Opinion 25-87

June 26, 2025

Digest:  (1) The propriety of an attorney’s use of a standard subpoena duces tecum form to seek documents from non-parties in connection with a pending case is primarily a legal question, even where the form is labeled “Judicial Subpoena Duces Tecum” and prompts the signing attorney to identify the judicial or quasi-judicial officer presiding in the matter after the word “WITNESS.” 
(2) Absent a court directive, ethics rule, or statute prohibiting attorneys from using this form, a support magistrate need not take any action on learning that an attorney has prepared and served such a form, where the attorney has clearly identified him/herself as the sole signatory with the attorney’s own signature block.

Rules:   Judiciary Law § 212(2)(l); 22 NYCRR 100.2; 100.2(A); 100.3(D)(2); 100.6(A); 101.1; Opinions 19-45; 15-157; 14-88.

Opinion:

          The inquiring support magistrate recently reviewed a party’s application to quash certain subpoenas which had been served on the party’s financial institutions, seeking personal financial records.  Each subpoena was captioned as “Judicial Subpoena Duces Tecum,” but had clearly been prepared, signed, and served solely by the other party’s attorney.  The support magistrate was surprised to see his/her own name appearing in the following line of the subpoena: “WITNESS, Honorable [inquirer’s name], one of the Support Magistrates of said Court, at [municipality], New York the 1st day of [month], 2025.”  Still, the subpoena did not purport to include the support magistrate’s signature.  Instead, the attorney’s own signature block and the attorney’s signature appeared underneath the “WITNESS” line.  The parties then settled the case before the support magistrate could conduct a hearing or otherwise decide the application.  The support magistrate now asks if he/she must report the attorney to the grievance committee.

An individual who performs judicial functions within the judicial system, such as a support magistrate, must comply with the Rules Governing Judicial Conduct in the performance of his/her judicial functions and otherwise must “so far as practical and appropriate” use such rules as guides to his/her conduct (see 22 NYCRR 100.6[A]).  Accordingly, a support magistrate must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]).  Thus, like a judge, a support magistrate who receives information indicating a “substantial likelihood” an attorney committed a “substantial violation” of the Rules of Professional Conduct must take “appropriate action” (22 NYCRR 100.3[D][2]; see also Opinion 19-45).  As described in Opinion 14-88 (citations omitted):

In general, the Committee has advised that a judge must determine whether in a particular case there is a “substantial likelihood” an attorney has committed a “substantial violation” of the Rules of Profession Conduct based on all the facts and circumstances known to the judge.  A judge need not undertake any investigation of an attorney’s alleged misconduct.  If a judge concludes there is a substantial likelihood that an attorney has committed a substantial violation of the Rules of Professional Conduct, the judge “must take appropriate action.”  Because “appropriate action” depends on the circumstances of each case, it is ordinarily left to the judge’s discretion to determine the appropriate action.  However, if the judge concludes the misconduct seriously calls into question the attorney’s honesty, trustworthiness or fitness as a lawyer, then the only appropriate action is to report the attorney to the appropriate disciplinary authority.

          We note initially that the propriety of an attorney’s use of a standard subpoena duces tecum form to seek documents from non-parties in connection with a pending case is primarily a legal question, even if the form is labeled “Judicial Subpoena Duces Tecum” and prompts the signing attorney to identify the judicial or quasi-judicial officer presiding in the matter after the word “WITNESS.”  We cannot address this or other legal questions (see e.g. Judiciary Law § 212[2][l]; 22 NYCRR 101.1).

          Legality aside, nothing in the inquiry suggests the form has been used in an improper or misleading way.  Of particular note, the only signature on the form is the attorney’s own name signed above his/her own signature block; there is no other signature, seal, or mark on the document to suggest or imply that the support magistrate was present and a witness to the document at any stage.  In this regard, we note the verb “witness” may have a figurative meaning such as “Of a place, time, etc.: To be associated with (a fact or event); to be the scene or setting of” (“Witness, v4b” Oxford English Dictionary, Oxford UP, September 2024, https://www.oed.com/dictionary/witness_v).

          Accordingly, absent a court directive, ethics rule, or statute prohibiting attorneys from using this form, the inquiring support magistrate need not take any action on learning that an attorney has prepared and served such a form, where the attorney has clearly identified him/herself as the sole signatory with the attorney’s own signature block (cf. Opinion 15-157).