Out-of-state subpoena unethical

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A Virginia lawyer overstepped ethical boundaries in a divorce case when the lawyer asked a Virginia court to issue and enforce an unenforceable subpoena to obtain an out-of-state resident’s financial documents, according to the Virginia State Bar Standing Committee on Legal Ethics.

In LEO #1495, the committee said the Virginia lawyer acted improperly in asking a Virginia court to issue a subpoena duces tecum for financial documents from a North Carolina resident, when the Virginia lawyer knew the subpoena was unenforceable.

The advisory opinion also said that the lawyer should not have taken the additional step of requesting a show cause summons which asked for jail time for the North Carolina resident for failure to comply with the original summons. Because the North Carolina resident feared imprisonment, he complied with the subpoena and supplied the documents, according to the LEO.

The LEO has left some Virginia family law attorneys wondering how far they can go in using a subpoena duces tecum against a non-Virginia resident.

The ethics committee said that the disciplinary rule that controlled the inquiry was DR 1-102(A)(4), which prohibits a lawyer from engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation which reflects adversely on a lawyer’s fitness to practice law.

The hypothetical request which prompted LEO #1495 stated that the subpoena in question was signed by the clerk of court and returned to the attorney, who apparently mailed it by certified mail to the nonresident.

The lawyer who requested the LEO alleged that the lawyer who asked for the subpoena knew it was unenforceable in another state because earlier in the same case, a bank in North Carolina had refused to release bank records requested by a similar subpoena.

Rustburg lawyer Frank W. Morrison, vice-chair of the VSB’s Family Law Section’s board of governors, said that it is not uncommon for domestic relations lawyers, and litigators generally, to look beyond Virginia for financial or psychological records, or other records which may be relevant to property settlements or child custody matters.

Obtaining out-of-state documents can be a real problem, said Charlottesville family law attorney Susan Davis White, also a member of the board of governors. Many companies today may keep central payroll records in a home office outside Virginia, she said.

The LEO said that the Virginia lawyer acted improperly in requesting the subpoena when the subject had not agreed to accept service and the lawyer knew the subpoena was unenforceable.

Lawyers do not necessarily want to yield the advantage they may have in merely suggesting to out-of-state entities that the documents can be legally summoned.

And some lawyers just do not “focus on the problem whether the subpoena is enforceable,” said White.

According to family law attorneys familiar with the LEO, it has raised questions about the propriety of sending a simple cover letter with the subpoena. Should the lawyer provide some notice to the nonresident that the subpoena ultimately is unenforceable? Is the simple act of sending letter with the subpoena a misrepresentation?

The LEO almost suggests “a duty to disclose non-enforceability” or to include some kind of notice or disclaimer in a cover letter in order to avoid too strong a suggestion that the recipient is legally bound to comply with the subpoena, said Morrison.

“The main thing is to make sure there is not any actual or implied misrepresentation,” about the Virginia court’s authority, said Morrison.

In some cases, lawyers can make informal arrangements to obtain the necessary out-of-state documents.

Often out-of-state parties are willing to comply voluntarily with a subpoena, and merely want the documentation of the formal request for their own files, said one family law practitioner.

In the second part of the LEO, the committee said that since the initial subpoena and the later request for a show cause order were improper, the Virginia lawyer’s later request for jail time resulting from the North Carolina’s lack of response likewise would be improper.

The committee’s get-tough stance on the request to show cause was clearly justified, according to Morrison.

Requests for an order to show cause frequently are abused in domestic relations litigation, said Morrison.

Such orders should not be filed when one of the parties is merely seeking an interpretation of a document. Instead, a request should “only be filed when it’s clear that the person is in contempt. [In those cases] the attorney is under a greater duty of care,” said Morrison.