Ezel / Ethics Opinions / VTBAR

May a Vermont lawyer mail a state-court subpoena to an out-of-state criminal witness knowing the writ is unenforceable there?

Short answer Opinion 93-04 rejects using an unenforceable Vermont subpoena to mislead an out-of-state witness into believing attendance is compulsory, finding deception and misuse of court process.
Bar
VTBAR
Issued
1993
Source
View Original PDF

Apply this to your situation

This page answers the general question as of 1993. Ask about yours and see what the current Vermont Rules of Professional Conduct say for your facts, with citations.

Disclaimer: Advisory only. Not binding precedent.
About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked on this page as a PDF) is the authoritative source for any reliance.
View original ethics opinion (PDF)

Plain-English summary

A lawyer asked whether a Vermont District Court subpoena could be mailed to an out-of-state witness in a criminal case, hoping the witness would comply even though the subpoena was unenforceable outside the court's territorial limits.

The committee said sending a court writ to suggest that the witness faced contempt for noncompliance would deceive the witness and misuse court process. It identified violations of former DR 1-102(A)(4) and (5), concerning dishonest and justice-prejudicing conduct, and DR 7-102(A)(1), concerning actions meant merely to harass or maliciously injure. The opinion also characterized the misuse as abuse of process exposing the lawyer to a civil action for damages.

Currency note

This opinion was issued in 1993 under Vermont's former Code of Professional Responsibility. The Vermont Supreme Court's rules history states that the Rules of Professional Conduct applied to lawyer conduct after September 1, 1999. Later amendments or opinions may have changed the analysis. Treat this opinion as historical context and verify current rules before relying on it.

Common questions

Q: Did the committee allow mailing the subpoena in hope of voluntary compliance?

A: No. It found the proposed use deceptive because the writ implied court authority and contempt consequences it could not carry for that witness.

Q: Was the opinion limited to whether formal service was valid?

A: No. The committee addressed the lawyer's attempt to induce compliance through an unenforceable court writ and found it violated the former Code.

Background and rules framework

The opinion applied former DR 1-102(A)(4) and (5) and DR 7-102(A)(1) to a subpoena for a witness beyond the Vermont court's reach. Its footnote cited an abuse-of-process treatise rather than a judicial decision.

Citations and references

Rules of Professional Conduct:

  • Vermont Code of Professional Responsibility DR 1-102(A)(4), DR 1-102(A)(5), and DR 7-102(A)(1)

See also

No sibling opinions yet indexed.

Source

What do the rules say today, for your facts?

This opinion is from 1993. Ezel checks the current Vermont Rules of Professional Conduct against your situation and cites the rules it relies on.

Opens in Ezel Pro.

  • Checks the law as it stands today, not only this page
  • Cites every source it relies on, so you can verify it
  • Chat, drafting and research in one workspace