In Kentucky, may a lawyer use a subpoena duces tecum to obtain documents from a non-party and then withhold them from the other parties, by canceling a deposition or by inviting certification in lieu of trial attendance?

Plain-English summary

The Committee answered two related questions about using a subpoena duces tecum to obtain documents from a non-party witness in a civil case in state court. It confined the analysis to the Rules of Professional Conduct (noting the civil rules require that all parties get notice of a deposition and the subpoenaed documents, and that CR 45.03(2) requires copies of all documents received to be furnished to all other parties absent a court order for good cause).

On Question 1, the Committee concluded that a lawyer may not notice a deposition, serve a subpoena duces tecum on a non-party, then quietly cancel the deposition on receiving the documents while leading opposing counsel to believe the entire request is withdrawn, all without sharing the documents. Reduced to basics, the lawyer would use court-authorized discovery procedures and the power of a subpoena to secretly obtain documents. That conduct violates KRPC 8.3 (misconduct involving dishonesty, fraud, deceit, or misrepresentation), KRPC 4.1 (no false statement of material fact to a third person), and KRPC 3.4(c) (no knowing disobedience of a tribunal's rules), and it parallels the conduct condemned in KBA E-356 (1993).

On Question 2, the Committee concluded the same rules are violated when a lawyer serves a trial subpoena duces tecum and invites the recipient to certify and send records directly in lieu of attending trial, then does not share them. The lawyer would be conducting discovery under the power of a subpoena without the notice safeguards of the discovery rules, misusing the subpoena contrary to CR 45.01 and failing to furnish documents as CR 45.03(2) requires. The Committee expressed no view on whether, as a matter of law, a litigant may "cancel" a subpoena and relieve the recipient of the duty to appear.

Currency note

This opinion was issued in 2003 and predates the Kentucky Supreme Court's substantial 2009 revisions to the Rules of Professional Conduct (SCR 3.130), under which Rule 8.3 (the misconduct rule referenced here) was renumbered to Rule 8.4. The Kentucky Bar Association notes that lawyers should consult the current version of the rules before relying on this opinion. Treat this page as historical context, not current guidance.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 cancel a noticed deposition after the non-party produced subpoenaed documents, and keep the documents to itself?

A: Per the opinion, no. The Committee concluded that obtaining documents under the subpoena while leading opposing counsel to believe the request was canceled, and not sharing them, violates KRPC 3.4(c), 4.1, and 8.3.

Q: Could a lawyer use a trial subpoena to have records certified and sent directly, without telling the other parties?

A: The opinion concluded no. Using a trial subpoena to conduct discovery without the discovery rules' notice and without sharing the documents (as CR 45.03(2) requires) violates KRPC 3.4 and 8.3.

Q: Which duty does this conduct primarily offend?

A: Per the opinion, the duty against dishonesty and deceit (KRPC 8.3), reinforced by truthfulness to third persons (KRPC 4.1) and obedience to the rules of the tribunal (KRPC 3.4(c)).

Q: Did the opinion decide the litigant's power to cancel a subpoena?

A: No. The Committee expressly declined to opine on whether, as a matter of law, a civil litigant may cancel a subpoena and relieve the recipient of the obligation to appear.

Background and rules framework

The opinion interprets KRPC 3.4 (fairness to opposing party and counsel, including 3.4(c) on disobeying a tribunal's rules; the Model Rule 3.4 counterpart), KRPC 4.1 (truthfulness to third persons; Model Rule 4.1), and KRPC 8.3 (misconduct, later renumbered to the Model Rule 8.4 area), read against the Kentucky Rules of Civil Procedure governing subpoenas (CR 30.02, 45.01, 45.02, 45.03) and the medical-records statute KRS 422.305.

