Another SC Attorney Disciplined for Subpoena Abuse (Not a Prosecutor)

The SC Office of Disciplinary Counsel (ODC) recently reprimanded another private attorney for abusing the subpoena power.

How many prosecutors have been reprimanded for abusing the subpoena power? None that I am aware of.

Is this because they don’t engage in this kind of unethical behavior? No. It’s because they are not held accountable by anyone.

The reprimanded attorney issued 17 subpoenas as part of a civil action he filed in Orangeburg County against a company that sells above-ground swimming pools. However, he failed to give appropriate notice to opposing counsel, and he only provided them with copies of the subpoenas after repeated requests.

This is a good thing – it is important that ODC take whatever action is necessary to make sure attorneys comply with the ethics rules and do not abuse the subpoena power – it affects the public’s perception of attorneys and it prevents potentially unscrupulous attorneys from abusing their power or taking advantage of people.

In South Carolina, Prosecutors Play by A Different Set Of Rules

Unfortunately, ODC only seems interested in policing these kinds of ethics violations when they are committed by private attorneys – not when prosecutors break the rules.

The result is unsurprising – without accountability, many prosecutors consistently abuse the subpoena power and violate other ethics rules.

In fact, prosecutors have little to no incentive to follow ethics rules, considering the following:

  • Prosecutors can’t be sued for unethical conduct or for violating the civil rights of defendants;
  • Judges often protect prosecutors and rarely find that prosecutorial misconduct occurred;
  • Convictions are almost never overturned based on prosecutorial misconduct; and
  • ODC rarely disciplines prosecutors for ethical violations.

Apart from personal ethics and the desire to do the right thing, what incentive do prosecutors have to follow the rules?

South Carolina defense attorneys know this. Attorneys have told me that there is no point in reporting prosecutorial misconduct because ODC will do nothing about it. In fact, if a defense attorney files a grievance with ODC against a prosecutor, they may be exposing themselves to retaliation in the prosecutor’s response.

Local Prosecutors Abuse Subpoena Power with Impunity

In prior blog posts, I’ve talked at length about subpoena abuse by prosecutors in Horry County and statewide. In other areas of the country, organizations like the Southern Poverty Law Center have taken on the issue of prosecutorial abuse of the subpoena power. In South Carolina, no one cares about the same or similar conduct:

Prosecutors in Horry and Georgetown Counties have engaged in rampant abuse of the subpoena power for decades with impunity. At a pretrial hearing in a 2009 case in Horry County, the Clerk of Court and others testified under oath that illegal use of subpoenas had been ongoing in Horry County since at least 1986 through 2009 when the hearing took place.

  • Criminal subpoenas in SC must be signed by the Clerk of Court. In Horry and Georgetown Counties, the prosecutor’s office had obtained a stamp with the clerk’s signature and distributed it to their office’s investigators, who would then stamp and issue subpoenas at the direction of prosecutors, bypassing the clerk’s office completely.
  • Criminal subpoenas, per SC Rule of Criminal Procedure 13(a), must be issued for a “cause or matter in the General Sessions Court,” must state the name of the court, and must state the titled of the action. The Horry County solicitor’s office, bypassing the clerk of court, regularly issued subpoenas titled “State v. Criminal Investigation,” with a made-up case number or no case number at all, and issued them to obtain evidence before there was even a court case.
  • Prior to a court case being opened, it is a violation of defendants’ Fourth Amendment rights and their rights under Article 1, Section 10 of the S.C. Constitution to seize property without a search warrant issued only after a neutral magistrate determines that there is probable cause. Horry County solicitors routinely issued these subpoenas before any case was opened instead of seeking a search warrant from a judge.
  • Horry County solicitors have mailed subpoenas to out-of-state witnesses without complying with the rules for out-of-state subpoenas, found in S.C. Code Section 19-9-10, in some instances threatening to arrest witnesses if they did not comply with the illegal subpoenas.
  • Horry County solicitors have routinely issued subpoenas directing witnesses to appear at their conference room under threat of contempt of court.

Perhaps witnesses who receive illegal subpoenas could sue for abuse of process – this conduct is pretty much the definition of abuse of process isn’t it? Wait, prosecutors have immunity from lawsuits…

Judges do not make findings of prosecutorial misconduct. Witnesses usually do not even know that the subpoena they received is illegal. ODC does not discipline prosecutors for subpoena abuse, and other attorneys do not file grievances because there is no point. Cases are not overturned on appeal for subpoena abuse.

I don’t have the answer – I’m just continuing to point out the problem and the frustration of knowing that if I engaged in similar conduct I would be disciplined.

Anyone?

SC Criminal Defense Lawyer in Myrtle Beach and Columbia

SC defense attorney Lacey Thompson at the Thompson Defense Firm accepts criminal defense cases in the Columbia, Lexington, Conway, and Myrtle Beach SC areas. Call at 843-444-6122 or fill out our online contact form if you have questions or to set up a free initial consultation.

2 Responses to “Another SC Attorney Disciplined for Subpoena Abuse (Not a Prosecutor)

  • Great article on an unjust system that seems to only go one way.
    This just about sums it up:
    http://www.sccourts.org/discCounsel/

    How to File a Complaint
    There are no forms or other special requirements to file a complaint, but some things are necessary for both judicial and lawyer complaints.
    ——-
    There’s not even a complaint form!!! How negligent is that??? Just another way to make it harder on Joe and Jane Citizen. Name is required! No anonymity or protection for the witness.
    Grrrrrr

    How is it possible to not have accountability for wrongdoings by prosecutors???

    Chaz

  • Hey Chaz – there is no form to file a grievance. You can send a letter that explains what the attorney did and include any materials that support the allegation. It must contain allegations based on violations of specific ethics rules or it will be dismissed without investigation.

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