In a disciplinary opinion last November, the S.C. Supreme Court publicly reprimanded a family court lawyer for issuing subpoenas without notice to the other side. In civil cases, including the family court, Rule 45 of the Rules of Civil Procedure require that a party provide notice to the other side when a subpoena is issued, and again if materials issued are provided prior to the court date to which they were subpoenaed. In a civil case, subpoenas can be issued under the signature of the attorney, whereas in criminal cases a subpoena must be signed by a clerk or judge.
Other Disciplinary Opinions Re Subpoenas
I have not found many examples of attorneys who have been disciplined for abuse of the subpoena power. In 2007, a magistrate (usually not an attorney) was disciplined for sending a subpoena titled “South Carolina Family Court” with a case number to obtain information for his son-in-law following a hearing in family court. The case was over, there was no court date or case to subpoena the documents to, and the subpoena was faxed with a cover sheet from the magistrate’s office. The magistrate was suspended for 60 days, not necessarily for issuing the subpoena but for using his judicial position for the benefit of his son-in-law.
In 2006, a lawyer was disciplined when her paralegal, at the lawyer’s instruction, drafted and served a subpoena on a bank when there was no pending court case.
There are no disciplinary opinions addressing prosecutors’ abuse of the subpoena power, however. In state court criminal cases, a subpoena must be signed by the clerk or a judge and cannot be issued under the attorneys’ signature. The attorney is not required to provide notice to the other side as they are under the civil rules and in federal court. A subpoena cannot be served on a witness who lives out of state unless a special set of rules are complied with that require 1) an order from a local judge that the witness is material to the case; and 2) a subpoena served on the witness after the opportunity for a hearing in their home state.
The Double Standard
As long as I have been practicing law, prosecutors and police in S.C. have been violating the rules for criminal subpoenas with impunity. I know of one case where a local attorney reported the Horry County Solicitor’s Office for 1) subpoenaing witnesses to appear at the solicitor’s office conference room for interviews when there was no court scheduled; 2) changing the subpoena form to further emphasize that the Court would punish them if they did not appear at the Solicitor’s Office pursuant to the subpoena; 3) keeping clerk of court signature stamps in their desks so they would not have to walk next door to get a subpoena signed; 4) attempting to use evidence obtained from subpoenas that were issued by law enforcement before there was a pending case; and 5) issued subpoenas to out of state witnesses without following the requirements of the statute cited above.
Despite forwarding copies of the illegal subpoenas and a transcript where the former circuit solicitor acknowledged, under oath, his office’s illegal subpoena practices, disciplinary counsel summarily dismissed the complaint with a letter to the local attorney informing them that there was no misconduct found.
I may be cynical, but I feel confident that if myself or any other criminal defense lawyer were to subpoena witnesses to our office, make changes to the wording of a subpoena, stamp a subpoena in our office with a clerk of court’s signature stamp, attempt to use evidence obtained by an illegal subpoena, or issue an illegal subpoena to an out of state witness, we would be disciplined.
The double standard that the appellate courts and ODC apply to lawyer-prosecutors needs to change. I invite ODC to please level the playing field and stop protecting prosecutors who do not follow the rules. I will not subpoena witnesses to my office or otherwise issue illegal subpoenas because, like most attorneys, I believe in the rule of law and I believe that there are very good reasons for the rules that govern lawyers. The lawyers out there that will violate the rules when it benefits them are surely deterred to some extent by disciplinary opinions such as the one discussed here. Unless you are a prosecutor, of course.