Can a lawyer warn of contempt or sanctions in a subpoena duces tecum that is served by mail rather than personally?

Plain-English summary

Opinion 729 answers a lawyer's question about whether he may include language threatening sanctions for noncompliance when he sends a subpoena duces tecum by mail. The inquirer noted that, because sanctions can be imposed only when a subpoena is served personally and not by mail, such a threat might be a false statement of material fact or law to a third person under RPC 4.1(a)(1).

The Committee agrees that subpoenas sent by mail should not include language threatening sanctions, and it explains why. Under the Rules of Court, a subpoena for depositions or document production must be issued and served as prescribed by Rule 1:9, and Rule 1:9-3 requires personal service; failure to obey a subpoena is contempt of court under Rule 1:9-4. When a subpoena is sent by ordinary mail rather than served personally, a recipient who does not comply cannot be held in contempt because the court lacks personal jurisdiction over the recipient. Citing NJ Cure v. Estate of Robert Hamilton, the opinion notes that mailed document subpoenas can work when everyone cooperates, but mail is not an effective way to serve an unwilling non-party.

The Committee recognizes that it is common, longstanding practice to include language warning that a recipient can be held in contempt and face sanctions. That language is accurate when the subpoena is served personally. When the subpoena is mailed, however, noncompliance does not subject the recipient to sanctions, because the sender would first need to take an interim step and personally serve the subpoena before seeking sanctions.

The Committee declines to hold that the threat is a false statement under RPC 4.1(a) in all cases, but provides notice to the bar that the language misstates the immediate consequences for the recipient of a mailed subpoena. Going forward, it warns, lawyers who intentionally include such language in mailed subpoenas, threatening the recipient with sanctions for noncompliance, may be violating RPC 8.4(c) (conduct involving misrepresentation).

In practice

The opinion holds that, under the New Jersey rules as they stood at the time of the opinion, a lawyer should not include language threatening sanctions for noncompliance in a subpoena duces tecum served by mail, because contempt and sanctions depend on personal service. Per the opinion, the Committee declined to treat the threat as a false statement under RPC 4.1(a) in every case, but put the bar on notice that the language misstates the immediate consequences of a mailed subpoena and that a lawyer who intentionally includes it may be engaging in misrepresentation under RPC 8.4(c). Because this opinion predates the most recent five years, verify the current Rules of Court on subpoena service before relying on the specific service requirements it describes.

Common questions

Q: Can I keep the standard 'failure to comply may result in contempt and sanctions' language if I mail a subpoena?

A: The opinion concludes you should not. It explains that sanctions and contempt require personal service, so the threat misstates the immediate consequences when the subpoena is mailed.

Q: Is including that language automatically a false statement under RPC 4.1?

A: No. The Committee declined to find the language is, in all cases, a false statement under RPC 4.1(a), but it warned that the language is at a minimum inaccurate and misleading.

Q: What rule did the Committee point to for the warning?

A: The opinion warns that lawyers who intentionally include such language in mailed subpoenas may be violating RPC 8.4(c) (conduct involving misrepresentation).

Q: Why can't a mailed subpoena be enforced by contempt?

A: The opinion explains that Rule 1:9-3 requires personal service and that a court lacks personal jurisdiction to hold a non-complying recipient in contempt when the subpoena was sent by ordinary mail.

Background and rules framework

The opinion interprets RPC 4.1(a) (truthfulness in statements to others) and RPC 8.4(c) (conduct involving dishonesty, fraud, deceit, or misrepresentation), the New Jersey analogs to Model Rules 4.1 and 8.4. The analysis turns on the New Jersey Rules of Court governing subpoenas: Rule 1:9 (issuance and service), Rule 1:9-3 (personal service), Rule 1:9-4 (failure to obey is contempt), and Rule 4:14-7(a) (deposition and document subpoenas).

Citations and references

Rules of Professional Conduct:

• MR 4.1 / NJ RPC 4.1(a), 4.1(a)(1) (truthfulness in statements to a third person)
• MR 8.4 / NJ RPC 8.4(c) (conduct involving misrepresentation)

Court rules:

• N.J. Court Rules 1:9, 1:9-3, 1:9-4, 4:14-7(a)

Cases:

• NJ Cure v. Estate of Robert Hamilton, 407 N.J. Super. 247 (App. Div. 2009)

See also

• ABA Formal Op. 06-439: Truthfulness in Negotiation
• ABA Formal Op. 01-422: Secretly Recording Conversations

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2015/acp729-1.html
• Issuing authority: New Jersey Supreme Court Advisory Committee on Professional Ethics, via the NJ Courts Supreme Court Committees page

Original opinion text

Reproduced from a full-text mirror of the official opinion for research purposes. The linked official source controls.

Appointed by the Supreme Court of New Jersey

OPINION 729

Lawyers May Not Threaten Sanctions for Noncompliance When Sending a Subpoena Duces Tecum by Mail

The Advisory Committee on Professional Ethics received an inquiry from a lawyer who asked whether, consistent with the Rules of Professional Conduct, he may include language threatening sanctions for noncompliance when he sends a subpoena duces tecum by mail. As sanctions may only be imposed when the subpoena is served personally, and not by mail, Inquirer suggested that such a threat may be a false statement of material fact or law to a third person in violation of Rule of Professional Conduct 4.1(a)(1). The Committee agrees that subpoenas sent by mail should not include language threatening sanctions. The Committee declines to find that such language is, in all cases, a false statement but it warns lawyers that including this threat in subpoenas that are mailed is, at a minimum, inaccurate and misleading.

A subpoena for taking of depositions and/or the production of documents in a civil action must be issued and served as prescribed by Rule 1:9. R. 4:14-7(a). Rule 1:9-3 requires that subpoenas be served personally. Failure to obey a subpoena is deemed contempt of court. R. 1:9-4. When a subpoena is sent by ordinary mail instead of being served personally, a recipient who fails to obey the subpoena cannot be deemed in contempt of court as the court lacks personal jurisdiction over the recipient.

Parties and witnesses may reach an agreement regarding mailed subpoenas. Such an agreement, however, does not provide a court with contempt power for failure to comply with a mailed subpoena. The service of document subpoenas by mail may be an effective way of conducting discovery when all involved are willing to cooperate . . . [but] [m]ail service is not an effective manner of serving a subpoena on an unwilling non-party under the New Jersey Rules of Court . . . . NJ Cure v. Estate of Robert Hamilton, 407 N.J. Super. 247, 250 (App. Div. 2009).

The Committee is aware that it has become common and longstanding practice for lawyers to include language in a subpoena stating that the recipient can be considered in contempt of court and face sanctions if he or she does not comply. Such language is accurate when the subpoena is served personally. If the subpoena is mailed, failure to comply does not subject the recipient to sanctions since the sender would need to take an interim step personally serve the subpoena prior to seeking sanctions.

The Committee does not find that the threat is a false statement under Rule of Professional Conduct 4.1(a), but it hereby provides notice to the bar that the language misstates what the immediate consequences are for the recipient of a mailed subpoena. Going forward, lawyers who intentionally include such language in mailed subpoenas, threatening the recipient with sanctions for noncompliance, may be violating Rule of Professional Conduct 8.4(c) (conduct involving misrepresentation).