Can a lawyer send a subpoena for records before any lawsuit has been filed?

Plain-English summary

The inquirer asked whether it violates the Rules of Professional Conduct to "send" a subpoena before any suit is commenced, with no cause number and no case filed, demanding release of a client's employment records. The committee framed the question around the assumption that, under CR 45 and RCW 5.56.010, a subpoena issues only after an action has been filed (a party's lawyer or the clerk of court directing a non-party to appear or produce documents).

On that assumption, the committee said issuing a subpoena that suggests it has the force of law when it has none may violate four rules. It may be a frivolous discovery request under RPC 3.4. It may violate RPC 4.1 by creating the false impression that a judicial proceeding has begun or that the subpoena is binding. It may violate RPC 4.4 by using a method to obtain evidence that violates the legal rights of a third person. And it may violate RPC 8.4 as conduct involving dishonesty, fraud, deceit, or misrepresentation, with the committee adding that under subsection (k) it may violate the lawyer's oath. The committee suggested the inquirer also review RCW 42.17 (the Public Disclosure Act) and RCW 49.12.250, depending on the nature of the request.

Currency note

This opinion was issued in 2003, before the Washington State Bar Association's adoption of the 2006 revisions to the Rules of Professional Conduct. The rules the opinion applies (RPC 3.4, 4.1, 4.4, and 8.4) kept their numbers in 2006, though subsection lettering within Washington's RPC 8.4 was reorganized in later amendments. 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 Treat this page as historical context, not current guidance.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.

In practice

Under the Washington rules as they stood at the time of the opinion, the committee treated a pre-suit subpoena that has no legal force, but is presented as if it did, as conduct that may violate several rules at once: RPC 3.4 (frivolous discovery), RPC 4.1 (a false impression that a proceeding exists or that the document is binding), RPC 4.4 (a method of obtaining evidence that violates a third person's rights), and RPC 8.4 (dishonesty or deceit, and under subsection (k), the lawyer's oath). The committee phrased each conclusion as "may be" a violation rather than a categorical holding, and pointed the inquirer to RCW 42.17 and RCW 49.12.250 for the records-access question.

Common questions

Q: Can a lawyer issue a subpoena before filing the lawsuit?

A: The committee proceeded on the assumption that, under CR 45 and RCW 5.56.010, a subpoena issues only after an action has been filed, so a document styled as a subpoena before any case exists has no force of law.

Q: What rules does a sham pre-suit subpoena implicate?

A: The committee said it may violate RPC 3.4 (a frivolous discovery request), RPC 4.1 (creating the impression a proceeding has begun or that the subpoena is binding), RPC 4.4 (a method of obtaining evidence that violates a third person's rights), and RPC 8.4 (dishonesty, fraud, deceit, or misrepresentation; under subsection (k), the lawyer's oath).

Q: How should the lawyer pursue the records instead, according to the opinion?

A: The committee did not prescribe an alternative procedure, but it suggested reviewing RCW 42.17 (the Public Disclosure Act) and RCW 49.12.250, depending on the nature of the request.

Background and rules framework

The opinion interprets Washington rules that map directly to the Model Rules of the same number: RPC 3.4 (Model Rule 3.4, fairness to opposing party and counsel, including frivolous discovery requests); RPC 4.1 (Model Rule 4.1, truthfulness in statements to others); RPC 4.4 (Model Rule 4.4, respect for the rights of third persons); and RPC 8.4 (Model Rule 8.4, misconduct, including dishonesty, fraud, deceit, or misrepresentation). The committee read these rules against the procedural premise that a subpoena under CR 45 and RCW 5.56.010 presupposes a filed action. Washington's RPC 8.4 includes a subsection (k) referring to the lawyer's oath, which has no direct Model Rule analogue.

Citations and references

Rules of Professional Conduct:

• Model Rule 3.4 / Washington RPC 3.4 (fairness to opposing party and counsel; frivolous discovery)
• Model Rule 4.1 / Washington RPC 4.1 (truthfulness in statements to others)
• Model Rule 4.4 / Washington RPC 4.4 (respect for the rights of third persons)
• Model Rule 8.4 / Washington RPC 8.4 (misconduct; dishonesty, fraud, deceit; subsection (k), the lawyer's oath)

Court rules and statutes:

• CR 45 (Washington civil rule on subpoenas)
• RCW 5.56.010 (witnesses; subpoenas)
• RCW 42.17 (Public Disclosure Act); RCW 49.12.250 (employment records), suggested for review depending on the request

See also

• AL Ethics Op. 2007-05: Pretext Investigations
• ABA Formal Op. 01-422: Secretly Recording Conversations

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=1265

Original opinion text

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

Advisory Opinion: 2022
Year Issued: 2003
RPC(s): CR 45, RCW 5.56.010, RPC 3.4, 4.1. 4.4, 8.4
Subject: subpoena without case being filed

The committee has reviewed your inquiry as to whether it is a violation of the RPCs to “send” a subpoena prior to commencement of suit without a cause number and without a case being filed demanding release of a client’s employment records.

Assuming CR 45 and RCW 5.56.010 are not interpreted to mean that a subpoena is issued by a party’s lawyer or clerk of court, directing a non-party to appear and/or produce documents at deposition or trial, and thus presuppose an action has been filed, issuing a subpoena suggesting it has the force of law when, in fact, it has none, may be a violation of Rules of Professional Conduct 3.4, 4.1. 4.4 and 8.4.

To issue a subpoena without the commencement of an action may be a “. . . frivolous discovery request . . .”. RPC 3.4.

To create the impression that a judicial proceeding has been commenced or that a subpoena has the force of law, when in fact it does not, may be a violation of RPC 4.1.

You also may be in violation of RPC 4.4 by using a method to obtain evidence that violates the legal rights of a third person.

Under 8.4, such action may constitute “engagement and conduct involving dishonesty, fraud, deceit or misrepresentation” and, under subsection (k) may violate your oath as an attorney.

Depending upon the nature of your request, the committee suggests you review RCW 42.17 (Public Disclosure Act) and RCW 49.12.250.