In Kentucky, may a lawyer notice depositions, subpoena the witnesses, then cancel on opposing counsel and privately interview those witnesses under the subpoena?

Plain-English summary

The Committee was asked whether a lawyer violates the Rules by a particular scheme: calling opposing counsel for deposition dates on four fact witnesses, getting a date with the depositions set at one-hour intervals, issuing subpoenas to compel the witnesses' attendance, then canceling the deposition with opposing counsel but still meeting the witnesses on the scheduled date, under the cloak of the subpoena, to take their statements. The Committee answered "Yes," the conduct violates the Rules.

The opinion grounded the answer in its prior decisions. In KBA E-140 (1976) the Committee had said a lawyer may not cause a subpoena to be issued in a pending civil action purportedly compelling a witness to submit to a recorded interview without notice to opposing counsel and an opportunity to be present and cross-examine, calling that practice "pure bluff, tending to create disrespect for judicial process." KBA E-304 (1985) objected to "ex parte subpoenas," and Georgia Op. 40 (1984) used stronger words for such "simulated process." The opinion noted that the Kentucky civil rules authorize subpoenas (CR 45.01, 45.02) for depositions (45.04) or attendance at a hearing or trial (45.05), and that no part of the rule authorizes a subpoena for a lawyer's unnoticed or ex parte investigation.

Applying that framework, the Committee found the described scheme designed to circumvent the rules and mislead opposing counsel and witnesses, citing Rules 3.4(c), 4.1, and 8.3. It added that to the extent the requestor was asking about another lawyer's conduct or seeking remedies in a specific case, the Committee defers to the appropriate tribunal, because it does not issue opinions for offensive purposes; its opinions are advisory, issued for the protection of the requesting lawyer, and are not binding on court or counsel.

Currency note

This opinion was issued in 1993, before the substantial 2009 revisions to Kentucky's Rules of Professional Conduct (SCR 3.130); the Kentucky Bar Association notes that Rule 8.3, cited here, was renumbered to Rule 8.4. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against the current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can a lawyer use a subpoena to bring a witness in for a private, unnoticed interview?

A: No. The opinion concluded, following KBA E-140 and E-304, that a subpoena may not be used to compel a witness into the lawyer's office for an ex parte interview; the rules authorize subpoenas only for depositions or attendance at a hearing or trial.

Q: What made the deposition-then-cancel scheme improper?

A: The opinion found it was designed to circumvent the rules and to mislead opposing counsel and the witnesses, conduct it tied to Rules 3.4(c), 4.1, and 8.3.

Q: Will the Committee say whether another lawyer who did this should be disciplined?

A: No. The opinion stated the Committee does not issue opinions for offensive purposes and defers questions about another lawyer's conduct or remedies to the appropriate tribunal.

Background and rules framework

The opinion interprets KRPC 3.4(c) (knowingly disobeying an obligation under the rules of a tribunal; Model Rule 3.4), KRPC 4.1 (truthfulness in statements to others; Model Rule 4.1), and the misconduct rule then numbered 8.3 (now SCR 3.130(8.4); Model Rule 8.4). It reads these alongside the Kentucky Rules of Civil Procedure governing subpoenas (CR 45) to conclude the subpoena was misused.

Citations and references

Rules of Professional Conduct:

• MR 3.4(c) / KRPC 3.4(c) (disobeying obligations under tribunal rules)
• MR 4.1 / KRPC 4.1 (truthfulness in statements to others)
• MR 8.4 / KRPC 8.4 (misconduct; cited as 8.3 in the opinion)

Other opinions cited:

• KBA E-140 (1976): subpoena for unnoticed recorded interview is improper "bluff"
• KBA E-304 (1985): objecting to "ex parte subpoenas"
• Georgia Op. 40 (1984): "simulated process"

See also

• GA Ethics Op. 87-1: Filing Suit Before Facts Are Set
• AL Ethics Op. 1993-06: Candor in SSA Disability Hearings
• KBA Ethics Op. E-381: Contacting Former Employees

Source

• Landing page: https://kybar.org/For-Members/Rules-Ethics-Information/Ethics-Opinions
• Original PDF: https://kybar.org/Portals/0/Admin/Ethics%20Opinions/KBA_E-356.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-356
Issued: March 1993

Since the adoption of the Rules of Professional Conduct in 1990, the Kentucky Supreme
Court has adopted various amendments, and made substantial revisions in 2009. For
example, this opinion refers to Rule 8.3, which was renumbered to Rule 8.4. Lawyers
should consult the current version of the rules and comments, SCR 3.130 (available at
http://www.kybar.org), before relying on this opinion.

