Lawyers May Not Threaten Sanctions for Noncompliance When Sending a Subpoena Duces Tecum by Mail

Appointed by the Supreme Court of New Jersey

OPINION 729

Lawyers May Not Threaten Sanctions for Noncompliance

When Sending a Subpoena Duces Tecum by Mail

The Advisory Committee on Professional Ethics received an inquiry from a lawyer who asked whether, consistent with the Rules of Professional Conduct, he may include language threatening sanctions for noncompliance when he sends a subpoena duces tecum by mail. As sanctions may only be imposed when the subpoena is served personally, and not by mail, Inquirer suggested that such a threat may be a false statement of material fact or law to a third person in violation of Rule of Professional Conduct 4.1(a)(1). The Committee agrees that subpoenas sent by mail should not include language threatening sanctions. The Committee declines to find that such language is, in all cases, a false statement but it warns lawyers that including this threat in subpoenas that are mailed is, at a minimum, inaccurate and misleading.

A subpoena for taking of depositions and/or the production of documents in a civil action must be issued and served as prescribed by Rule 1:9. R. 4:14-7(a). Rule 1:9-3 requires that subpoenas be served personally. Failure to obey a subpoena is deemed contempt of court. R. 1:9-4. When a subpoena is sent by ordinary mail instead of being served personally, a recipient who fails to obey the subpoena cannot be deemed in contempt of court as the court lacks personal jurisdiction over the recipient.

Parties and witnesses may reach an agreement regarding mailed subpoenas. Such an agreement, however, does not provide a court with contempt power for failure to comply with a mailed subpoena. The service of document subpoenas by mail may be an effective way of conducting discovery when all involved are willing to cooperate . . . [but] [m]ail service is not an effective manner of serving a subpoena on an unwilling non-party under the New Jersey Rules of Court . . . . NJ Cure v. Estate of Robert Hamilton, 407 N.J. Super. 247, 250 (App. Div. 2009).

The Committee is aware that it has become common and longstanding practice for lawyers to include language in a subpoena stating that the recipient can be considered in contempt of court and face sanctions if he or she does not comply. Such language is accurate when the subpoena is served personally. If the subpoena is mailed, failure to comply does not subject the recipient to sanctions since the sender would need to take an interim step personally serve the subpoena prior to seeking sanctions.

The Committee does not find that the threat is a false statement under Rule of Professional Conduct 4.1(a), but it hereby provides notice to the bar that the language misstates what the immediate consequences are for the recipient of a mailed subpoena. Going forward, lawyers who intentionally include such language in mailed subpoenas, threatening the recipient with sanctions for noncompliance, may be violating Rule of Professional Conduct 8.4(c) (conduct involving misrepresentation).