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Friday, November 21, 2008

Ind. Courts - Supreme Court on improper use of subpoena

In In re Anonymous, a disciplinary case, the Supreme Court writes in a 4-page per curiam opinion:

We approve the parties' agreement that Respondent engaged in attorney mis- conduct by improperly using subpoenas before the commencement of litigation and that Respon- dent should receive a private reprimand.

Respondent represented an insurance company. A third person made a claim against the company, asserting that an insured had caused personal injury to him. Before any legal action had been filed, Respondent served the third person on three separate occasions with a subpoena duces tecum commanding the third person to appear for an examination under oath with specified documents. Each subpoena commanded production of the documents pursuant to "Indiana Trial Rule 45(B)" and purported to be issued "pursuant to the provisions of Trial Rule 34(C) and 45(A)(2) of the Indiana Rules of Procedure." The third party did not comply with any of the subpoenas.

The parties agree that Respondent had no authority to use subpoenas before litigation had commenced and that Respondent violated these Professional Conduct Rules * * *

By using subpoenas, Respondent purported to issue orders on behalf of a court, rather than simply making requests on behalf of an insurance company. Respondent's improper use of subpoenas tended to give the third party (who apparently was unrepresented) the false impres- sion that he could be held in contempt of court if he failed to appear and produce the documents requested.

An offense of this gravity would usually have warranted discipline more severe than a private reprimand, but in light of the lack of adverse consequences and Respondent's cooperation with the Commission, the Court approves the agreed discipline.

Conclusion. For Respondent's professional misconduct by improperly using subpoenas before the commencement of litigation, the Court imposes a private reprimand. The costs of this proceeding are assessed against Respondent. The hearing officer appointed in this case is discharged.

Posted by Marcia Oddi on November 21, 2008 03:04 PM
Posted to Ind. Sup.Ct. Decisions