Out-of-State Subpoenas, 0802 SCBJ, SC Lawyer, August 2002, #1

Author:John Freeman, Judge
 
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Out-of-State Subpoenas

No. SC Lawyer, August 2002, #1

South Carolina Lawyer

August 2002

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0July 2002

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Ethics Watch

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0 John Freeman, Judge

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0There are lots of ways for a lawyer to get into trouble. Sending a South Carolina subpoena out of state in a civil case is one of them. The Commission on Lawyer Conduct does not smile on lawyers who misuse their power to issue subpoenas. This column deals with the practice of using South Carolina subpoenas to gather evidence in local civil cases from out-of-state witnesses.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Lawyers who issue subpoenas to assist in obtaining discovery from an out-of-state third party witness in a South Carolina case need to understand the rules of discovery (set by the forum state) and the rules governing subpoenas (set by the place where the witness is located). As a rule, the South Carolina subpoena served on a witness residing in a foreign state will be ineffective even if the South Carolina subpoena form is filled out perfectly and timely served. The problem is that the jurisdiction of South Carolina's courts is geographically limited by our state's borders. This jurisdictional reality can lead to an ethics problem.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Rule of Professional Conduct 4.1(a) makes it unethical for a lawyer to "make a false statement of material fact or law to a third person." Rule 4.4 makes it unethical to "use methods of obtaining evidence that violate the legal rights of ... a [third] person." The ethical mandate to be clear and fair in dealing with nonresident third parties does not connect well with the text of subpoenas used in our state. South Carolina's subpoena language is not warm and fuzzy. The document's heading states it has been issued by a court, and recipients are greeted as follows: "YOU ARE COMMANDED. ..." Included in the text of South Carolina subpoenas is the verbiage from Rule 45(c) and (d) advising recipients of various legalities concerning responding to or challenging the subpoena. This language gives stellar notice to witnesses residing in South Carolina; it misses the mark, and is misleading for out-of-state witnesses who are not subject to the subpoena power of South Carolina's courts.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0The potential for deceiving out-of-state recipients arises because omitted...

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