Can a lawyer mail a witness a document that looks like a court subpoena, but was never issued or authenticated by the court, to pressure the witness into appearing?

Plain-English summary

A litigator who regularly relied on witness testimony proposed to take the form of a court subpoena, type in case-related information, and mail it to a witness hoping it would be honored, in place of having the court issue a subpoena and serving it under New Mexico law or otherwise requesting cooperation. The committee concluded the practice is forbidden. It pointed first to State v. Eder, 103 N.M. 211 (Ct. App. 1985), in which a prosecutor served a document purporting to be a grand jury subpoena that was in fact only the filled-in form; relying in part on ABA Standards and other jurisdictions' law, the court concluded the practice would not be allowed and required evidence gained through it to be suppressed.

Beyond the court's analysis, the committee identified four rule problems. Rule 16-304(B) prohibits offering an inducement to a witness that is prohibited by law, which the committee read broadly to bar a practice a recipient might believe creates a legal obligation to appear when none exists. Rule 16-304(C) bars knowingly disobeying an obligation under a tribunal's rules; because New Mexico law is specific about how to secure an unwilling witness's presence, sending a document the witness might mistake for compulsory process is a knowing disobedience of those rules. Rule 16-401(A) bars knowingly making a false statement of material fact to a third person, which the practice contravenes because its purpose is to make witnesses believe the document is official and obligatory. Rule 16-404 bars using means with no substantial purpose other than to burden a third person, or methods of obtaining evidence that violate a person's legal rights, and the committee concluded the practice contravenes that rule because unwilling witnesses have a due-process right to notice and compensation.

The committee was careful to say it did not require a subpoena for all witnesses. Under Rule 16-101 a lawyer is obligated to understand the process of compelling attendance, and a lawyer may and should request cooperation; a truthful presentation about the nature and existence of compulsory process, and advice that the lawyer intends to use process absent cooperation, are not prohibited. What is forbidden is presenting a non-authenticated subpoena, by mail or otherwise, as a tactic to secure attendance. The committee noted the inquiry came from a public-sector attorney and stated the opinion applies equally to public and private lawyers, adding that lawyers in public practice who deal with many members of the public should be particularly scrupulous.

Currency note

This opinion was issued in 1990, under the New Mexico Rules of Professional Conduct effective January 1, 1987 (SCRA 1986, Rules 16-101, 16-304, 16-401, and 16-404). It predates the State Bar of New Mexico's November 3, 2008 revisions to those Rules (the New Mexico adoption of the ABA Ethics 2000 changes). Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can a lawyer send a witness a subpoena form the court never issued?

A: No. The committee concluded that presenting a non-authenticated subpoena, by mail or otherwise, as a tactic to secure a witness's attendance is forbidden.

Q: Which rules does a fake subpoena violate?

A: The committee identified Rule 16-304(B) (prohibited inducement to a witness), Rule 16-304(C) (disobeying tribunal procedure), Rule 16-401(A) (false statement of material fact to a third person), and Rule 16-404 (burdening a third person).

Q: Can a lawyer still just ask a witness to cooperate?

A: Yes. The committee concluded a lawyer may request cooperation and may truthfully describe the nature of compulsory process and advise that the lawyer intends to use it absent cooperation.

Q: Does this apply to government lawyers too?

A: Yes. The committee stated the opinion applies equally to public and private lawyers, and that public-practice lawyers dealing with many members of the public should be particularly scrupulous.

Background and rules framework

The opinion interpreted New Mexico's litigation-conduct rules: Rule 16-304 on fairness to opposing party and counsel (corresponding to Model Rule 3.4), Rule 16-401 on truthfulness in statements to others (Model Rule 4.1), and Rule 16-404 on respect for the rights of third persons (Model Rule 4.4), together with Rule 16-101 on competence (Model Rule 1.1). It read these against State v. Eder, which had already condemned the use of sham compulsory process.

