Can a North Carolina lawyer issue subpoenas to witnesses or records custodians when no action is pending or no hearing is scheduled, to get them to appear or produce documents?

Plain-English summary

This opinion (published in revised form, with a later cross-reference to 2008 FEO 4) addressed several ways lawyers had used the subpoena process to obtain testimony or documents outside the procedures of a pending case. In the first scenario, a lawyer subpoenaed accident witnesses to appear at his office "to give testimony" where no action was pending and no adverse party had notice. The opinion concluded this was improper: Rule 45(a) of the Rules of Civil Procedure permits a subpoena only to obtain a witness's testimony in a pending cause, so where no action is pending it is false and deceptive, violating Rule 1.2(c) and Rule 7.2(a)(4), to issue a subpoena that misleads the witness about the existence of a filed lawsuit and the witness's obligation to appear.

In the second scenario, a lawyer in a pending custody and support case subpoenaed the father's employer to appear in district court and produce employment records, attaching a letter saying a court appearance could be avoided by sending the records directly to the lawyer, although no hearing was scheduled. The opinion concluded that stating there was a scheduled hearing at which the records must be produced was a misrepresentation of fact violating Rule 1.2(c) and Rule 7.2(a). The third scenario, involving subpoenas to a physician and a bank custodian in a caveat proceeding with no hearing scheduled, drew the same conclusion: it is deceptive, violating Rule 1.2(c) and Rule 7.2(a)(4), to use the subpoena process to mislead a 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.

The opinion declined to resolve the fourth question, whether notice to opposing counsel is required when a lawyer issues a subpoena under Rule 45(c), stating that this is a question of civil procedure outside the purview of the Ethics Committee.

Currency note

This opinion was issued in 1997, before the North Carolina State Bar's adoption of the 2003 revisions to the Rules of Professional Conduct. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can a lawyer subpoena a witness to his office when no lawsuit is on file?

A: No. The opinion concluded that where no action is pending, it is false and deceptive under Rule 1.2(c) and Rule 7.2(a)(4) to subpoena a witness in a way that misleads the witness about the existence of a lawsuit and the duty to appear.

Q: Can a subpoena say a hearing is scheduled when none is?

A: No. The opinion concluded that representing a scheduled hearing at which records must be produced, when none is set, is a misrepresentation of fact violating Rule 1.2(c) and Rule 7.2(a).

Q: Can a lawyer ever use a subpoena to get records from a custodian?

A: Yes, if issued properly. The opinion concluded that a subpoena issued in compliance with the applicable Rules of Civil Procedure may be used; what is improper is using the process to mislead the custodian about the lawyer's authority.

Q: Did the committee decide whether opposing counsel must get notice of a records subpoena?

A: No. The opinion concluded that this is a question of civil procedure outside the purview of the Ethics Committee.

Background and rules framework

The opinion applied North Carolina's then-current Rule 1.2(c) on dishonesty, fraud, deceit, and misrepresentation (corresponding to Model Rule 8.4(c)) and Rule 7.2(a) on false or deceptive conduct toward others in the course of representation (corresponding to the Model Rule 4.4 concern for the rights of third persons). It measured the conduct against Rule 45 of the North Carolina Rules of Civil Procedure, which governs the issuance and use of subpoenas.

Citations and references

Rules of Professional Conduct:

• MR 8.4 (misconduct; dishonesty, fraud, deceit, or misrepresentation)
• MR 4.4 (respect for the rights of third persons)
• North Carolina Rule 1.2(c) and Rule 7.2(a)

Statutes and rules:

• N.C. R. Civ. P. 45 (issuance and use of subpoenas)

Other opinions cited:

• 2008 FEO 4: additional guidance on the use of the subpoena power to obtain records

See also

• NC Ethics Op. 2008-4: use of the subpoena power to obtain records
• NC Ethics Op. RPC 243: a prosecutor's restraint in calendaring cases

Source

• Landing page: https://www.ncbar.gov/for-lawyers/ethics-and-governing-rules/ethics-opinions/opinions/rpc-236/

Original opinion text

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

Editor's Note: This opinion was originally published as RPC 236 (Revised).

Editor's Note: See 2008 FEO 4 for additional guidance.

Inquiry #1:

Attorney A represents John Doe who was injured in an automobile accident. Witnesses are listed on the accident report. Attorney A issues subpoenas to the witnesses directing them to appear at his office at a designated time "to give testimony." The subpoenas are served on the witnesses who later appear at Attorney A's office at the appointed times. The only persons in attendance are Attorney A, a secretary/notary, and the witnesses. No notice was given to any adverse parties. Is Attorney A's conduct ethical?

Opinion #1:

No. Rule 45(a) of the Rules of Civil Procedure permits the issuance of a subpoena "for the purpose of attaining the testimony of a witness in a pending cause." Where no action is pending, it is false and deceptive, in violation of Rule 1.2(c) and Rule 7.2(a)(4), to issue a subpoena to a prospective witness that misleads the prospective witness as to the existence of a filed lawsuit and as to the prospective witness's legal obligation to appear.

Inquiry #2:

After the commencement of a child custody and support action, Mother's attorney issues and signs a subpoena to Father's employer directing the employer to appear in district court at a designated time and to produce Father's employment records. The case is not scheduled for trial or hearing. Mother's attorney attaches a letter to the subpoena that informs the employer that a court appearance may be avoided by sending copies of the employment records directly to the attorney. No notice is given to Father's attorney. Are the actions of Mother's attorney ethical?

Opinion #2:

No. Stating in the subpoena and in the letter to the employer that there is a scheduled court hearing at which the employment records must be produced is a misrepresentation of fact in violation of Rule 1.2(c) and Rule 7.2(a).

Inquiry #3:

Attorney A filed a caveat on behalf of two sons of Testator. Attorney A issues and serves a subpoena on Dr. John Smith, Testator's physician, directing Dr. Smith to appear at Attorney A's office at a designated time to produce all of the medical records pertaining to Testator. Attorney A also issues and serves a subpoena on the custodian of the records of ABC Bank directing the custodian to appear at Attorney A's office at a designated time to produce all of Testator's and Testator's executor's bank records for the preceding five years. No trial, hearing, or deposition is scheduled in the pending action. Attorney A writes letters to the witnesses advising them that they may avoid appearing at his office by providing him with copies of the documents he has subpoenaed. Attorney A did not give notice to any other party interested in the caveat proceeding. Is Attorney A's conduct ethical?

Opinion #3:

No. It is deceptive and a violation of Rule 1.2(c) and Rule 7.2(a)(4) 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.

Inquiry #4:

Is notice to opposing counsel required when a lawyer issues a subpoena pursuant to Rule 45(c) of the Rules of Civil Procedure commanding a person to appear and produce records?

Opinion #4:

This is a question of civil procedure which is outside the purview of the Ethics Committee.