Volume 58

Sham Subpoenas and Prosecutorial Ethics

by Ira P. Robbins

Prosecutors are given broad freedom to conduct their investigations throughout the grand jury process; their power is not without legal and ethical limits, however. For example, courts have discretion to quash subpoenas that have been issued without a proper purpose. 

Unlike law enforcement officials who may use deceptive tactics throughout an investigation, prosecutors are subject to professional rules of responsibility. All lawyers are subject to some variation of Rule 4.2 of the Model Rules of Professional Responsibility—the No-Contact Rule—which prohibits a lawyer from communicating with a represented individual. Prosecutors, however, have escaped the Rule’s reach by communicating with represented individuals through the use of undercover informants. 

Moreover, some prosecutors have abused the grand jury process by creating sham subpoena documents that have targeted witnesses and victims of crime. This practice was recently uncovered in the following jurisdictions: New Orleans and Gretna, Louisiana, and Nassau County, New York. Such a deceptive practice is particularly troublesome because it implicates the rights of unrepresented individuals. 

To assess the ethical implications, courts employ a case-by-case adjudication to analyze whether sham subpoenas constitute prosecutorial misconduct. Such a totality-of-the-circumstances approach creates an unpredictable legal framework that recklessly disregards the legal rights of individuals and undermines the integrity of the court. Given the significance of the legal rights at stake, a bright line rule is necessary to protect the rights of individuals from such an abusive tactic and to ensure the integrity of the criminal justice system. 

Both the motion-to-quash remedy and the discrepancy in legal tests that courts employ when analyzing the applicability of Rule 4.2 provide inadequate protection for individuals challenging sham subpoenas. Accordingly, this Article recommends a model rule, which the states or the ABA should adopt, that specifically addresses prosecutors’ fraudulent and misleading use of sham court documents. 

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