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 00-06
A lawyer representing a client in Magistrates Court wants to issue a subpoena duces tecum pursuant to Rule 45 of the Rules of Civil Procedure to third parties in order to obtain documents such as medical records of the opposing party.
Question:
May an attorney issue a subpoena duces tecum in a Magistrate's Court civil matter if the attorney believes that the court lacks the authority to issue such a subpoena?
Summary:
No, an attorney may not issue a subpoena duces tecum in a Magistrate's Court civil matter if the attorney believes that the court lacks the authority to issue such a subpoena.
Opinion:
Under Rule 3.1 of Rule 407, SCRCP, an attorney may not issue a subpoena if there is not a good faith argument that the subpoena is lawful.
Rule 3.1 provides that "a lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein unless there is a basis for doing so that is not frivolous, which includes a good faith argument for an extension, modification, or reversal of existing law."
The Comment to this Rule provides "the advocate has a duty to use legal procedure for the fullest benefit of the client's cause, but also a duty not to abuse the legal procedure. The law, both procedural and substantive, establishes the limits within which an advocate may proceed. However, the law is not always clear and never is static. Accordingly, in determining the proper scope of advocacy, accounts must be taken of the laws ambiguities and potential for change." Therefore, a lawyer must not issue such a subpoena if he or she determines that it exceeds the procedural or substantiative authority of the court.
Rule 3.3 governs an attorney's candor toward the court. Rule 3.3(a)(1) provides that a lawyer not "make a false statement of material fact or law to a tribunal" and 3.3(a)(3) provides that a lawyer should not "fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel."
In summary, an attorney would violate the Rules of Professional Conduct by representing to the Court or to other parties that authority exists under a Magistrate Court subpoena duces tecum to compel disclosure of information if the attorney determines that the court lacks such legal authority.
If an attorney concludes that the court has the authority to legally issue subpoenas duces tecum, then this committee can see no ethical violation for an attorney availing oneself to the court's lawful authority. However, should an attorney conclude that the Magistrate's Court is without legal authority to issue subpoenas duces tecum, then an attorney who issues such a subpoena pursuant to Rule 45, SCRCP would violate Rule 3.1 and 3.3 of the Rules of Professional Conduct.