Attorneys Beware: Mailing a Subpoena that Warns of Noncompliance Sanctions May Constitute an Ethical Violation

May attorneys include language threatening sanctions for noncompliance when they send a subpoena duces tecum by mail? The Supreme Court of New Jersey’s Advisory Committee on Professional Ethics released an opinion this month clarifying that subpoenas sent by mail should not include language threatening sanctions for noncompliance, because the threats, at a minimum, are inaccurate and misleading.

The committee explains in the opinion that under the applicable rules of civil procedure, subpoenas must be served personally in order to create the personal jurisdiction required over the recipient for a court to deem that party in contempt for failure to comply with the subpoena.  In practice, many subpoenas are mailed when parties and witnesses reach an agreement to effect service by mail.  However, the committee was clear that this agreement does not provide the court with any contempt power over the recipient. Thus, the threat of sanctions is misleading cases because it misstates the immediate consequences for noncompliance.

The opinion provides that going forward, a New Jersey attorney who intentionally includes threatening language in these documents may be in violation of the local Rule of Professional Conduct 8.4(c), which governs conduct involving misrepresentation.

For more information, read the opinion here.

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