147 N.J.L.J. 1326
March 24, 1997
6 N.J.L. 739
March 24, 1997
Subpoenas Issued in the Name of the
Clerk of the Court by Lay Entities
on behalf of a Party or Attorney for
The Committee on the Unauthorized Practice of Law has periodically received grievances and inquiries concerning the execution of subpoenas by persons, other than attorneys or parties, for the production of books, papers, documents and other objects designated in the subpoenas. The complaints primarily concern medical records companies, which obtain copies of medical records from doctors and hospitals on behalf of defendants in personal injury actions.
In the typical situation, the attorney provides the medical records company with a Request for Records form. The form lists (a) the name of the lawyer or law firm requesting the records; (b) the name of the insurance company to be billed for the service; (c) the name of the client or other person to whom the records pertain; (d) the name of the physician or medical facility from whom or which the records are to be obtained; (e) the types of records, for example, x-rays, medical bills, or index hospital records or treatment records, to be obtained; and (f) the caption and docket number of the case. The form includes a signature line for the forwarding attorney under the legend: Authority to sign Notice and file with appropriate court, and serve Subpoena. The forwarding attorney is also asked to complete a counsel list, providing the names and addresses of all attorneys and insurance companies in the case.
R. 1:9-1 of the Rules Governing the Courts of the State of New Jersey provides, in pertinent part:
A subpoena may be issued by the clerk of the court or by an attorney or party in the name of the clerk or as provided by R. 7:3-3 (subpoenas in certain cases in the municipal court).
R. 1:9-2 governs the production of documentary evidence and provides in pertinent part:
A subpoena or, in a civil action, a notice in lieu of subpoena as authorized by R. 1:9-1 may require production of books, papers, documents or other objects designated therein. ... Except for pretrial production directed by the court pursuant to this rule, subpoenas for pretrial production shall comply with the requirements of R. 4:14- 7(c).
R. 4:14-7(c), in turn, provides:
A subpoena commanding a person to produce evidence for discovery purposes may be issued only to a person whose attendance at a designated time and place for the taking of a deposition is simultaneously compelled. The subpoena shall state that the subpoenaed evidence shall not be produced or released until the date specified for the taking of the deposition and that if the deponent is notified that a motion to quash the subpoena has been filed, the deponent shall not produce or release the subpoenaed evidence until ordered to do so by the court or the release is consented to by all parties to the action. The subpoena shall be simultaneously served no less than 10 days prior to the date therein scheduled on the witness and on all parties, who shall have the right at the taking of the deposition to inspect and copy the subpoenaed evidence produced. If the evidence is produced by a subpoenaed witness who does not attend the taking of the deposition, the parties to whom the evidence is so furnished shall forthwith provide notice to all other parties of the receipt thereof and of its specific nature and contents, and shall make it available to all other parties for inspection and copying.
Paragraph (c) of R. 4:14-7 was amended July 14, 1992, and became effective on September 1, 1992. The Committee has no information concerning whether the medical records companies have, in accordance with the rule, served deposition notices or notified parties or counsel to the litigations about the service of the subpoenas until after the records have been produced.
The Committee made inquiries to the Advisory Committee on Professional Ethics, the Clerk of the Superior Court and the New Jersey State Bar Association concerning the practices of the medical records companies. The Advisory Committee on Professional Ethics, which pursuant to R. 1:19-2 could not address the specific inquiry because it did not involve the conduct of an attorney per se and required interpretation of a rule of court as opposed to a Rule of Professional Conduct, nevertheless determined that any attorney retaining the services of a medical records company would remain responsible for any abuses committed by the company consistent with the provisions of RPC 5.3.
The New Jersey State Bar Association responded by advising the Committee that it was not aware of any problems or abuses related to the use of medical records companies. It also stated that it would have no objection to a proposed rule amendment that would permit an agent of the attorney or party to sign the clerk's name to the subpoena, so long as the rule makes clear that ultimate responsibility remains with the attorney or party who supervises the signing and issuance of the document while acting through the use of the agent.
The Clerk of the Superior Court responded by voicing his opposition to any proposed amendment of R. 1:9-1 that would allow anyone other than an attorney or party to sign a subpoena in the clerk's name. His opposition was based upon his belief that adequate safeguards did not exist to prevent abuses that could occur if the legal authority to issue subpoenas were extended beyond the primary case parties.
Specifically, the Clerk noted that businesses such as medical records companies are not parties to litigation; they merely provide services to the attorneys representing those parties. They are neither licensed nor regulated, particularly by the Supreme Court or the Administrative Office of the Courts.
The Clerk also pointed out that in the description of the process the medical records companies follow in securing medical records, it appears as though the attorney supplies all of the information needed to identify and secure the medical records. If this is so, he asked, why cannot the attorney include the prepared subpoena with the other material submitted to the company.
Finally, the Clerk advised the Committee that approximately one-third of all the inquiries handled by his office deal with questions received from persons on whom subpoenas have been served. Most of these inquirers are very concerned about compliance, since they perceive the subpoena to have been issued directly by the court. Quite often, they are surprised to learn that attorneys and parties have the authority to issue subpoenas and find that concept difficult and confusing to understand. The Clerk expressed his belief that the level of public understanding would be further exacerbated were the rule amended to extend the authorization beyond the parties to a case and their respective counsel. Therefore, although unaware of any abuses under the present practice, he believed the potential for fraudulent practice was very real and he opposed any amendment of the rule that would permit such an extension.
Under the existing court rule, a subpoena may only be issued by the clerk of the court or by an attorney or party in the name of the clerk. There is no provision in the rule for the delegation of this authority to third parties by an attorney or party. Further, since it appears that attorneys must complete forms detailing all of the information needed to identify and secure the medical records, it is unclear why the attorneys themselves do not complete, execute and forward the subpoenas to the medical records companies.
In our opinion, any person acting as an agent and executing subpoenas on behalf of an attorney or party to a case is engaged in the unauthorized practice of law. We also believe that any attorney who retains and authorizes a third-party non-attorney to execute subpoenas or deposition notices on the attorney's behalf may be in violation of RPC 5.5(b), which provides that a lawyer shall not assist a person who is not a member of the bar in the performance of activity that constitutes the unauthorized practice of law.