More on the abuse of subpoenas by the Horry County Solicitor’s Office

A few days ago, I wrote about the practice of the 15th circuit solicitor and other solicitors around the state of using a clerk of court signature stamp to issue their own subpoenas, and the practice of issuing illegal subpoenas for investigation purposes when no case exists, instead of seeking a search warrant. Greg Hembree, the 15th circuit solicitor, and other solicitors, made public statements that there was nothing wrong with this practice:

Greg Hembree, solicitor for the 15th Judicial Circuit, said there is little legal precedent on how subpoenas can be used for investigative purposes. Prosecutors with the S.C. attorney general’s office said state law does not expressly prohibit their use in such cases.

Besides the text of the S.C. Rules of Criminal Procedure, which do not allow for subpoenas unless there is a pending case, there is a South Carolina ethics opinion which is directly on point, which asks the questions: 1) can a prosecutor obtain a subpoena duces tecum during a criminal investigation prior to the issuance of an arrest warrant or true billed indictment? and 2) can another prosecutor use the information obtained pursuant to that subpoena in a criminal prosecution? The answer:

It would be unethical for an attorney to obtain a subpoena duces tecum in a criminal case prior to there being an active arrest warrant or true billed indictment. Further, it would be unethical for a subsequent attorney, who is aware of the unethical conduct of the first attorney, to utilize the subpoenaed information in a criminal prosecution.

As to the prosecutor obtaining the subpoena:

Rule 8.4 (g) provides that an attorney may not, “knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law.”(emphasis added).
If the rules of procedure or substantive law do not allow for the issuance of criminal subpoenas prior to the existence of an arrest warrant or a true billed indictment, then the request or effort of Prosecutor A to obtain or serve such a subpoena would violate this rule. The attorney may also consider Rule 3.3 and Comments (candor toward tribunals) and 4.1(a) (truthfulness in statements to others).

As to a second prosecutor using evidence obtained as a result of the subpoena:

Rule 8.4 (a) states that it is professional misconduct for a lawyer to “violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another.” (Emphasis added).
Rule 5.1(c)(1) provides that a lawyer shall be responsible for another lawyers violation of the rules of professional conduct if the lawyer “orders or, with knowledge of the specific conduct, ratifies the conduct involved.”
If the first prosecutor has in fact acted unethically in his conduct of obtaining or serving a subpoena duces tecum prior to the issuance of an active arrest warrant or true billed indictment, a subsequent prosecutor who knowingly utilizes the information would violate Rule 5.1(c)(1) and Rule 8.4 (a) of the Rules of Professional Conduct.

Besides issuing their own subpoenas and using subpoenas as pre-arrest investigation tools, the 15th circuit assistant solicitors, at least in the magistrate court division, are mailing their subpoenas to out of state witnesses, then informing the witness that they must appear in court. In one instance, I was told that the assistant solicitor told an out of state witness they would be arrested if they did not appear.
For any newer assistant solicitors who may be reading, the 15th circuit solicitors office does not have the power to compel attendance by a witness who lives in Pennsylvania, New York, or Maryland. There is a process by which attorneys can subpoena an out of state witness, found in S.C. Code Section 19-9-10. When subpoenaing an out of state witness, you must find the comparable statute in the home state of the witness you wish to subpoena. Typically, that statute will require you to have a local judge sign a certificate to compel the appearance of the out of state witness. You must take that certificate to the home state of the witness and schedule a hearing, giving the witness notice of the hearing. At the hearing, you request that the home-state judge issue a subpoena compelling the witness to attend the trial in South Carolina.
So, what is the problem? A witness who does not want to come can move to quash the subpoena, or can simply not appear right? The problem is that issuing the illegal subpoena in the first place, and threatening to arrest a person when you know that you have exceeded your authority, is unethical and it is an abuse of power.

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