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Advisory Opinion 40

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State Disciplinary Board
Advisory Opinion No. 40
September 21, 1984

Misuse of Subpoenas

Pursuant to the provisions of Rule 4-217 of the Rules and Regulations for the Organization and Government of the State Bar of Georgia (219 Ga. 873, as amended), the State Disciplinary Board, after a proper request for such, renders its opinion concerning the proper interpretation of the Standards of Conduct of the Disciplinary Rules of the State Bar of Georgia.

Question Presented: Whether or not it is a violation of Standard 4 of the Disciplinary Rules of the State Bar of Georgia for an attorney to issue a subpoena for the Production of Documents pursuant to O.C.G.A. § 24-10-22(a), directing the witness to appear at a lawyer's office or some other location, when in fact no hearing or trial is taking place and no notice of such subpoena is served upon opposing counsel?

Whether or not it is a violation of Standard 4 of the Disciplinary Rules of the State Bar of Georgia for an attorney to issue a subpoena pursuant to O.C.G.A. § 9-11-45 when no notice of deposition has been filed and served upon all parties and when no deposition has in fact been scheduled?

Discussion: Disciplinary Standard 4 of the State Bar of Georgia provides as follows:

A lawyer shall not engage in professional conduct involving dishonesty, fraud, deceit or willful misrepresentation. A violation of this Standard may be punished by disbarment.

A subpoena is a judicial writ issued in the name of the court by the clerk when attendance is required at court. (See Agnor's Georgia Evidence § 2-3). In the case of White v. Gulf States Paper, 119 Ga. App. 271, 273 (1969), it was stated that our subpoena statutes were limited only to producing documentary evidence at a hearing or trial. In the White decision, the court noted that the old Georgia Code Section 38-8 and 38-9 dealt only with the production of documentary evidence at a hearing or trial and that the new Act (1966 which constitutes our present subpoena law) did not enlarge the provisions of the repealed law to allow use of a Notice to Produce at depositions. This particular case brought about the amendment to Rule 45 of the Civil Practice Act.

O.C.G.A. § 9-11-45 provides that a subpoena shall issue for persons sought to be deposed and may command the person to produce documents. O.C.G.A. § 9-11-30(b)(1) requires notice to every other party of all depositions. Reading Rule 30 and Rule 45 together, it is obvious that before a subpoena can be issued, notice of the deposition must be given to all parties.

In consideration of the above, a subpoena issued pursuant to O.C.G.A. § 24-10-22(a) should only be issued for actual hearings and trials and should not be requested when in fact no hearing or trial has been scheduled. Likewise, a subpoena issued pursuant to Rule 45 of the Civil Practice Act should be requested and issued only for depositions which have been actually scheduled by agreement between parties or where a notice of deposition has been filed and served upon all parties, and should not be issued when no deposition has been scheduled.

The Board is concerned with the misuse of subpoenas as presented in the two situations discussed because subpoenas are court documents. Non-party witnesses would be misled by such court process into releasing confidential or privileged material without the party having a chance to contest the relevancy, confidentiality or privilege of the material contained in the file because the subpoena is sent without notice to any other party or their counsel. Notice is a concept embraced by the Civil Practice Act. There is no need for notice of a subpoena issue pursuant to O.C.G.A. § 24-10-22(a) because all parties receive notice of hearings and trials, so long as they are real hearings and real trials.

Conclusion: In the opinion of the Board, the use of subpoenas as described herein is a willful misrepresentation to and fraud upon:

(1) The issuing court;
(2) The issuing clerk:
(3) The person or entities to whom the subpoena is directed; and,
(4) The opposing party and counsel, with the purview of Disciplinary Standard 4.



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