Can a prosecutor use evidence a colleague obtained through a criminal subpoena issued before any arrest warrant or indictment?

Plain-English summary

Prosecutor A obtained and served a subpoena duces tecum during a criminal investigation, before any arrest warrant or true-billed indictment. Prosecutor B, who had no part in issuing the subpoena, then used the information it produced to prosecute the defendant. The committee was asked whether Prosecutor B could ethically use that information.

The committee first noted it cannot decide questions of substantive or procedural law, and pointed the inquirer to Rule 13 of the South Carolina Rules of Criminal Procedure, the magistrate court rules, and State v. Williams. It explained that in General Sessions Court a subpoena duces tecum may issue under Rule 13, but magistrate and municipal courts have no such authority except in DUI cases. Assuming the procedural premise (that no criminal subpoena may issue before a warrant or true-billed indictment), the committee analyzed each prosecutor. As to Prosecutor A, Rule 8.4(g) bars knowingly assisting a judge or judicial officer in conduct that violates the rules of judicial conduct or other law; obtaining or serving such a subpoena before charges would violate that rule, and the prosecutor might also consider Rule 3.3 (candor to tribunals) and Rule 4.1(a) (truthfulness to others).

As to Prosecutor B, the committee applied Rule 8.4(a), which makes it misconduct to violate the rules or to knowingly assist or induce another to do so, including through the acts of another, and Rule 5.1(c)(1), which makes a lawyer responsible for another lawyer's violation if the lawyer orders it or, knowing the specific conduct, ratifies it. The committee concluded that if Prosecutor A in fact acted unethically in obtaining or serving the premature subpoena, a subsequent prosecutor who knowingly used the information would violate Rule 5.1(c)(1) and Rule 8.4(a).

Currency note

This opinion was issued in 2001, before the South Carolina Bar's adoption of the 2005 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 Treat this page as historical context, not current guidance.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: Could a prosecutor use evidence from a colleague's pre-charge criminal subpoena?

A: The committee concluded that if the subpoena was improperly issued before any arrest warrant or true-billed indictment, a prosecutor who knowingly used the resulting information would violate Rule 8.4(a) and Rule 5.1(c)(1).

Q: What rule does the prosecutor who obtained the premature subpoena violate?

A: The committee concluded that obtaining or serving such a subpoena, where procedural law does not allow it before charges, would violate Rule 8.4(g)'s bar on knowingly assisting a judicial officer's improper conduct.

Q: Does it matter that the second prosecutor had no part in issuing the subpoena?

A: The committee concluded it does not, if the second prosecutor knew of the specific conduct: Rule 5.1(c)(1) makes a lawyer responsible for ratifying another lawyer's violation, and Rule 8.4(a) reaches misconduct committed through the acts of another.

Background and rules framework

The opinion interpreted South Carolina RPC 8.4(g) (knowingly assisting a judicial officer's improper conduct), 8.4(a) (committing or assisting a violation, including through another), 5.1(c)(1) (responsibility for another lawyer's violation), and referenced 3.3 (candor toward tribunals) and 4.1(a) (truthfulness to others), corresponding to the like-numbered Model Rules. The committee identified the relevant procedural backdrop (Rule 13, SCRCrimP; State v. Williams) but did not decide the legal question of whether the subpoena was proper.

Citations and references

Rules of Professional Conduct:

• South Carolina RPC 8.4(g) / Model Rule 8.4: knowingly assisting a judge or judicial officer in improper conduct.
• South Carolina RPC 8.4(a) / Model Rule 8.4(a): violating the rules or assisting another to do so, including through the acts of another.
• South Carolina RPC 5.1(c)(1) / Model Rule 5.1: responsibility for another lawyer's violation when ordered or ratified.
• South Carolina RPC 3.3, 4.1(a) / Model Rules 3.3, 4.1: candor to tribunals and truthfulness to others.

Cases:

• State v. Williams, 301 S.C. 369, 392 S.E.2d 181 (S.C. 1990).

See also

• SC Bar Ethics Op. 14-02: No-Discretion Prosecutor Policy
• SC Bar Ethics Op. 03-02: Prosecuting a Former Client
• SC Bar Ethics Op. 18-03: Agency Prosecutor and Panel

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-01-05/

Original opinion text

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

UPON THE REQUEST OF A MEMBER OF THE SOUTH CAROLINA BAR, THE ETHICS ADVISORY COMMITTEE HAS RENDERED THIS OPINION ON THE ETHICAL PROPRIETY OF THE INQUIRER’S CONTEMPLATED CONDUCT. THIS COMMITTEE HAS NO DISCIPLINARY AUTHORITY. LAWYER DISCIPLINE IS ADMINISTERED SOLELY BY THE SOUTH CAROLINA SUPREME COURT THROUGH ITS COMMISSION ON LAWYER CONDUCT.

Ethics Advisory Opinion 01-05

Facts
Prosecutor A obtains and serves a subpoena duces tecum during a criminal investigation prior to the issuance of an arrest warrant or true billed indictment. Prosecutor B then uses the information obtained pursuant to the subpoena in prosecuting the Defendant.

Question
May Prosecutor B who is not involved in the issuance of the subpoena ethically use the information obtained pursuant to the subpoena duces tecum in prosecuting the case?

Summary
It would be unethical for an attorney to obtain a subpoena duces tecum in a criminal case prior to there being an active arrest warrant or true billed indictment. Further, it would be unethical for a subsequent attorney, who is aware of the unethical conduct of the first attorney, to utilize the subpoenaed information in a criminal prosecution.

Opinion
This committee may not render advice regarding matters of substantive or procedural law. However, the attorney may wish to consider Rule 13 of the South Carolina Rules of Criminal Procedure, the South Carolina Rules of Magistrates Court and State v. Williams, 301 S.C. 369, 392 S.E.2d 181 (SC 1990).

Prosecutor A
In General Sessions Court a subpoena duces tecum may be issued in accordance with Rule 13, SCRCrimP. It allows the Circuit Clerk of Court to issue such subpoenas for any cause or matter in the General Sessions Court. Magistrate and municipal courts, have no subpoena duces tecum authority, except in a DUI case.

Rule 8.4 (g) provides that an attorney may not, “knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law.”(emphasis added).

If the rules of procedure or substantive law do not allow for the issuance of criminal subpoenas prior to the existence of an arrest warrant or a true billed indictment, then the request or effort of Prosecutor A to obtain or serve such a subpoena would violate this rule. The attorney may also consider Rule 3.3 and Comments (candor toward tribunals) and 4.1(a) (truthfulness in statements to others).

Prosecutor B
Rule 8.4 (a) states that it is professional misconduct for a lawyer to “violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another.” (Emphasis added).

Rule 5.1(c)(1) provides that a lawyer shall be responsible for another lawyers violation of the rules of professional conduct if the lawyer “orders or, with knowledge of the specific conduct, ratifies the conduct involved.”

If the first prosecutor has in fact acted unethically in his conduct of obtaining or serving a subpoena duces tecum prior to the issuance of an active arrest warrant or true billed indictment, a subsequent prosecutor who knowingly utilizes the information would violate Rule 5.1(c)(1) and Rule 8.4 (a) of the Rules of Professional Conduct.