Formal Opinion No. 102: Use of Subpoenas in Criminal Proceedings

• Publication year: 1998
• Pages: 93

27 Colo.Law. 93 Colorado Lawyer 1998.

1998, June, Pg. 93. Formal Opinion No. 102: Use of Subpoenas in Criminal Proceedings

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93

Vol. 27, No. 6, Pg. 93

The Colorado Lawyer
June 1998
Vol. 27, No. 6 [Page 93]

Departments
CBA Ethics Committee Formal Opinions
Formal Opinion No. 102: Use of Subpoenas in Criminal Proceedings

The following Formal Opinion was written by
the Ethics Committee of the Colorado Bar Association

[Formal Ethics Opinions are issued for advisory purposes only and are not in any way binding on the Colorado Supreme Court or its Grievance Committee and do not provide protection against disciplinary actions.]

102 Formal Opinion No. 102: Use of Subpoenas in Criminal Proceedings
Adopted March 21, 1998

Introduction

This opinion addresses problems related to the misuse of subpoenas duces tecum in criminal proceedings.1 Effective October 31, 1996, Rule 17(c) of the Colorado Rules of Criminal Procedure was modified to require the subpoenaing party forthwith provide a copy of a subpoena duces tecum to opposing counsel (or directly to the defendant if unrepresented) upon issuance. The rule change was deemed necessary, in part, because some attorneys have misused subpoenas duces tecum in criminal proceedings to obtain exclusive reviews of information, documents, photographs and other objects or reviews earlier than opposing counsel or an unrepresented defendant

Syllabus

In a criminal proceeding, a lawyer may not issue or cause to be issued a subpoena for production of information documents, photographs or other objects designated therein (a subpoena duces tecum) without providing a copy of the subpoena to opposing counsel or an unrepresented defendant when and as required by the applicable Rules of Criminal Procedure and governing law, unless a valid court order provides otherwise. Any attempt at subterfuge to knowingly violate the requirements of applicable rules to obtain an exclusive review of information, documents, photographs or other objects or a review earlier than other counsel or an unrepresented defendant is unethical.

It also is unethical for a lawyer to knowingly mislead the person upon whom a subpoena duces tecum has been served into disclosing privileged or confidential information that the witness would not otherwise knowingly reveal or be compelled to reveal except at the designated criminal proceeding and under judicial scrutiny.

If information, documents, photographs or other objects are inadvertently received from a witness on whom a subpoena duces tecum has been served that the lawyer knows to be, or that appear on its face to be privileged or confidential,2 then the lawyer receiving such information has an ethical obligation to refrain from reviewing the information after becoming aware of the privileged or confidential nature of the information. The lawyer then has an ethical duty to notify the adverse party, if unrepresented, or the adverse party's lawyer and the producing witness. A lawyer must also take reasonable steps to notify the person entitled to invoke the privilege with respect to the information that the lawyer possesses such information and either follow the instructions of the person who is entitled to invoke the privilege with respect to the information or refrain from reviewing the information until a definitive resolution is obtained from the court or other tribunal.

Opinion

Rule 17(c) of the Colorado and Federal Rules of Criminal Procedure confers upon a witness subject to a subpoena duces tecum certain procedural and substantive rights.3 For instance, if the person upon whom the subpoena duces tecum is served...