Opposing counsel subpoenaed a physician's records without notifying the parties or a hearing. Is that a rules violation, and what can I do about it?

Plain-English summary

The inquiring attorney asked whether the opposing party's attorney, during the pendency of litigation, could issue a subpoena duces tecum to a physician requesting records without providing notice to all parties involved and without providing a hearing before a tribunal or at a records deposition.

The panel said that in this situation the inquiring attorney is asking it to comment on another attorney's conduct, which the panel declines to do, citing Ethics Advisory Panel Rule 3. It added, however, that the inquiring attorney may rely on Rule 8.3 ("Reporting Professional Misconduct") and Rule 8.4 ("Misconduct"): if the inquiring attorney believes the opposing attorney's conduct rises to the level of misconduct enunciated in the Rules, then the attorney "shall inform the appropriate professional authority."

The panel expressly declined to render an opinion regarding the rules on issuing subpoenas.

In practice

Under this opinion, the panel will not judge whether opposing counsel's no-notice subpoena duces tecum to a physician violated the rules, because that would require commenting on another attorney's conduct and on subpoena procedure, both outside what the panel will opine on. The opinion points the inquiring attorney to Rules 8.3 and 8.4: if the conduct rises to misconduct under the Rules, the attorney's recourse is to report it to the appropriate professional authority.

Common questions

Q: Will the panel tell me if opposing counsel's subpoena was improper?

A: Per the opinion, no; the panel declined to comment on another attorney's conduct (Ethics Advisory Panel Rule 3) and declined to opine on the rules for issuing subpoenas.

Q: What can I do if I think the conduct was misconduct?

A: Per the opinion, the attorney may rely on Rules 8.3 and 8.4, and if the attorney believes the conduct rises to the level of misconduct in the Rules, the attorney shall inform the appropriate professional authority.

Q: Why won't the panel decide the subpoena question?

A: Per the opinion, the inquiry asks the panel to comment on another attorney's conduct and on subpoena procedure, and the panel declined both.

Background and rules framework

The opinion invokes Ethics Advisory Panel Rule 3 to decline commenting on another lawyer's conduct, and points to Rhode Island Rules 8.3 (reporting professional misconduct) and 8.4 (misconduct), corresponding to the same-numbered Model Rules, as the framework for the inquiring attorney's own obligations if the conduct rises to misconduct.

Citations and references

Rules of Professional Conduct:

• MR 8.3 (reporting professional misconduct)
• MR 8.4 (misconduct)
• RI RPC 8.3, 8.4

Statutes:

• None cited.

Cases:

• None cited.

Other opinions cited:

• None cited.

See also

• RI EAP Op. 92-72: Reporting Opposing Counsel's Direct Contact With a Represented Client
• RI EAP Op. 90-04: Duty to Report Opposing Counsel's Improper Affidavits
• RI EAP Op. 92-80: Confidentiality When a Prior Lawyer Knew of a Client's Fraud

Currency note

This opinion was issued in early 1993 (Opinion 93-06, issued March 15, 1993), after the Rhode Island Supreme Court adopted the Model Rules of Professional Conduct effective November 15, 1988, and it applies Rules 8.3 and 8.4 as originally adopted. The Rhode Island Supreme Court later revised the Rules of Professional Conduct in 2007 as part of the nationwide Ethics 2000 process, which amended the misconduct-reporting and misconduct rules. 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 mentioned here.

Source

• Landing page: https://www.courts.ri.gov/attorney-resources/Pages/Ethics-Advisory-Panel-default.aspx
• Original PDF: https://www.courts.ri.gov/Opinions/EAP%2093-06.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

ETHICS ADVISORY PANEL
Opinion 93-6, Request #336
Issued March 15, 1993

The inquiring attorney asks whether the opposing party's attorney, during the pendency of litigation, can issue a subpoena duces tecum to a physician requesting records without providing notice to all parties involved and without providing a hearing before a tribunal or at a records deposition.

In this situation, the inquiring attorney is asking the Panel to comment on another attorney's conduct which the Panel declines to do so. See Ethics Advisory Panel Rule 3. However, the inquiring attorney may rely on Rule 8.3 entitled "Reporting Professional Misconduct" and Rule 8.4 entitled "Misconduct". If the inquiring attorney believes that the opposing attorney's conduct rises to the level of misconduct enunciated in the Rules, then the attorney "shall inform the appropriate professional authority."

The Panel declines to render an opinion regarding the Rules on issuing subpoenas.