Citations and references

Rules of Professional Conduct:

• MR 3.4 / KRPC 3.4(c) (fairness to opposing party; disobeying a tribunal's rules)
• MR 4.1 / KRPC 4.1 (truthfulness to third persons)
• MR 8.4 / KRPC 8.3 (misconduct involving dishonesty, fraud, deceit; renumbered to 8.4 in 2009)

Statutes and rules:

• CR 30.02, 45.01, 45.02, 45.03 (depositions and subpoenas); KRS 422.305 (certified medical records)

Cases:

• Munroe v. Kentucky Bar Association, 927 S.W.2d 839 (Ky. 1996), discipline for ex parte use of a subpoena to obtain non-party documents
• Anderson v. Commonwealth, 63 S.W.3d 135 (Ky. 2002), release of a subpoenaed witness

Other opinions cited:

• KBA E-356 (1993): canceling a deposition while taking statements "under the cloak" of the subpoena
• KBA E-423: companion treatment of subpoenas in criminal cases

See also

• KBA Ethics Op. E-419: Ex Parte Meetings Between Prosecutors and Judges
• KBA Ethics Op. E-417: Sharing Office Space With Nonlawyers

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-422.pdf

Original opinion text

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

Kentucky Bar Association
Ethics Opinion KBA E-422

Issued: November 2003

Since the adoption of the Rules of Professional Conduct in 1990, the Kentucky
Supreme Court has adopted various amendments, and made substantial
revisions in 2009. For example, this opinion refers to Rule 8.3, which was
renumbered to Rule 8.4. Lawyers should consult the current version of the rules
and comments, SCR 3.130 (available at http://www.kybar.org), before relying
on this opinion.

Subject:

Use of Subpoena Duces Tecum to Obtain Documents from a Non-party in a Civil
Case in state court.

Question 1:

May a lawyer who has noticed a deposition and served a subpoena duces tecum on a
non-party witness, cancel the deposition upon receipt the subpoenaed documents,
without providing the other parties with copies of all documents obtained.

Answer:

No

Question 2:

May a lawyer serve a trial subpoena duces tecum on a person or entity and orally or
in writing request the subpoenaed person or entity to “certify” the records and
provide them directly to the requesting lawyer in lieu of attending the trial, without
giving notice of the subpoena or the documents produced to the other parties?

Answer:

No

References:

Rules 3.4, 4.1 and 8.3, Kentucky Rules of Professional Conduct (SCR 3.130); KBA
E-356 (1993); CR 30.02, 45.01, 45.02, 45.03; KRS 422.305; Anderson v.
Commonwealth, Ky., 63 S.W.3d 135 (2002); Munroe. v. KBA, Ky., 927 S.W.2d
839 (1996).

Opinion
Once again, the Committee has received inquiries about the ethical limitations on the use of a
subpoena duces tecum to compel the production of documents from a non-party witness in a civil
case. The two questions presented raise different but related concerns about the ethical duty to give
notice and share information about documents obtained pursuant to a lawfully issued subpoena.
Although both questions implicate the Rules of Civil Procedure  particularly those rules relating to
discovery and subpoenas  this opinion is confined, to the extent possible, to a discussion of the
Rules of Professional Conduct. We emphasize that the discussion that follows relates only to civil
cases in state court. Additional considerations arise in the context of criminal cases and they are
addressed in KBA E-423 .

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I.

