In a Colorado criminal case, can a lawyer use a subpoena duces tecum to get documents from a witness without notifying the other side, and what must the lawyer do if a subpoenaed witness sends privileged material?

Plain-English summary

Opinion 102 (adopted March 21, 1998) addressed the misuse of subpoenas duces tecum in criminal proceedings. After a 1996 amendment to Colorado Rule of Criminal Procedure 17(c) required the subpoenaing party to "forthwith provide a copy of the subpoena to opposing counsel (or directly to the defendant if unrepresented) upon issuance," the Committee concluded that a lawyer may not issue such a subpoena to obtain an exclusive review, or a review earlier than other parties, without the required notice, unless a valid court order provides otherwise. Any attempt at subterfuge to knowingly violate the applicable rules to gain such an advantage was unethical.

The opinion concluded it was also unethical for a lawyer to knowingly mislead a subpoenaed witness into disclosing privileged or confidential information the witness would not otherwise reveal except at the proceeding under judicial scrutiny, such as by attaching a letter telling the witness they need not appear if they simply mailed the requested documents to the lawyer. Drawing on CBA Formal Opinions 65 and 86 (Revised), the Committee said a lawyer communicating with a non-party witness should identify himself, state the reason for the communication, and not exploit the imbalance in knowledge between lawyer and lay witness. It anchored these duties in Colo. RPC 3.4, 4.1, 4.3, 4.4, and 8.4.

On inadvertent production, the opinion concluded that a lawyer who receives material from a subpoenaed witness that the lawyer knows, or that appears on its face, to be privileged or confidential must stop reviewing it once aware of its nature, notify the adverse party (or the adverse party's lawyer) and the producing witness, take reasonable steps to notify the person entitled to invoke the privilege, and then either follow that person's instructions or refrain from reviewing until a court resolves the matter. The Committee drew this from ABA Formal Opinions 94-382 and 92-368. The opinion defined "confidential" documents narrowly as those subject to a legally recognized exemption from discovery, listing examples such as work product and statutorily protected mental-health, child-abuse, and HIV-related records, and distinguished documents that someone merely expects to be private.

Currency note

This opinion was issued in 1998, before Colorado's 2008 revisions to the Rules of Professional Conduct. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Could a Colorado lawyer use a criminal subpoena duces tecum to get documents before the other side saw them?

A: No. The opinion concluded that, after the 1996 amendment to Crim. P. 17(c), a lawyer could not use such a subpoena to obtain an exclusive or earlier review of documents without forthwith notifying opposing counsel or an unrepresented defendant, absent a valid court order.

Q: Could the lawyer tell a subpoenaed witness they need not appear if they just mailed the documents?

A: The opinion treated that as potentially unethical. It concluded a lawyer may not knowingly mislead a subpoenaed witness into disclosing privileged or confidential information the witness would not otherwise be compelled to reveal except at the proceeding.

Q: What if a witness inadvertently sent privileged documents?

A: The opinion concluded the lawyer had to stop reviewing the material once aware of its privileged or confidential nature, notify the adverse party (or counsel) and the producing witness, take reasonable steps to notify the privilege holder, and either follow that person's instructions or refrain from reviewing until a court resolved the issue.

Q: What counted as "confidential" for this purpose?

A: A narrow category. The opinion defined confidential documents as those subject to a legally recognized exemption from discovery (for example, work product or statutorily protected mental-health, child-abuse, or HIV-related records), not merely documents someone expected to be private.

Background and rules framework

The opinion read Colorado Rule of Criminal Procedure 17(c) (as amended effective October 31, 1996) together with the Colorado Rules of Professional Conduct: Rule 3.4 and 3.4(c) (fairness to opposing party; not knowingly disobeying a tribunal's rules), Rule 4.1 (truthfulness in statements to others), Rule 4.3 (dealing with unrepresented persons), Rule 4.4 (respect for the rights of third persons), and Rule 8.4 (dishonesty, fraud, deceit, or misrepresentation). It compared the Colorado and Federal versions of Rule 17(c) and relied on its earlier Formal Opinions 65 and 86 (Revised) on communicating with non-party witnesses.

Citations and references

Rules of Professional Conduct:

• Colo. RPC 3.4 & 3.4(c) / Model Rule 3.4 (fairness to opposing party; obeying tribunal rules)
• Colo. RPC 4.1 / Model Rule 4.1 (truthfulness in statements to others)
• Colo. RPC 4.3 / Model Rule 4.3 (dealing with unrepresented persons)
• Colo. RPC 4.4 / Model Rule 4.4 (respect for the rights of third persons)
• Colo. RPC 8.4 / Model Rule 8.4 (misconduct)

Court rules:

• Colo. R. Crim. P. 17(c) (as amended effective Oct. 31, 1996)
• Fed. R. Crim. P. 17(c)

Cases:

• Bresnahan v. District Court, 164 Colo. 263, 434 P.2d 419 (1967), criminal proceeding includes all phases of a case
• United States v. Hart, 826 F. Supp. 380 (D. Colo. 1993), no ex parte procedure for Rule 17(c) document subpoenas
• United States v. LaFuente, 991 F.2d 1406 (8th Cir. 1993), improper to use trial subpoenas to compel pretrial attendance

Other opinions cited:

• ABA Formal Op. 94-382 (1994): unsolicited receipt of privileged or confidential materials
• ABA Formal Op. 92-368 (1992): inadvertent disclosure of confidential materials
• CBA Formal Op. 65 and CBA Formal Op. 86 (Revised): communicating with non-party witnesses

See also

• CBA Formal Op. 108: Inadvertently Disclosed Documents
• ABA Formal Op. 06-440: Unsolicited Privileged Materials
• ABA Formal Op. 473: Subpoenas for Client Information

Source

• Landing page: https://www.cobar.org/ethicsopinions
• Original PDF: https://www.cobar.org/Portals/COBAR/repository/ethicsOpinions/FormalEthicsOpinion_102_2011.pdf