinion 7. There, the committee conceded that if the lawyer includes with the North Carolina subpoena a letter that states the North Carolina subpoena power does not extend to the discovery state but that the subpoena is only being provided for the out-of-state entity’s records, then there is no ethics violation. In the letter, you would have to explain the following:

1) that the subpoena is not enforceable in the out-of-state jurisdiction,

2) that the recipient is not required to comply with the subpoena, and

3) that the subpoena is being provided solely for the entity’s records, then there is no misrepresentation.

Georgia is already concerned about the misuse of subpoenas. Georgia Advisory Opinion 40 addresses 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.”

Takeaway: Don’t gamble–use UIDDA or similar statutes. My take on all these 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. § 9-11-45(a)(1)(C) (referring to § 24-13-22). So serving it outside Georgia would make it unenforceable. Instead, use UIDDA or similar statutes. (See that citation list here.) It’s better to take a little more time than to face a possible bar complaint for misleading a witness.

*originally published Nov. 3, 2011. Updated to refer to more ethics opinions and updated citations. 

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