Can a lawyer subpoena documents from a non-party without scheduling a hearing, deposition, or trial?

Plain-English summary

The opinion addresses whether a lawyer may serve a documents-only subpoena on a non-party (here, a drawee bank in a collection case) when no hearing, deposition, or trial is scheduled. Opposing counsel argued a third-party subpoena is improper unless it commands production at a pending proceeding.

The opinion concludes the subpoena is permitted. It traces the issue to RPC 236, whose Opinion #3 held it deceptive (and a Rules violation) to use the subpoena process to mislead a document custodian about the lawyer's authority to require production, except in compliance with the Rules of Civil Procedure of the court where the action is pending (Rule 3.1 and Rule 8.4(c)). The key change is procedural: before 2003, North Carolina Rule of Civil Procedure 45 did not allow a subpoena to issue separately from a trial, hearing, or deposition, but the current Rule 45 provides that a command to produce evidence may be joined with a command to appear or "may be issued separately."

Because lawyers must interpret the Rules of Civil Procedure in good faith, the opinion reads the current Rule 45 to permit a standalone command to produce evidence. A lawyer may therefore subpoena a third party to produce records at the lawyer's office, so long as the lawyer follows all of Rule 45's requirements, including serving the subpoena on each party so other parties may file objections. To the extent it conflicts with this result, RPC 236 is overruled.

In practice

Under the North Carolina rules and the version of Rule of Civil Procedure 45 in effect at the time of the opinion, a lawyer may serve a document-production subpoena on a non-party without a scheduled hearing, deposition, or trial. Per the opinion, the conduct is proper only if the lawyer complies with Rule 45, which since 2003 expressly allows a command to produce evidence to be issued separately, and serves the subpoena on each party so they have the opportunity to object.

Per the opinion, the earlier guidance in RPC 236 (which had treated such a standalone subpoena as a potentially deceptive use of process under Rule 8.4(c)) is overruled to the extent of any conflict, because the procedural rule it relied on has since changed.

Common questions

Q: Can a lawyer subpoena records from a bank that is not a party to the lawsuit?

A: Yes. The opinion concludes a lawyer may subpoena a non-party to produce records without a pending hearing, deposition, or trial, so long as the lawyer complies with North Carolina Rule of Civil Procedure 45.

Q: Doesn't a subpoena have to command production at a hearing or deposition?

A: Not anymore. The opinion concludes that the current Rule 45 allows a command to produce evidence to be issued separately, a change from the pre-2003 rule, so a standalone document subpoena is proper.

Q: What must the lawyer do to issue the subpoena properly?

A: Follow Rule 45, including notice to the parties. The opinion concludes the lawyer must satisfy all of Rule 45's requirements, including serving the subpoena on each party so other parties have the opportunity to file objections.

Q: Does this change the older guidance in RPC 236?

A: Yes. The opinion concludes that, to the extent RPC 236 conflicts with this result, it is overruled, because the Rule of Civil Procedure that RPC 236 relied on has since been amended.

Background and rules framework

The opinion applies North Carolina Rule 3.1 (meritorious claims and contentions) and Rule 8.4(c) (conduct involving dishonesty, fraud, deceit, or misrepresentation), the analogues of Model Rules 3.1 and 8.4, to the use of the subpoena process. The ethics analysis turns on an underlying procedural rule, North Carolina Rule of Civil Procedure 45, which the opinion reads (as amended in 2003) to authorize a command to produce evidence issued separately from a hearing, deposition, or trial.

Citations and references

Rules of Professional Conduct:

• MR 3.1 / NC Rule 3.1 (meritorious claims and contentions)
• MR 8.4 / NC Rule 8.4(c) (dishonesty, fraud, deceit, or misrepresentation)

Statutes:

• N.C. Rule of Civil Procedure 45 (form and issuance of subpoenas; command to produce evidence may be issued separately)

Other opinions cited:

• NC RPC 236: using the subpoena process to mislead a document custodian about the lawyer's authority is deceptive; overruled here to the extent of any conflict, given the amended Rule 45.

See also

• ABA Formal Op. 94-385: Subpoenas of a Lawyer's Files
• ABA Formal Op. 473: Subpoena or Compulsory Process for Client Information

Source

• Landing page: https://www.ncbar.gov/for-lawyers/ethics-and-governing-rules/ethics-opinions/opinions/2008-formal-ethics-opinion-4/

Original opinion text

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

Editor's note: To the extent the opinions are in conflict, this opinion overrules RPC 236.

Inquiry:

Lawyer A represents Lender in pursuing a collection matter pertaining to a certain check. Lawyer A sent a subpoena to the drawee bank, which is not a party to the law suit, requesting a copy of the front and back of the check. Lawyer A provided notice of the subpoena to the other parties in the action. There is no hearing or deposition scheduled. Lawyer B, who represents the bank, believes that Lawyer A may not send a subpoena for documents to a third party unless the subpoena commands the production of the documents at a pending hearing, deposition, or trial.

May Lawyer A issue a subpoena to the bank without scheduling a hearing, deposition, or trial?

Opinion:

Yes. Opinion #3 of RPC 236 states:

It is deceptive and a violation of the [Rules of Professional Conduct] for a lawyer to use the subpoena process (except in compliance with the Rules of Civil Procedure of the court where the action is pending) to mislead the custodian of documentary evidence as to the lawyer's authority to require the production of such documents. However, a subpoena issued in compliance with the applicable Rules of Civil Procedure may be used by the lawyer.

See Rule 3.1 and Rule 8.4(c). Prior to 2003, North Carolina Rule of Civil Procedure 45 did not permit the issuance of a subpoena separately from a trial, hearing, or deposition. The current rule provides in pertinent part:

Rule 45. Subpoena.

(a) Form; Issuance.

(1) Every subpoena shall state all of the following:

...

B. A command to each person to whom it is directed to attend and give testimony or to produce and permit inspection and copying of designated records, books, papers, documents, or tangible things in the possession, custody, or control of that person therein specified.

...

(2) A command to produce evidence may be joined with a command to appear at trial or hearing or at a deposition, or any subpoena may be issued separately.

Lawyers have an obligation to interpret the Rules of Civil Procedure in good faith and to apply sound legal reasoning to a rule's interpretation and application. The current version of Rule 45 permits the issuance of a subpoena to produce evidence together with a command to appear at a trial, hearing, or deposition or "[a] command to produce evidence¼may be issued separately".

Lawyer A may, therefore, subpoena a third party to produce records at Lawyer A's office so long as Lawyer A follows all of the requirements set out in Rule 45, including service of the subpoena to each party which affords other parties the opportunity to file objections.

To the extent that this opinion conflicts with RPC 236, that opinion is overruled.