Citations and references

Rules of Professional Conduct:

• Rule 16-304(B), (C) (fairness to opposing party and counsel); Rule 16-401(A) (truthfulness in statements to others); Rule 16-404 (respect for rights of third persons); Rule 16-101 (competence)

Cases:

• State v. Eder, 103 N.M. 211 (Ct. App. 1985): sham grand jury subpoena; evidence obtained through it suppressed

See also

• NM Ethics Op. 1990-2: Attorney's Duty of Candor to the Tribunal and Truthfulness to Others
• NM Ethics Op. 1988-6: Secret Recording of a Witness

Source

• Landing page: https://www.sbnm.org/Leadership/Committees/Ethics-Advisory-Committee/Ethics-Advisory-Opinions
• Original PDF: https://www.sbnm.org/Portals/NMBAR/AboutUs/committees/Ethics/1990-92/1990-5.pdf

Original opinion text

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

Advisory Opinion 1990-5
ATTORNEY'S USE OF SUBPOENA LIKE DOCUMENTS NOT ISSUED OR AUTHENTICATED BY COURT TO
SECURE ATTENDANCE OF WITNESSES
Inquiring attorney has a practice which includes a large volume of litigation in a New Mexico Court. Cases regularly are
set for hearing in which attorney must rely on the presentation of evidence from witnesses. Attorney proposes to use the
form of a subpoena from the Court with case related information typed in and to mail the document to the witness hoping
it will be honored. This procedure is proposed in lieu of having a subpoena issued by the Court and making service in
accordance with New Mexico law, or otherwise requesting cooperation.
In the case of State v. Eder, 103 NM 211 (Ct. App., 1985) a prosecutor issued a document purporting to be a subpoena
from a Grand Jury which was in fact only the form of such a subpoena filled in and served by the prosecutor. The Court's
discussion relies in part on ABA Standards and the law of other jurisdictions and clearly concludes that the practice would
not be allowed, requiring any evidence gained through use of the procedure to be suppressed.
In addition to those matters discussed by the Court of Appeals, we add the following concerns about the practice inquired
of:
SCRA 16-304 B prohibits a lawyer from offering ". . . an inducement to a witness that is prohibited by
law;" We believe this phrase has a broad meaning beyond the obvious, and would prohibit a practice
which might be believed by a target or recipient to create a legal obligation to appear as a witness when
no such obligation exists.
SCRA 16-304 C says that a lawyer may not "knowingly disobey an obligation under the rules of a tribunal
. . ." Law applicable to New Mexico Courts is uniform and specific about the procedure a lawyer must
follow to secure the presence before the Court of a witness who will not appear voluntarily. A witness
appears voluntarily when the witness has been requested to appear without compulsory process and
knowlingly makes a choice to do so. Gaining the appearance of a witness by sending the witness a
document which the witness might mistakenly believe to be compulsory process is a practice we believe
constitutes a knowing disobedience of the Rules.
SCRA 16-401 A prohibits a lawyer from knowingly making ". . . a false statement of material fact or law to
a third person . . ." It appears to us that since the purpose of the practice is to cause the potential
witnesses to believe the document they receive is official and obligatory, the practice would contravene
this Rule.
SCRA 16-404 says that a lawyer ". . . shall not use means that have no substantial purpose other than to
. . . burden a third person, or use methods of obtaining evidence that violate the legal rights of such a
person." Persons who do not wish to cooperate as witnesses have a due process right to notice and
compensation in accordance with the law. We believe the practice in question contravenes this Rule.
All lawyers who litigate are confronted with the problem of securing the attendance and cooperation of witnesses at
discovery or Court proceedings. We are obligated by SCRA 16-101 to understand the process of compelling the
attendance of witnesses. In most cases, witnesses will give some measure of cooperation. We do not mean by our
opinion to suggest that the subpoena must be used for all witnesses. A lawyer may and should request cooperation from
witnesses. A truthful presentation regarding the nature and existence of compulsory process, and advice to the witness
that the lawyer intends to use the process absent cooperation are not prohibited. Presentation of a non-authenticated
subpoena to a witness, by mail or otherwise, as a tactic to secure the attendance and cooperation of the witness is
forbidden.
It is noted that the request came from an attorney practicing in the public sector. This Opinion is applicable equally to
attorneys practicing in public and in private areas. The Committee feels that attorneys in a public practice who are in
contact with many members of the public who may not otherwise communicate with attorneys should be particularly
scrupulous in this conduct.