Can a North Carolina lawyer send an out-of-state entity or witness a North Carolina subpoena that cannot be enforced against them?

Plain-English summary

The inquiry involves a lawyer who wants documents from an out-of-state medical provider or other entity that is not in North Carolina and has no registered agent there, so the North Carolina subpoena power under N.C. R. Civ. P. 45 does not reach it. The foreign entity says it will comply once it receives a North Carolina subpoena "for its records." On Inquiry #1, the opinion concludes the lawyer may provide the subpoena if it is accompanied by a statement that the subpoena is not enforceable in the foreign jurisdiction, that the recipient is not required to comply, and that it is being provided solely for the entity's records.

The opinion grounds the limit in Rule 8.4(c), which makes it misconduct to engage in conduct involving dishonesty, fraud, deceit, or misrepresentation. It relies on RPC 236, which calls it false and deceptive to use the subpoena process to mislead a document custodian about the lawyer's authority to require production, and on 2010 FEO 2, which prohibits using a subpoena to demand medical records under Rule 45 when the lawyer knows the subpoena is unenforceable out of state. Because the accompanying statement makes clear that compliance cannot be compelled, the lawyer has not misrepresented or misled the recipient; the recipient knows it cannot be compelled and may decide whether to produce the documents voluntarily.

On Inquiry #2, the opinion reaches the same answer for the testimony of an individual over whom the North Carolina court lacks in personam jurisdiction. If the individual requests a North Carolina subpoena knowing the court lacks jurisdiction and the subpoena will not be enforceable, the lawyer may provide it with a statement explaining that it is not enforceable as to the individual and is being provided solely at the individual's request.

In practice

Under the North Carolina rules as they stood at the time of the opinion, conduct in which a lawyer hands an out-of-state recipient a North Carolina subpoena it cannot lawfully compel is permitted only if the lawyer is candid that the subpoena is unenforceable, that compliance is not required, and that it is supplied at the recipient's own request. Per the opinion, the analysis turns on whether the recipient is misled about the lawyer's authority: Rule 8.4(c), RPC 236, and 2010 FEO 2 prohibit using the subpoena process to imply that the recipient must comply when it need not.

The opinion treats a recipient-requested subpoena, paired with the required disclaimer, as a non-deceptive accommodation: the recipient understands it is responding voluntarily. The opinion applies the same rule whether the target is an out-of-state document custodian or an individual witness outside the court's personal jurisdiction.

Common questions

Q: Can a North Carolina lawyer send an out-of-state provider a subpoena that cannot be enforced?

A: Yes, with disclosure. Opinion #1 permits it if the subpoena is accompanied by a statement that it is not enforceable in the foreign jurisdiction, that the recipient is not required to comply, and that it is provided solely for the entity's records.

Q: Why is this not a misrepresentation under Rule 8.4(c)?

A: Because the recipient is told the truth. The opinion explains that RPC 236 and 2010 FEO 2 bar misleading a custodian about the lawyer's authority to compel production, but the accompanying statement removes any false impression, so the recipient knows it cannot be compelled and may produce documents voluntarily.

Q: Does this work for an out-of-state witness, not just documents?

A: Yes. Opinion #2 applies the same rule where the court lacks in personam jurisdiction over an individual: if the individual requests the subpoena knowing it is unenforceable, the lawyer may provide it with a statement that it is not enforceable and is provided at the individual's request.

Q: Could the lawyer send the subpoena without the explanatory statement?

A: The opinion does not permit that. Its conclusion rests on the accompanying statement; without it, using a Rule 45 subpoena the lawyer knows is unenforceable would mislead the recipient about whether compliance is required, contrary to RPC 236 and 2010 FEO 2.

Background and rules framework

The opinion interprets North Carolina Rule 8.4 (misconduct, the analogue of Model Rule 8.4), specifically Rule 8.4(c), which prohibits conduct involving dishonesty, fraud, deceit, or misrepresentation. It situates the subpoena question within the prior guidance of RPC 236 (no use of the subpoena process to mislead a custodian about the lawyer's authority) and 2010 FEO 2 (no use of a Rule 45 subpoena the lawyer knows is unenforceable to demand out-of-state medical records).

The opinion also references N.C. R. Civ. P. 45, the source of the North Carolina subpoena power, to mark its territorial limits; the deception concern arises precisely because that power does not reach the foreign recipient.

Citations and references

Rules of Professional Conduct:

• MR 8.4 / NC Rule 8.4(c) (conduct involving dishonesty, fraud, deceit, or misrepresentation)

Statutes and rules:

• N.C. R. Civ. P. 45 (subpoena power and its territorial limits)

Other opinions cited:

• NC RPC 236: it is false and deceptive to use the subpoena process to mislead a custodian about the lawyer's authority to compel production.
• NC 2010 FEO 2: a lawyer may not use a Rule 45 subpoena known to be unenforceable to demand out-of-state medical records.

See also

• NC State Bar 2014 FEO 9: Testers in Public-Interest Investigations
• NY State Bar Op. 772: Threatening Criminal Charges to Gain a Civil Advantage
• Alabama Bar Op. 2007-05: Pre-Litigation Investigation Using Pretexting

Source

• Landing page: https://www.ncbar.gov/for-lawyers/ethics-and-governing-rules/ethics-opinions/opinions/2014-formal-ethics-opinion-7/

Original opinion text

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

Editor's note: This opinion supplements and clarifies 2010 FEO 2, Obtaining Medical Records from Out of State Health Care Providers.

Inquiry #1:

In a state legal matter, a lawyer wishes to obtain documents from a medical provider or other entity that is not located in North Carolina and does not have a registered agent in the state (foreign entity). The lawyer contacts the foreign entity and requests the documents. The lawyer informs the foreign entity that the subpoena power set out in N.C. R. Civ. P. 45 does not extend to the foreign jurisdiction. The foreign entity indicates that it will comply with the request for documents upon the receipt of a North Carolina subpoena “for its records.”

May the lawyer provide the foreign entity with a North Carolina subpoena accompanied by a statement/letter explaining that the subpoena is not enforceable in the foreign jurisdiction and is provided to the entity solely for the entity’s records?

Opinion #1:

Yes. Rule 8.4(c) states that it is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit, or misrepresentation. RPC 236 provides that it is false and deceptive 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. 2010 FEO 2 prohibits a lawyer’s use of a subpoena to request medical records under the authority of Rule 45 knowing that the North Carolina subpoena is unenforceable. 2010 FEO 2 explains that 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 and 2010 FEO 2 prohibit a lawyer from making misrepresentations to the subpoena recipient that the lawyer has the legal authority to issue the subpoena under Rule 45 or misleading the recipient as to whether compliance with the subpoena is required by law.

If the subpoena is accompanied by a statement/letter explaining that the subpoena is not enforceable in the foreign jurisdiction, the recipient is not required to comply with the subpoena, and the subpoena is being provided solely for the entity’s records, the lawyer has not made misrepresentations to, nor misled, the subpoena recipient. The subpoena recipient is aware that it cannot be compelled to comply with the subpoena and may determine whether to provide the requested documents voluntarily.

Inquiry #2:

Would the answer differ if the lawyer wishes to obtain the appearance and testimony of an individual over which the North Carolina court does not have in personam jurisdiction?

Opinion #2:

No. If an individual requests a North Carolina subpoena, knowing that the North Carolina court lacks in personam jurisdiction over the individual and the subpoena will not be enforceable, the lawyer may provide the individual with the subpoena, accompanied by a statement/letter explaining that the subpoena is not enforceable as to the individual and is being provided solely at the individual’s request.