• SC Supreme Court Disciplines Lawyer for Failing to Notice Opponent with Trial Records Subpoena
  • January 4, 2017 | Author: R. Bruce Wallace
  • Law Firm: Nexsen Pruet, LLC - Charleston Office
  • In a nearly unprecedented public disciplinary order, the South Carolina Supreme Court, on November 15, 2016, sanctioned a family court lawyer by public reprimand for failing to serve notice of a records subpoena on opposing counsel. The Disciplined Attorney argued that the rule did not require notice of the subpoena for a records production at a trial or hearing, which is when she sought the records to be produced. The Court rejected this argument, interpreting South Carolina State Court Rule 45 to require “that notice be given to the opposing party anytime a party issues a subpoena commanding the production of documents, regardless of when the documents are commanded to be produced.” Id. at 7 (emphasis in original). Based on this interpretation, the Supreme Court found the Attorney violated the clear provisions of Rule 45. Id.

    Additionally, the Supreme Court found the Attorney violated the Family Court Rule against discovery “which prohibits discovery in the family court without a court order or a stipulation by both parties, ... neither [of which] was in effect when Respondent issued the subpoenas.” Id.

    Based on the Rule 45 violation, the Supreme Court found the Attorney violated, among other rules, the Rules of Professional Conduct related to deceit and false statements when she signed the subpoenas “certifying she notified opposing counsel as required under Rule 45...” Id. at 8.

    Lastly, the Court noted the Disciplined Attorney had received two prior, private admonitions for improper subpoenas. These two incidents, coupled with the present one, “indicate an admonition is insufficient to deter Respondent from improperly issuing subpoenas in the future,” and were cumulatively serious enough to warrant a public sanction. Compare, In re Boyce, 371 S.C. 259, 261, 639 S.E.2d 44, 45 (2006)(attorney publically sanctioned for serving subpoena when no action was pending.)

    Conspicuously absent from this Opinion is a description of the actions, if any, taken by the family court. Under South Carolina’s rules, the family court could have quashed the subpoena and awarded sanctions against the Disciplined Attorney, her client, or both. While this is irrelevant to the Court’s power to discipline members of the Bar, sanctions for discovery misconduct comprise the more common practice. Cf., In re Okpalaeke, 374 S.C. 186, 192, 648 S.E.2d 593, 596 (2007)(in discussing three erroneously issued subpoenas, the Supreme Court explained “the family court held a sanction hearing relating to this conduct and that the judge admonished Respondent for his conduct”).

    This lack, coupled with the language of the Court’s final footnote, signals the Court’s strong desire to curb discovery abuse. In the footnote, the Court admonished the members of the Bar against withholding subpoenaed documents if they are produced before the deadline set forth in the subpoena: "the opposing party must also be notified anytime the party issuing the subpoena receives the documents prior to the time requested in the subpoena." Id., fn 6.

    The Court specifically stated that to allow a party to withhold the early-produced documents would give the requesting Attorney “a competitive advantage over the opposing party” prior to the trial or hearing. Id.

    The Supreme Court is going to end gamesmanship in pre-trial discovery. And this opinion demonstrates the Court’s willingness to invoke disciplinary proceedings to do so. Given the rarity of appellate decisions addressing discovery practice, this case may even be a harbinger of opinions to come. As a result, trial lawyers should proactively produce documents received pursuant to subpoena as soon as reasonably practicable. Moreover, lawyers should regularly review the documents in their possession to ensure production to opposing counsel in a timely manner that will prevent gaining an competitive advantage.