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Ezel / Ethics Opinions / NCSB
NCSB April 16, 2010

Can a lawyer serve a North Carolina subpoena on an out-of-state medical provider knowing the subpoena is unenforceable there?

Short answer: No. The opinion concludes a lawyer may not use the subpoena process to mislead an out-of-state health care provider into believing it must comply with a North Carolina subpoena that is unenforceable in that state, and may not use records the provider produced in reliance on that misrepresentation.

Apply this to your situation

This page answers the general question as of 2010. Ezel answers yours: whether it's allowed on your facts, under the current North Carolina Rules of Professional Conduct, with citations.

Currency note: this opinion is from 2010
Subsequent statutory amendments, court decisions, or later opinions or rule amendments may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
Disclaimer: Advisory only. Not binding precedent.
About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked on this page) is the authoritative source for any reliance.

Plain-English summary

A lawyer representing a county Department of Social Services needed hospital records located in a neighboring state. The first question was whether the lawyer could subpoena those records under N.C. R. Civ. P. 45 knowing the North Carolina subpoena is unenforceable out of state. The opinion answers no. A lawyer may not misrepresent to the out-of-state provider that it must comply with a subpoena that does not bind it. The opinion relies on RPC 236, which holds it is unethical for a lawyer to use the subpoena process to mislead the custodian of documentary evidence about the lawyer's authority to compel production, and on Rule 8.4(c), which makes it professional misconduct to engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.

The second question was whether, if the provider complies, the lawyer may use the records. The opinion answers no. The lawyer may not use documents produced in reliance on the lawyer's misrepresentation about the lawyer's authority to require their production.

In practice

Under the North Carolina rules as they stood at the time of the opinion, the controlling problem is not the act of sending a subpoena but the misrepresentation of authority. Per the opinion, a lawyer may not use the subpoena process to lead an out-of-state custodian to believe it must comply with a North Carolina subpoena that is unenforceable there (RPC 236; Rule 8.4(c)), and may not use records the custodian produced in reliance on that misrepresentation.

Common questions

Q: Can I send a North Carolina subpoena to a hospital in another state for records?

A: Not in a way that misrepresents the provider's duty to comply. The opinion concludes that because a North Carolina subpoena is unenforceable out of state, a lawyer may not use the subpoena process to mislead the provider into believing it must comply (RPC 236; Rule 8.4(c)).

Q: If the out-of-state provider complies anyway, can I use the records?

A: No. The opinion concludes a lawyer may not use documents produced in reliance on the lawyer's misrepresentation about the lawyer's authority to compel production.

Background and rules framework

The opinion applies North Carolina Rule 8.4(c), the analogue of Model Rule 8.4(c), which defines professional misconduct to include conduct involving dishonesty, fraud, deceit, or misrepresentation. It reads that rule together with RPC 236, the North Carolina opinion barring use of the subpoena process to mislead a records custodian about a lawyer's authority to compel production.

Citations and references

Rules of Professional Conduct:

  • MR 8.4 / NC Rule 8.4(c) (professional misconduct: dishonesty, fraud, deceit, or misrepresentation)

Other authority:

  • N.C. R. Civ. P. 45 (subpoenas).

Other opinions cited:

  • NC RPC 236: a lawyer may not use the subpoena process to mislead the custodian of documentary evidence about the lawyer's authority to require production.

See also

Source

Original opinion text

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

Inquiry #1:

Lawyer represents the Department of Social Services in a county that borders another state. In a particular case, the relevant hospital records are located out of state. Is it ethical for Lawyer to subpoena the medical records under the authority of N.C. R. Civ. P. 45 knowing that the North Carolina subpoena is unenforceable?

Opinion #1:

No. If the North Carolina subpoena is not enforceable out of state, the lawyer may not misrepresent to the out of state health care provider that it must comply with the subpoena. RPC 236 provides that it is unethical for a lawyer to use the subpoena process to mislead the custodian of documentary evidence as to the lawyer's authority to require the production of such documents. See also Rule 8.4(c) (professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit, or misrepresentation).

Inquiry #2:

If the records are subpoenaed and the health care provider complies with the subpoena, may Lawyer utilize the medical records?

Opinion #2:

No. Lawyer may not use documents that were produced in reliance on Lawyer's misrepresentation as to Lawyer's authority to require the production of such documents.

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