Muldoon, Getz & Reston

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Subpoena Misuse Can Lead to Costs, Sanctions, Discipline
by Gary Muldoon
Muldoon, Getz & Reston
Rochester, New York

The authority to issue a subpoena is limited. CPLR 2302. Where a subpoena is issued contrary to what is required by statute, it will not be enforced. In re Ehmer, 272 AD2d 540 (2d Dept 2000): Rickicki v Borden Chemical, 195 AD2d 986 (4th Dept 1993).

While attorneys, in some situations, are authorized to issue subpoenas, misuse can result in the issuer being punished.

Disciplinary action

In a Fourth Department disciplinary proceeding, the attorney had directed service of a subpoena on a witness without court approval, when no lawsuit was pending. Additionally, the attorney failed to notify opposing or interested parties of the subpoena or of a deposition conducted pursuant to the subpoena. This misconduct, as well as previous admonitions, resulted in suspension for six months. Matter of Kingsley, 14 AD3d 20 (4th Dept 2004).

In a lawsuit involving the challenge of a will, where an attorney (without court approval) issued numerous unfounded subpoenas to nonparty health care providers and financial institutions, the attorney was suspended for six months. Matter of Lazroe, 25 AD3d 263 (4th Dept 2005).

Where an attorney improperly had documents sent to his office rather than the court, disciplinary action resulted. Matter of Burden, 5 AD3d 1 (1st Dept 2004).

In Matter of Labella, 265 AD2d 117 (2d Dept 2000), the attorney, among other things, caused a subpoena to be presented without the required one day’s notice. The attorney also failed to return documents received under the subpoena until the judge ordered their return. Disciplinary action resulted.

Costs and sanctions

In Henriques v Boitano, 304 AD2d 467 (1st Dept 2003), the landlord’s attorney issued subpoenas in violation of proper disclosure procedures. The attorney was sanctioned under 22 NYCRR Part 130 and was required to pay costs and reasonable attorney’s fees incurred by other parties. See also, Brussels Leasing v Henne, 174 Misc 2d 535 (Sup Ct 1997).

As stated in YSL v Shal, 10 Misc 3d 554 (Sup 2005), “The failure by one party, to a pending action, to afford the requisite notice to the opposing party, of a subpoena duces tecum served on a non-party may constitute sanctionable conduct pursuant to (22 NYCRR 130-1.2).”

Family law

Improperly issuing a subpoena that sought information protected by privilege resulted in a $1,600 sanction against an attorney. Bedworth-Holgado v Holgado, 85 AD3d 1589 (4th Dept 2011). See also, Liberatore v Liberatore, 37 Misc 3d 1034 (Sup 2012).

Criminal cases

An attorney, as “officer of a criminal court,” may issue a subpoena in some situations. CPL 610.20(2),(3). But a prosecutor’s misuse of a subpoena power can result in dismissal of a charge in the interest of justice. People v MacAffee, 76 AD2d 157 (3d Dept 1980).

Removal of counsel

Misuse of subpoenas may also result in the attorney’s disqualification from representing a party. Matter of Beiny, 129 AD2d 126 (1st Dept 1987).

© 2013 by Gary Muldoon.