Can a lawyer issue a subpoena duces tecum in Magistrate's Court if the lawyer believes the court has no authority to issue it?

Plain-English summary

A lawyer representing a client in Magistrate's Court wanted to issue a subpoena duces tecum under Rule 45 of the Rules of Civil Procedure to third parties to obtain documents such as the opposing party's medical records. The lawyer asked whether the attorney could issue such a subpoena if the attorney believed the court lacked authority to issue it.

The committee concluded the lawyer may not. Under Rule 3.1, a lawyer may not bring or defend a proceeding, or assert an issue, unless there is a basis for doing so that is not frivolous, which includes a good-faith argument for an extension, modification, or reversal of existing law; quoting the Comment, the committee noted the advocate has a duty to use legal procedure for the client's benefit but also a duty not to abuse it, so a lawyer must not issue the subpoena if the lawyer determines it exceeds the court's procedural or substantive authority. The committee also pointed to Rule 3.3 (candor toward the tribunal), under which a lawyer may not make a false statement of material fact or law to a tribunal (3.3(a)(1)) or fail to disclose controlling adverse legal authority (3.3(a)(3)).

In summary, the committee stated that an attorney would violate the Rules of Professional Conduct by representing to the court or other parties that authority exists for a Magistrate's Court subpoena duces tecum if the attorney determined the court lacked that authority. Conversely, if the attorney concluded the court does have the authority to issue such subpoenas, the committee saw no ethical violation in the attorney availing himself of the court's lawful authority; but if the attorney concluded the court was without legal authority, issuing the subpoena under Rule 45 would violate Rules 3.1 and 3.3.

Currency note

This opinion was issued in 2000, before the South Carolina Bar's adoption of the 2005 revisions to the Rules of Professional Conduct. 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 Treat this page as historical context, not current guidance.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, deadline, or requirement mentioned here.

Common questions

Q: Can a lawyer issue a subpoena duces tecum in Magistrate's Court if the lawyer thinks the court cannot authorize it?

A: The committee concluded no: doing so would violate Rule 3.1 (no frivolous filings) and Rule 3.3 (candor to the tribunal) by asserting authority the lawyer had determined did not exist.

Q: What if the lawyer concludes the court does have subpoena authority?

A: The committee saw no ethical violation in the lawyer issuing the subpoena and availing himself of the court's lawful authority.

Q: Which rules govern the analysis?

A: Rule 3.1, which requires a non-frivolous basis for an assertion, and Rule 3.3, which bars false statements of law to a tribunal and failure to disclose controlling adverse authority.

Background and rules framework

The opinion interpreted South Carolina RPC 3.1 (meritorious claims and contentions; non-frivolous basis) and RPC 3.3(a)(1) and 3.3(a)(3) (candor toward the tribunal; no false statements of law, and disclosure of controlling adverse authority), corresponding to the like-numbered Model Rules, as applied to a subpoena duces tecum under Rule 45, SCRCP.

Citations and references

Rules of Professional Conduct:

• South Carolina RPC 3.1 / Model Rule 3.1: meritorious claims and contentions.
• South Carolina RPC 3.3(a)(1), 3.3(a)(3) / Model Rule 3.3: candor toward the tribunal.

Other authority:

• Rule 45, South Carolina Rules of Civil Procedure (subpoenas).

See also

• No sibling opinions yet indexed.

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-00-06/

Original opinion text

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

UPON THE REQUEST OF A MEMBER OF THE SOUTH CAROLINA BAR, THE ETHICS ADVISORY COMMITTEE HAS RENDERED THIS OPINION ON THE ETHICAL PROPRIETY OF THE INQUIRER’S CONTEMPLATED CONDUCT. THIS COMMITTEE HAS NO DISCIPLINARY AUTHORITY. LAWYER DISCIPLINE IS ADMINISTERED SOLELY BY THE SOUTH CAROLINA SUPREME COURT THROUGH ITS COMMISSION ON LAWYER CONDUCT.

Ethics Advisory Opinion 00-06

A lawyer representing a client in Magistrates Court wants to issue a subpoena duces tecum pursuant to Rule 45 of the Rules of Civil Procedure to third parties in order to obtain documents such as medical records of the opposing party.

Question:
May an attorney issue a subpoena duces tecum in a Magistrate's Court civil matter if the attorney believes that the court lacks the authority to issue such a subpoena?

Summary:
No, an attorney may not issue a subpoena duces tecum in a Magistrate's Court civil matter if the attorney believes that the court lacks the authority to issue such a subpoena.

Opinion:
Under Rule 3.1 of Rule 407, SCRCP, an attorney may not issue a subpoena if there is not a good faith argument that the subpoena is lawful.

Rule 3.1 provides that "a lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein unless there is a basis for doing so that is not frivolous, which includes a good faith argument for an extension, modification, or reversal of existing law."

The Comment to this Rule provides "the advocate has a duty to use legal procedure for the fullest benefit of the client's cause, but also a duty not to abuse the legal procedure. The law, both procedural and substantive, establishes the limits within which an advocate may proceed. However, the law is not always clear and never is static. Accordingly, in determining the proper scope of advocacy, accounts must be taken of the laws ambiguities and potential for change." Therefore, a lawyer must not issue such a subpoena if he or she determines that it exceeds the procedural or substantiative authority of the court.

Rule 3.3 governs an attorney's candor toward the court. Rule 3.3(a)(1) provides that a lawyer not "make a false statement of material fact or law to a tribunal" and 3.3(a)(3) provides that a lawyer should not "fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel."

In summary, an attorney would violate the Rules of Professional Conduct by representing to the Court or to other parties that authority exists under a Magistrate Court subpoena duces tecum to compel disclosure of information if the attorney determines that the court lacks such legal authority.

If an attorney concludes that the court has the authority to legally issue subpoenas duces tecum, then this committee can see no ethical violation for an attorney availing oneself to the court's lawful authority. However, should an attorney conclude that the Magistrate's Court is without legal authority to issue subpoenas duces tecum, then an attorney who issues such a subpoena pursuant to Rule 45, SCRCP would violate Rule 3.1 and 3.3 of the Rules of Professional Conduct.