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The Florida Bar
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PROFESSIONAL ETHICS OF THE FLORIDA BAR

OPINION 71-38
September 13, 1971

It is improper for a lawyer to subpoena records he knows are not germane to pending litigation as a tactic to intimidate the defendant or insurer to cooperate or settle.

Committeeman Massey stated the opinion of the committee:

The inquirer seeks advice on whether he transgresses ethical considerations when he subpoenas hospital records pertaining to a person when such person is not a party to the suit. He explained that this procedure is utilized as a hospital or opposing attorney or the attorney's insurance client is sometimes slow in supplying sufficient information on the involved claim, and he will subpoena the records in a pending suit although the records are not germane to the existing litigation. Also, it is pointed out by the attorney such procedure is very helpful and perhaps of assistance to a proposed defendant if he be a professional man who may be charged with malpractice and would not want the publicity of an action being filed.

Present rules and practice give a lawyer great power with respect to requiring attendance of witnesses and the production of records. The attorney may acquire subpoenas in blank with the clerk's signature and seal thereon and serve them himself. The power is coupled with a corresponding obligation not to abuse it.

The Committee is of the unanimous opinion that directing a subpoena to a person constitutes the assertion of the attorney as an officer of the court that he believes or has good reason to believe the person knows or has records to be produced which would disclose facts material to the case in which the subpoena is issued. Any other use of the subpoena power is highly improper and unethical. It may possibly constitute an actionable abuse of process, although this gratuitous observation should not be constituted as judgment by the Committee on a question of law. To approve the practice described is but to prostitute our discovery process and must be disapproved in every aspect. If our present discovery rules do not afford the attorneys enough latitude and flexibility, we might change the rules but we cannot here agree that the end suggested by the inquirer justifies the means.

[Revised: 08-24-2011]