Opinion 2022

The committee has reviewed your inquiry as to whether it is a violation of the RPCs to “send” a subpoena prior to commencement of suit without a cause number and without a case being filed demanding release of a client’s employment records.

Assuming CR 45 and RCW 5.56.010 are not interpreted to mean that a subpoena is issued by a party’s lawyer or clerk of court, directing a non-party to appear and/or produce documents at deposition or trial, and thus presuppose an action has been filed, issuing a subpoena suggesting it has the force of law when, in fact, it has none, may be a violation of Rules of Professional Conduct 3.4, 4.1. 4.4 and 8.4.

To issue a subpoena without the commencement of an action may be a “. . . frivolous discovery request . . .”. RPC 3.4.

To create the impression that a judicial proceeding has been commenced or that a subpoena has the force of law, when in fact it does not, may be a violation of RPC 4.1.

You also may be in violation of RPC 4.4 by using a method to obtain evidence that violates the legal rights of a third person.

Under 8.4, such action may constitute “engagement and conduct involving dishonesty, fraud, deceit or misrepresentation” and, under subsection (k) may violate your oath as an attorney.

Depending upon the nature of your request, the committee suggests you review RCW 42.17 (Public Disclosure Act) and RCW 49.12.250.

Advisory Opinions are provided for the education of the Bar and reflect the opinion of the Committee on Professional Ethics (CPE) or its predecessors. Advisory Opinions are provided pursuant to the authorization granted by the Board of Governors, but are not individually approved by the Board and do not reflect the official position of the Bar association. Laws other than the Washington State Rules of Professional Conduct may apply to the inquiry. The Committee's answer does not include or opine about any other applicable law other than the meaning of the Rules of Professional Conduct.