Shady Subpoenas

January 11, 2018 - Sarah P. Spruill

In In the Matter of Paul Winford Owen, Jr. issued January 10, the South Carolina Supreme Court publicly reprimanded an attorney for issuing subpoenas in violation of Rule 45, SCRCP. 

According to the Court’s factual recitation,  

Respondent issued seventeen subpoenas for the production of documents to other customers of the company, certifying in each subpoena that it was issued in compliance with Rule 45 of the South Carolina Rules of Civil Procedure (SCRCP) and that notice as required by Rule 45(b)(1) had been given to all parties. However, respondent failed to provide prior notice to opposing counsel, and in fact, did not provide copies of the subpoenas to opposing counsel until July 2011, after multiple requests from opposing counsel.

In issuing its reprimand, the Court cited the following Rules of Professional Conduct (Rule 407, SCACR):

  • Rule 3.4(c)(a lawyer shall not knowingly disobey an obligation under the rules of a tribunal, except for an open refusal based on an assertion that no valid obligation exists); Rule 4.1(a)(in the course of representing a client a lawyer shall not knowingly make a false statement of material fact or law to a third person);
  • Rule 8.4(d)(it is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit or misrepresentation); and
  • Rule 8.4(e)(it is professional misconduct for a lawyer to engage in conduct that is prejudicial to the administration justice).

The takeway here is that a lawyer’s obligations in issuing a subpoena are not to be taken lightly and an attorney may face disciplinary action if he or she fails to follow the letter and spirit of the rule. Opinion linked here.

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