Legal Ethics Opinion #1552

Zealous Representation--Representing a Client Within the Bounds
of the Law--Trial Conduct--Misconduct: Attorney Issuing Subpoena
for Deposition Without Noticing Opposing Counsel, then
Interviewing Witness Without Taking Deposition

You have presented a hypothetical situation in which a personal
injury case is pending in a circuit court.  You indicate that
depositions were scheduled for a specific time and date for one
of the parties and a witness and that those depositions took
place as scheduled. 

In addition, you further indicate that, following those
depositions and after further investigating the facts, Attorney A
discovers that Attorney B served a subpoena for deposition of
another witness who was not noticed for his deposition and whose
deposition was not taken on the time and date scheduled for the
other depositions.  Attorney A also discovers that the subpoena
for that witness was issued through the clerk's office and that
it required the witness to be present at Attorney B's office one
hour before the scheduled time for the noticed depositions. 
Finally, you state that Attorney B spoke with, and then released,
the subpoenaed witness and did not advise Attorney A that the
witness had been subpoenaed for his deposition and then released
without the taking of any such deposition.

You have asked the committee to opine, under the facts of the
inquiry, (l) whether it was appropriate for Attorney B to issue a
deposition subpoena for the witness whose deposition was not
noticed pursuant to the Rules of Court; and (2) whether it was
appropriate for Attorney B to use the subpoena power of the court
for the purpose of interviewing a witness rather than taking the
witness' deposition pursuant to the subpoena.

The appropriate and controlling Disciplinary Rules relative to
your inquiry are DR 7-l02(A)(l) which states that a lawyer shall
not file a suit, initiate criminal charges, assert a position,
conduct a defense, delay a trial, or take other action on behalf
of his client when he knows or it is obvious that such action
would serve merely to harass or maliciously injure another; DR 7-
l02(A)(3)which provides that a lawyer shall not conceal or
knowingly fail to disclose that which he is required by law to
reveal; DR 7-l05(C)(5) which mandates that a lawyer not
intentionally or habitually violate any established rule of
procedure or of evidence, where such conduct is disruptive of the
proceedings; and DR l-l02(A)(4) which prohibits a lawyer from
engaging in conduct involving dishonesty, fraud, deceit, or
misrepresentation which reflects adversely on a lawyer's fitness
to practice law.  Further guidance is available in Ethical
Consideration 7-22 which exhorts, in pertinent part, that a
lawyer is not justified in consciously violating rules of
evidence and procedure and should be diligent in efforts to guard
against unintentional violations of those rules.

In the facts you present, the committee believes that Attorney B
has improperly obtained information from the witness by a
subpoena without notice to opposing counsel.  Such information
may only be properly obtained by a lawyer, acting on his client's
behalf, in accordance with all required rules of procedure
including those applicable to discovery.  See Nassau County Bar
Ass'n Legal Ethics Opinion No. 92-32 (ll/l8/92), ABA/BNA Law.
Man. on Prof. Conduct, l00l:6259.  Thus, the committee opines
that Attorney B has violated DR 7-l02(A)(3) by concealing or
knowingly failing to disclose to Attorney A that he had
subpoenaed the witness for deposition prior to the other,
scheduled depositions; and DR 7-l05(C)(5) since the activities
are in violation of the relevant Rules of Court.

Furthermore, the committee is of the opinion that the actions of
Attorney B are also in violation of DR 7-l02(A)(l) in that he has
subjected the witness to a subpoena for a deposition which never
took place.  The committee is of the further opinion that the use
of a subpoena to command the presence of a witness for a
deposition or in court, with the knowledge that no deposition or
court proceeding is scheduled, but for the sole purpose of
interviewing the witness, is violative of the disciplinary rules
cited herein.

Committee Opinion
October 20, 1993