The Use of a Subpoena Duces Tecum in Discovery in a Civil Case

Before beginning the discussion of the ethical issues presented by this inquiry, a brief description of
the discovery process may be useful. The Kentucky Rules of Civil Procedure authorize litigants to
engage in various forms of discovery and set forth the procedures to be followed. See CR 26.01 –
37.05. Under the civil rules, if a party wishes to compel the production of documents from a nonparty witness, a deposition must be noticed and a subpoena duces tecum must be issued.1 Under the
rules, written notice of both the deposition and the documents subpoenaed must be given to all
parties to the action.2
CR 45.01 reinforces the limited purpose of the subpoena and states that subpoenas shall not be used
for any purpose except to command the attendance of the witness and production of documentary or
other tangible evidence at a deposition, hearing or trial.”3 In the interest of fairness,
CR 45.03(2) requires that all documents received pursuant to a subpoena be shared with all other
parties. Specifically it provides that “copies of all documents received in response to the subpoena
(or in lieu of proceedings hereunder) shall be forthwith furnished to all other parties to the action
except on motion and for good cause shown (emphasis added).” Although it is not the Committee’s
goal to analyze all of the intricacies of the discovery rules, it is clear that they are designed to ensure
that all participants have notice and equal access to information obtained from non-party witnesses
pursuant to these procedures.
This inquiry contemplates that the requesting lawyer will notice a deposition of a non-party witness;
cause a subpoena duces tecum to be issued and served for production of designated documents and,
without notice to the other parties, arrange for the non-party witness to supply the documents, and
then unilaterally “cancel” the deposition without providing opposing counsel with copies of the
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CR 30.02 provides in relevant part: “If a subpoena duces tecum is to be served on a person to be examined,
the designation of the materials to be produced as set forth in the subpoena shall be attached or included in the
notice.” CR 45.02 provides: “A subpoena may also command the person to whom it is directed to produce the
books, papers, documents, or tangible things designated therein…” Although the state rule seems to require a
deposition in order to obtain documents from a non-party witness, the federal rules have eliminated such a
requirement. FRCP 45 was amended in 1991 to provide that “a person commanded to produce and permit
inspection and copying of designated books, papers, documents or tangible things,… need not appear in person
at the place of production or inspection unless commanded to appear for deposition, hearing or trial.” The
Advisory Committee Notes state that one of the reasons for the amendment was to “facilitate access outside the
deposition procedure provided by Rule 30 to documents and other information in possession of persons who
are not parties.”

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CR 30.02 (1) provides:
A party desiring to take the deposition of any person upon oral examination shall give reasonable
notice in writing to every other party to the action. The notice shall state the time and place for taking
the deposition and the name and address of each person to be examined …. If a subpoena duces
tecum is to be served on the person to be examined, the designation of the materials to be produced as
set forth in the subpoena shall be attached or included in the notice.

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The rule creates one exception to the deposition requirement by providing “upon order of the Court, with the
agreement of the parties, documents may be produced without a deposition.” In addition, KRS 422.305
provides a special procedure for the production of medical records and permits hospitals to produce “certified”
records in lieu of attending a deposition (KRS 422.305). These are the only exceptions provided for by rule or
statute.

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documents. The implication is that the requesting lawyer obtains the subpoena under the authority of
the discovery rules and provides the required notice, but then leads opposing counsel to believe that
the entire discovery request has been “cancelled” (including the request for documents) when in fact
the lawyer still is relying upon the power of the subpoena to obtain the documents. Reduced to its
most basic terms, the question asks whether a lawyer may use the court authorized discovery
procedures and the legal power of a subpoena to secretly obtain documents from a non-party witness.
The answer is clearly no.
The Rules of Professional Conduct are designed to preserve the integrity of the adversary system – to
insure that all parties are treated fairly and that lawyers observe not only their obligations to their
clients, but also their obligations as officers of the court. These goals and values are reflected
throughout the rules, but are clearly apparent in RPC 3.4, 4.1 and 8.3. The most important of these
rules is RPC 8.3, which declares that it is professional misconduct for a lawyer to “engage in conduct
involving dishonesty, fraud, deceit or misrepresentation.” A lawyer who uses the discovery process
and subpoena power to compel a witness to provide documents, but then leads the other parties to
believe that the procedure and accompanying obligations have been cancelled, clearly violates RPC
8.3. The lawyer has not only misused the power of the subpoena and misled the non-party witness
with regard to his or her obligations, but the lawyer also has deceived the other parties to the
proceeding. The lawyer also has violated RPC 4.1, which provides that “a lawyer shall not
knowingly make a false statement of material fact or law to a third person.” In addition, such
conduct violates RCP 3.4(c), which provides that “a lawyer shall not knowingly or intentionally
disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion
that no valid obligation exists.” In this case, the rules of the tribunal require that a subpoena only be
used to require attendance at a proceeding and that all documents obtained pursuant to a subpoena
shall be furnished to all other parties to the proceeding. By failing to share the documents, the
lawyer has not only engaged in deceit and misrepresentation, but he or she also has “knowingly and
intentionally disobeyed an obligation under the rules of the tribunal” in violation of RPC 3.4(c).
This devious conduct is similar to that described in KBA E-356 (1993), which involved a lawyer
who scheduled a deposition, then advised opposing counsel that it had been cancelled, but proceeded
to take statements from the non-party witness “under the cloak of the previously issued subpoena.”
In the view of this Committee, the latter conduct “circumvented the rules and misled opposing
counsel and witnesses” in violation of Rules 3.4(c), 4.1 and 8.3. (See Munroe v. KBA, Ky., 927
S.W.2d 839 (1996) where a lawyer was disciplined for, among other things, using an ex parte
subpoena to obtain documents from a non-party.)
For the reasons discussed above, it is the Committee’s view that a lawyer violates the Rules of
Professional Conduct by giving notice of a deposition and causing a subpoena duces tecum to be
served on a non-party witness and then canceling the deposition upon receipt of the subpoenaed
documents, without furnishing the other parties with copies of the documents.
II.

