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Whether You Can Threaten Contempt in a Subpoena for Non-Compliance

John Mastando

Whether You Can Threaten Contempt in a Subpoena for Non-Compliance
Dimitri Otis via Getty Images

The New Jersey State Supreme Court's Advisory Committee on Professional Ethics recent Opinion 729 instructs practitioners that it is likely a violation of the Rules of Professional Conduct to threaten contempt for non-compliance with subpoenas delivered by mail. The committee reminds practitioners that mail delivery of subpoenas is not allowed under the court’s rules. Further, the committee indicates that even when a party agrees to accept service by mail, non-compliance subsequent to delivery of subpoenas pursuant to such agreements will not suffice as a basis to threaten contempt, suggesting that a threat of contempt would require service of the subpoena again, but in person, as a predicate. Lastly, the committee does not reach whether threatening contempt comprises a “false statement” in violation of Professional Rule of Conduct 4.1, but warns that such threats might violate the rules.

New Jersey Court Rule 1:9-1, et seq., governs the issuance of subpoenas. Rule 1:9-3, Service, states that a subpoena may be served on any individual of 18 years or older and requires that service be made “by delivering a copy thereof to the person named together with tender of the fee allowed by law . . . .” Further, Rule 1:9-5, Failure to Appear, provides that “Failure without adequate excuse to obey a subpoena served upon any person may be deemed a contempt of the court from which the subpoena issued.”

Considering these rules six years ago, in NJ Cure v. Estate of Robert Hamilton, 407 N.J. Super. 247 (App. Div. 2009), the New Jersey Appellate Division held that service of subpoenas by mail “is not an effective manner of serving a subpoena on an unwilling non-party.” In that case, the plaintiff twice served the defendant with a subpoena by mailing it to him. Despite service by mail having been accomplished twice, the Appellate Division reversed the trial court’s sanctioning of the defendant for failure to comply with it. The clear message of NJ Cure is that subpoenas must be served in person if parties wish to rely on contempt as a means of enforcement.

Despite NJ Cure’s clear admonition, however, attorneys have continued to send subpoenas to non-parties by regular mail. Thus, in Opinion 729, the State Supreme Court’s Advisory Committee on Professional Ethics declared that it is inappropriate for a subpoena served by mail to threaten contempt for non-compliance with the subpoena, particularly because the court rules do not allow for subpoenas to be mailed in the first place: “Failure to obey a subpoena is deemed contempt of court,” but “[w]hen a subpoena is sent by ordinary mail instead of being served personally, a recipient who fails to obey the subpoena cannot be deemed in contempt of court as the court lacks personal jurisdiction over the recipient.”

The committee also addressed the effect of a witness’s agreement to accept service by mail. While parties and witnesses can reach agreements regarding mailed subpoenas, the committee said that: “[s]uch an agreement, however, does not provide a Court with contempt power for failure to comply with a mailed subpoena.” This accords with the ruling in NJ Cure. Thus, in those situations where a witness agrees to accept service of a subpoena by mail and then fails to comply with it, it appears that a contempt motion will only be allowed if the subpoenaing party first re-serves the subpoena by personal service on the witness.

While the committee failed to conclude that threatening sanctions in a mailed subpoena is a “false statement” under RPC 4.1, it did find that doing so was at a minimum inaccurate and misleading. The committee said that going forward, “lawyers who intentionally include such language in mailed subpoenas, threatening the recipient with sanctions for noncompliance,” may be violating the Rules of Professional Conduct for conduct involving misrepresentation.