Stengel v. Kentucky Bar Ass'n

Summary

The Supreme Court of Kentucky reviewed challenges to Kentucky Bar Association Ethics Opinion E-423 concerning the use of subpoenas in criminal and grand jury proceedings. The court vacated the portions of the opinion addressing grand jury practices and amended Kentucky Rule of Criminal Procedure 5.06 to permit subpoenas for production of records without requiring the custodian's personal appearance, subject to the stated rule. The court also held that contacting out-of-state entities and providing subpoenas for voluntary compliance is not per se unethical absent deliberate circumvention or misrepresentation.

Holdings

1. Opinion E-423 was not approved and all portions addressing grand-jury practices and proceedings were vacated because the opinion improperly treated lawful grand-jury subpoena practices as unethical.
2. Except where a rule provides otherwise, grand-jury subpoenas are issued by the clerk of the circuit court; RCr 5.06 does not require the circuit judge personally to approve or sign each subpoena.
3. A Commonwealth's Attorney or grand jury may waive or excuse full or partial compliance with a grand-jury subpoena, including a subpoena duces tecum, unless a rule otherwise requires personal appearance.
4. It is not per se unethical for a lawyer to fax an out-of-state entity a subpoena at the entity's request or to advise that KRS 421.250 will be used if voluntary compliance is not forthcoming, provided the attorney intends to use that statutory process if necessary and does not deliberately misrepresent the subpoena's legal force.
5. The fact that documents obtained through voluntary compliance may be inadmissible at trial does not make them unusable before a grand jury because hearsay evidence is admissible in grand-jury proceedings.

Questions Presented

1. Whether the KBA's advisory Ethics Opinion E-423 accurately stated Kentucky law governing grand-jury subpoenas and alternative compliance.
2. Whether grand-jury subpoenas must be issued personally by a circuit judge rather than by the circuit clerk.
3. Whether a Commonwealth's Attorney may allow a subpoenaed witness or records custodian to provide statements or documents without personally appearing before the grand jury, unless another rule requires appearance.
4. Whether it is per se unethical to fax or otherwise transmit a subpoena to an out-of-state entity for voluntary compliance when the attorney is prepared to use KRS 421.250 if necessary.

Disposition

vacated