The Use of a Trial Subpoena

The second question differs from the first in that it involves a subpoena compelling the production of
documents at trial, rather than a subpoena issued pursuant to the discovery rules. In this scenario, it
is contemplated that the trial subpoena will be accompanied by an invitation to certify or otherwise
provide the records directly to the lawyer in lieu of appearing at trial. In some cases, the lawyer even
provides the subpoenaed witness with a prepared certification form. As in the question above, the
lawyer causing the subpoena duces tecum to be issued and served obtains the documents and does
not share them with opposing counsel. The prejudice to the opposing party is compounded by the

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fact that, unlike the discovery situation where the opposing party has notice that the subpoena has
been issued, the Rules of Civil Procedure do not appear to require any kind of notice of a trial
subpoena.
As in the question above, CR 45.01 is relevant in that it prohibits the use of a subpoena except to
compel attendance and production of documents at an official proceeding. Here the letter or other
request accompanying the subpoena suggests that the lawyer’s primary purpose is not to compel the
attendance at trial, but only to obtain the documents. It appears that the lawyer is engaging in
discovery, armed with the power of a subpoena, without complying with any of the procedural
safeguards of notice provided for under the discovery rules. By using the subpoena for a purpose
other than authorized by the rules, the lawyer has violated the ethical rules relating to dishonesty and
deceit as discussed above (RPC 8.3). Moreover, irrespective of the lawyer’s initial motive, the
failure to provide opposing counsel with copies of the documents obtained, as required by CR
45.03(2), is a violation of the rules of the tribunal and, as a consequence, is an ethical violation under
RPC 3.4.
In both Questions I and II, the Committee has addressed the obligations of the lawyer under the
Kentucky Rules of Professional Conduct. Those rules prohibit dishonest and deceitful conduct and
obligate the lawyer to comply with the rules of the tribunal, except for an open refusal that no
obligation exists. It is the view of the Committee that the conduct contemplated by both questions
violates RPC 3.4, 4.1 and 8.3. The Committee expresses no view on whether, as a matter of law, a
lawyer in a civil case has the power to” cancel” a subpoena and relieve the subpoenaed person of his
or her obligations to appear.4
In conclusion, it should be noted that this opinion focuses on the ethical issues that arise in
conjunction with the use of a subpoena in civil cases in state court. It was not drafted to reflect the
practice in federal court or before administrative agencies. The Committee notes, however, that all
members of the Kentucky Bar Association are bound by the same ethical rules, irrespective of where
they practice. Lawyers must comply with the procedural rules of the tribunal and may not engage in
conduct that is dishonest or otherwise violates the Rules of Professional Conduct.
Approved by Ethics Committee: October 21, 2003

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The issue of the authority of a civil litigant to cancel a subpoena is mentioned because of the recent decision in
Anderson v. Commonwealth, Ky., 63 S.W.3d 135 (2002). In that case, a criminal defendant sought a new trial
on several grounds, including newly discovered evidence. His motion was based, in part, upon the fact that the
prosecutor had “released” a trial witness who he previously had subpoenaed. Although the Court declined to
reverse on this basis, it took the opportunity to express its view that the prosecutor had acted improperly, in part
because “he knew the defense was relying on the Commonwealth’s subpoena and purposefully did not disclose
that he intended to, or had already, released …” The majority noted that subpoenas are issued by the court
(though requested by a party) and stated further that once a subpoena is issued, the witness can only be excused
by the court. Three Justices dissented.

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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.

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