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
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.
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?
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.
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).
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).
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.