Model Rules for Lawyer Disciplinary Enforcement
Oaths. Any member of the board or of a hearing committee in matters before it, disciplinary counsel in matters under investigation by him or her, and any person authorized by law may administer oaths and affirmations.
Investigatory Subpoenas. Before formal charges have been filed, disciplinary counsel may, with the approval of the chairperson of a hearing committee, compel by subpoena the attendance of witnesses, and the production of pertinent books, papers, and documents, in accordance with [appropriate state rule of civil procedure].
Subpoenas for Deposition or Hearing. After formal charges are filed, disciplinary counsel or respondent may, in accordance with [appropriate state rule of civil procedure], compel by subpoena the attendance of witnesses and the production of pertinent books, papers, and documents at a deposition or hearing under these rules.
Enforcement of Subpoenas. The [appropriate court of general jurisdiction of the circuit, county, or city] in which the attendance or production is required may, upon proper application, enforce the attendance and testimony of any witnesses and the production of any documents subpoenaed.
Quashing Subpoena. Any attack on the validity of a subpoena so issued shall be heard and determined by the chair of the hearing committee before which the matter is pending or by the court wherein enforcement of the subpoena is being sought. Any resulting order is not appealable prior to entry of a final order in the proceeding.
Witnesses and Fees. Subpoena and witness fees and mileage shall be the same as those provided for proceedings in the [appropriate state court of general jurisdiction].
Subpoena Pursuant to Law of Another Jurisdiction. Whenever a subpoena is sought in this state pursuant to the law of another jurisdiction for use in lawyer discipline or disability proceedings, and where the issuance of the subpoena has been duly approved under the law of the other jurisdiction, the chair of the board, upon petition for good cause, may issue a subpoena as provided in this section to compel the attendance of witnesses and production of documents in the county where the witness resides or is employed or elsewhere as agreed by the witness. Service, enforcement, or challenges to this subpoena shall be as provided in these rules.
Commentary
If the complainant cannot furnish adequate evidence to substantiate his or her allegations and the respondent will not cooperate, counsel must seek independent evidence. If this evidence consists of testimony of a potential witness who does not want to get involved or the records of a third party, such as a bank that will not disclose the transcripts of its depositors' accounts voluntarily, disciplinary counsel without subpoena power will be unable to dispose of the complaint on the merits. Disciplinary counsel thus denied an indispensable investigatory tool can neither be effective nor command public confidence.
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