Question:

Attorney A calls up Attorney B and asks for deposition dates as to fact Witnesses 1,
2, 3, and 4. Attorney B gives Attorney A a date certain upon which to hold
depositions of all four witnesses to occur at one hour intervals on the same day.
Attorney A then prepares a subpoena to secure the attendance of witnesses 1, 2, 3,
and 4 at the scheduled deposition. Attorney A then calls Attorney B and cancels the
deposition but proceeds on the date scheduled for the deposition to meet with
witnesses 1, 2, 3, and 4 to obtain their statements. Has Attorney A violated the
Rules of Professional Conduct?

Answer:

Yes.

References:

Rules of Professional Conduct 3.4(c), 4.1 and 8.3; KBA E-304 (1985); KBA E-140
(1976); Georgia Op. 40 (1984).
OPINION

In KBA E-140 (1976) the Committee noted that a lawyer may not "cause a subpoena to
be issued and served in a pending civil action purportedly compelling a witness to submit to a
recorded interview under oath, without giving notice of the interview to opposing counsel,
affording him an opportunity to be present and cross-examine." The Committee observed that
this process is not authorized by the Rules of Procedure and amounts to "pure bluff, tending to
create disrespect for judicial process." Georgia Opinion 40 (1984) had stronger words for such
"simulated process." And again, in KBA E-304 (1985), the Committee objected to resort to
so-called "ex parte subpoenas," while observing that questions of procedural law are ordinarily
left to the courts.
We note that while the Federal Courts have expanded discovery from non-parties (but
again, only with proper, non-deceptive notice), the Kentucky Courts have not. And neither the
Kentucky nor the Federal Rules suggest that a lawyer may dragoon a witness into his or her office,
under color of a "subpoena", for a private interview, the taking of a witness statement, or for secret,
unnoticed, document production. In Kentucky subpoenas for testimony (45.01) or subpoenas duces
tecum (45.02) may issue for the taking of depositions (45.04) or for attendance at a hearing or trial

(45.05). No part of the Rule authorizes the use of a subpoena for a lawyer's unnoticed or "ex parte"
investigation.
We divine that a lawyer who would issue a notice of deposition scheduling four depositions
at one hour intervals on a single day, and who would, to facilitate same, issue subpoenas to
non-party witnesses to compel them to come to his or her office, and who would then call opposing
counsel to (dare we be frank) lie in order to secure his or her non-attendance, and who would in the
exploitation phase of the operation, take statements from non-party witnesses under the cloak of
the previously issued subpoena, may very well earn an unpleasant audience with the Presiding
Magistrate or the Inquiry Tribunal, since the lawyer is doing indirectly what was condemned in
E-304 and E-140.
The requestor has asked whether he or she would violate the Rules if he or she were to
engage in this practice. We answer "Yes", since the scheme seems to be designed to circumvent
the Rules and mislead opposing counsel and witnesses. See Rules 3.4(c), 4.1, and 8.3. To the
extent that the requestor is asking about the conduct of another lawyer in a specific case or is
asking for guidance regarding remedies in a specific case, we must defer to the appropriate
tribunal, since the Committee does not issue opinions for offensive purposes. Our opinions are
"advisory" and issued for the protection of the requesting lawyer. Nor are our opinions binding on
court or counsel.

Note to Reader
This ethics opinion has been formally adopted by the Board of Governors of the Kentucky
Bar Association under the provisions of Kentucky Supreme Court Rule 3.530 (or its predecessor
rule). The Rule provides that formal opinions are advisory only.