Is it ethical to subpoena records a lawyer knows are not relevant just to pressure the other side to settle?

Plain-English summary

A lawyer asked whether he transgressed ethical considerations by subpoenaing hospital records concerning a person who was not a party to the suit. He explained that he used this procedure when a hospital, opposing attorney, or insurance client was slow in supplying information, issuing subpoenas in a pending suit for records not germane to that litigation, and he suggested the practice could even assist a proposed defendant, such as a professional facing a malpractice claim, who would not want the publicity of an action being filed.

The committee observed that present rules and practice give a lawyer great power over the attendance of witnesses and production of records, including obtaining blank subpoenas under the clerk's signature and seal and serving them himself, and that the power carries a corresponding obligation not to abuse it. The committee was unanimous that directing a subpoena to a person is the lawyer's assertion, as an officer of the court, that he believes or has good reason to believe the person knows or has records disclosing facts material to the case in which the subpoena issued. Any other use of the subpoena power, the committee said, is highly improper and unethical and may possibly constitute an actionable abuse of process, though it cautioned that this observation was not a judgment on a question of law. To approve the described practice would, in the committee's words, "prostitute our discovery process," and it must be disapproved in every aspect; if the discovery rules afforded too little latitude, the rules might be changed, but the end suggested did not justify the means.

Currency note

This opinion was issued in 1971, before The Florida Bar's adoption of the 2006 revisions to the Rules of Professional Conduct. It applied the former Code of Professional Responsibility, the subject matter of which is now addressed by Rule 4-3.4 (fairness to opposing party and counsel) and Rule 4-4.4 (respect for the rights of third persons). Treat this page as historical context, not current guidance. Verify against the current rules before relying on any specific requirement mentioned here.

Common questions

Q: Can a lawyer subpoena records he knows are not relevant to pressure a settlement?

A: Under this opinion, no. The committee unanimously found it highly improper and unethical to use the subpoena power for records the lawyer knows are not germane to the litigation as a means of intimidating a defendant or insurer.

Q: What does issuing a subpoena represent, according to the committee?

A: The opinion treats a subpoena directed to a person as the lawyer's assertion, as an officer of the court, that he believes or has good reason to believe the person has records disclosing facts material to the case in which the subpoena issued.

Q: Did the committee decide whether this is an abuse of process under the law?

A: No. The committee said the practice "may possibly constitute an actionable abuse of process" but expressly declined to render a judgment on that question of law.

Background and rules framework

The opinion addressed misuse of compulsory process against a non-party. In current Florida practice, the relevant duties appear in Rule 4-3.4, which governs fairness to opposing parties and counsel, and Rule 4-4.4, which bars using means that have no substantial purpose other than to burden a third person. The Model Rule analogues are Rules 3.4 and 4.4.

Citations and references

Rules of Professional Conduct:

• Former Code of Professional Responsibility generally; no specific disciplinary rule cited [subject matter now in Rules 4-3.4 and 4-4.4]

See also

• FL Bar Ethics Op. 89-3: Threatening Criminal Charges
• FL Bar Ethics Op. 85-3: Worthless-Check Notice

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-71-38/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-71-38-1.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

FLORIDA BAR ETHICS OPINION
OPINION 71-38
September 13, 1971
Advisory ethics opinions are not binding.
It is improper for a lawyer to subpoena records he knows are not germane to pending litigation as a tactic to intimidate the defendant or insurer to cooperate or settle.
Committeeman Massey stated the opinion of the committee:
The inquirer seeks advice on whether he transgresses ethical considerations when he subpoenas hospital records pertaining to a person when such person is not a party to the suit. He explained that this procedure is utilized as a hospital or opposing attorney or the attorney's insurance client is sometimes slow in supplying sufficient information on the involved claim, and he will subpoena the records in a pending suit although the records are not germane to the existing litigation. Also, it is pointed out by the attorney such procedure is very helpful and perhaps of assistance to a proposed defendant if he be a professional man who may be charged with malpractice and would not want the publicity of an action being filed.
Present rules and practice give a lawyer great power with respect to requiring attendance of witnesses and the production of records. The attorney may acquire subpoenas in blank with the clerk's signature and seal thereon and serve them himself. The power is coupled with a corresponding obligation not to abuse it.
The Committee is of the unanimous opinion that directing a subpoena to a person constitutes the assertion of the attorney as an officer of the court that he believes or has good reason to believe the person knows or has records to be produced which would disclose facts material to the case in which the subpoena is issued. Any other use of the subpoena power is highly improper and unethical. It may possibly constitute an actionable abuse of process, although this gratuitous observation should not be constituted as judgment by the Committee on a question of law. To approve the practice described is but to prostitute our discovery process and must be disapproved in every aspect. If our present discovery rules do not afford the attorneys enough latitude and flexibility, we might change the rules but we cannot here agree that the end suggested by the inquirer justifies the means.