Can a lawyer use a subpoena to force a witness into a recorded sworn interview without notifying opposing counsel?

Plain-English summary

The committee addressed a local practice that had grown up because trial lawyers found it hard to get written pretrial statements from police officers about civil matters they had investigated. Some lawyers had taken to issuing a subpoena that purported to compel a witness to submit to a recorded interview under oath, without notice to opposing counsel or any chance to be present and cross-examine.

The committee held this improper. It read CR 45 as setting out the purposes for which subpoenas may issue, and ex parte investigation was not among them. A subpoena under CR 45.04 could compel a witness's extra-judicial appearance, but only with a lawyer's certification that notice had been given as CR 30.02 and 31.01 require. The committee described the practice as "pure bluff, tending to create disrespect for judicial process," and so improper under EC 7-25 and DR 7-106(C)(7).

The committee added that simply obtaining a sworn statement from an investigating officer before suit on an ex parte basis was not itself improper; what was improper was using a subpoena to compel it.

Currency note

This opinion was issued in 1976 under Kentucky's former Code of Professional Responsibility (in effect 1971 to 1990), before the Kentucky Bar Association's 1990 adoption of the Rules of Professional Conduct (SCR 3.130) and the substantial 2009 revisions to those rules. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against the current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Could a lawyer subpoena a witness to a private recorded interview without telling the other side?

A: No. The committee held that the civil rules do not authorize subpoenas for ex parte investigation, and using one this way was improper under EC 7-25 and DR 7-106(C)(7).

Q: Was a sworn ex parte statement always off-limits?

A: No. The committee said that obtaining a sworn statement from an investigating officer before suit on an ex parte basis was not itself improper; the impropriety lay in using a subpoena to compel it.

Q: Why did the committee treat the subpoena practice as misconduct?

A: Because the subpoena did not serve a purpose CR 45 authorizes; the committee characterized it as a bluff tending to create disrespect for judicial process.

Background and rules framework

The opinion applied EC 7-25 and DR 7-106(C)(7) of the former Code, which addressed conduct degrading or disrupting the tribunal and process, read against the Kentucky Civil Rules governing subpoenas (CR 45, 45.04) and notice for depositions and written questions to witnesses (CR 30.02, 31.01). The modern analogs are Model Rule 3.4 (fairness to opposing party and counsel) and Model Rule 4.4 (respect for the rights of third persons).

Citations and references

Rules of Professional Conduct:

• DR 7-106(C)(7); EC 7-25 (conduct toward the tribunal); modern analogs Model Rules 3.4 and 4.4

Rules of procedure:

• CR 45, CR 45.04 (subpoenas); CR 30.02, CR 31.01 (notice for depositions and written questions)

See also

• KBA Ethics Op. E-139: Suing a Bar Complainant
• KBA Ethics Op. E-137: Lawyer-Officer Private Practice

Source

• Landing page: https://kybar.org/For-Members/Rules-Ethics-Information/Ethics-Opinions
• Original PDF: https://kybar.org/Portals/0/Admin/Ethics%20Opinions/KBA_E-140.pdf

Original opinion text

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

KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-140
Issued: March 1976

This opinion was decided under the Code of Professional Responsibility, which was in effect from 1971 to 1990. Lawyers should consult the current version of the Rules of Professional Conduct and Comments, SCR 3.130 (available at http://www.kybar.org), before relying on this opinion.

Question:

May a lawyer cause a subpoena to be issued and served in a pending civil action purportedly compelling a witness to submit to a recorded interview under oath, without giving notice of the interview to opposing counsel affording him an opportunity to be present and cross-examine?

Answer:

No.

References:

CR 45, 30.02, 31.01; EC 7-25; DR 7-106(C)(7)

OPINION

In the applicant's community, because of bureaucratic practices in the local police departments, it is usually difficult for trial lawyers to obtain written pretrial statements from police officers concerning civil matters they have investigated. As a result, some lawyers have adopted the practice described in the question.

CR 45 sets out the purposes for which subpoenas may be issued and served. Ex parte investigation is not among them. A subpoena may be issued under CR 45.04 to compel an extra-judicial appearance of a witness, but the rule explicitly requires a lawyer's certification that notice has been given as required by CR 30.02 and 31.01.

The practice described in the question is pure bluff, tending to create disrespect for judicial process. Thus it is improper under EC 7-25 and DR 7-106(C)(7).

The applicant also asks if "there is any impropriety in obtaining a sworn statement from the investigating officer, before the filing of suit, on an ex parte basis also?" As the question is put, the answer obviously is "no." Equally obviously, if the applicant wants to know if it is improper to use a subpoena to obtain such statements, the answer is "yes."

Note to Reader

This ethics opinion has been formally adopted by the Board of Governors of the Kentucky Bar Association under the provisions of Kentucky Supreme Court Rule 3.530 (or its predecessor rule). The Rule provides that formal opinions are advisory only.