The State Bar seeks public comment regarding a proposed amendment to the Rules of Procedure of the State Bar regarding third party subpoenas.
Deadline: 5 p.m., July 31, 2018
The Chief Trial Counsel has authority to issue subpoenas, both at the investigation stage of investigations and after formal proceedings are commenced. (Bus. & Prof. Code, § 6049(b) and (c)). These subpoenas may be used to secure testimony, procure documents, or both. (Id.). The State Bar Act contains special provisions governing State Bar access to trust account records (Bus. & Prof. Code, § 6069(a)) and other types of financial records (Bus. & Prof. Code, § 6069(b)). In addition, the State Bar is exempted from the Notice to Consumers Act. (Code Civ. Proc., § 1985.3(a)(3).) The Board of Trustees has adopted rules of procedure to implement the State Bar’s statutory subpoena powers. Rules 2501 to 2503 govern OCTC’s issuance of subpoenas at the investigation stage. Rules 5.61 to 5.64 and 5.70 govern subpoenas issued at the discovery and trial stages, motions to quash subpoenas, and enforcement of subpoenas.
A special problem arises when the Chief Trial Counsel seeks to subpoena materials from a third party in a moral character proceeding or in during the course of a confidential investigation. There is a tension between the privacy rights of the subpoenaed party and the confidentiality interest of the moral character applicant or respondent.
This proposed rule amendment is intended to strike an appropriate balance between these two interests.
1. Constitutional Privacy Rights of Subpoenaed Party
Recipients of subpoenas have a right of privacy with respect to their confidential records. This “inalienable right” of privacy is based on the California Constitution (Art I, § 1) and protects “one’s confidential financial affairs as well as to the details of one’s personal life.” (Valley Bank of Nevada v. Superior Court (1975) 15 Cal.3d 652, 656.) A subpoenaed person may enforce his or her right to privacy by bringing a motion to quash in the State Bar Court. (Bus. & Prof. Code, §§ 6051.1, 6069(b); rule 5.60(b), Rules Proc. of State Bar.) In making a motion to quash, the subpoenaed party must establish that “the scope of the records the subpoena seeks is not consistent with the scope and requirements of the investigation.” (Rule of Proc. 5.60(F)(4) [re financial records] and rule 5.60(G)(4) [re non-financial records].)
In order to protect his or her right of privacy by means of a motion to quash, the subpoenaed party needs to know why his or her records are being subpoenaed. Thus, should the State Bar subpoena a third party’s personal records, and not tell that person why we are doing so, that person could complain that we have violated his or her constitutional right of privacy. Yet the subpoenaed party’s privacy interests conflict with the confidentiality interest of the moral character applicant.
2. Limited Confidentiality of Moral Character Proceedings and State Bar Investigations
State Bar investigations and moral character proceedings are confidential (Bus. & Prof. Code, §§ 6060.2, 6086.1(b)). This confidentiality was created by statute, not by the Constitution, and there are a number of exceptions. (See, e.g., rule 2302, Rules Proc. State Bar.) One obvious example is that Supreme Court pleadings and opinions in moral character proceedings are available to the public. (See In re Glass (2014) 58 Cal.4th 500.) A second example is that the Chief Trial Counsel may disclose information regarding investigations when necessary to protect the public. (Bus. & Prof. Code, § 6086.1(b)). Finally, disciplinary investigations become a matter of public record once a notice of disciplinary charges is filed. (Id.) Despite the exceptions to confidentiality, when the Office of Chief Trial Counsel subpoenas a third party’s records, and informs that third party why we doing so, a moral character applicant or a respondent under investigation might still complain that we have violated confidentiality requirements.
The State Bar’s Historical Practice
These statutes and rules, and the State Bar’s subpoena practices, have remained essentially unchanged for scores of year. The State Bar has always attempted to strike a reasonable balance between the privacy rights of subpoenaed citizens and the confidentiality desires of moral character applicants. As a result, for many years, our practice was to provide third-party individual witnesses with a declaration to justify our subpoena of materials; however, we drafted the declarations narrowly. Further, we omitted the name of the moral character applicant or respondent from the face of the subpoena and the declaration.
We believe that this practice was justified for the following reasons:
First, as mentioned above, the recipients have the right to receive the information justifying the issuance of the subpoena.
Second, we originally established our procedures to track those followed in civil cases. Code of Civil Procedure 1985 provides as follows:
(a) The process by which the attendance of a witness is required is the subpoena. It is a writ or order directed to a person and requiring the person's attendance at a particular time and place to testify as a witness. It may also require a witness to bring any books, documents, electronically stored information, or other things under the witness's control which the witness is bound by law to produce in evidence. When a county recorder is using the microfilm system for recording, and a witness is subpoenaed to present a record, the witness shall be deemed to have complied with the subpoena if the witness produces a certified copy thereof.
(b) A copy of an affidavit shall be served with a subpoena duces tecum issued before trial, showing good cause for the production of the matters and things described in the subpoena, specifying the exact matters or things desired to be produced, setting forth in full detail the materiality thereof to the issues involved in the case, and stating that the witness has the desired matters or things in his or her possession or under his or her control. (Emphasis added.)
(c) The clerk, or a judge, shall issue a subpoena or subpoena duces tecum signed and sealed but otherwise in blank to a party requesting it, who shall fill it in before service. An attorney at law who is the attorney of record in an action or proceeding, may sign and issue a subpoena to require attendance before the court in which the action or proceeding is pending or at the trial of an issue therein, or upon the taking of a deposition in an action or proceeding pending therein; the subpoena in such a case need not be sealed. An attorney at law who is the attorney of record in an action or proceeding, may sign and issue a subpoena duces tecum to require production of the matters or things described in the subpoena.
In 2004, the Civil Discovery Act was amended, so that supporting declarations are no longer required for civil discovery (see Terry v. Slico (2009) 175 Cal.App.4th 352). When the Legislature amended the Civil Discovery Act, it did not make conforming amendments to the State Bar Act’s provisions regarding investigatory subpoenas. The Legislature also left intact Code of Civil Procedure 1985’s supporting declaration requirement for trial subpoenas.
Moreover, there is a significant difference between civil discovery and confidential State Bar proceedings. In a civil case, a subpoenaed party can simply visit the courthouse, review the public file, learn what the case is about, and file a motion to quash. In a moral character case, the State Bar Court cannot and does not allow non-parties to review the file or obtain any information about the file. In a pre-Notice of Disciplinary Charges State Bar investigation case, the court does not even maintain a file.
Third, rule 2302(e)(3), Rules of Procedure of the State Bar, expressly authorizes the Chief Trial Counsel to disclose information that is otherwise confidential: “To witnesses or potential witnesses in conjunction with an inquiry, complaint, investigation, or proceeding…” Again, this rule recognizes that even though some proceedings and investigations are confidential, that confidentiality is limited. In order to do its job, OCTC must disclose some information to third parties.
OCTC continues to believe that providing “carefully written and narrowly tailored” declarations that “provide the third party with sufficient information,” but do “not disclose more information than is necessary” is the right balance between the competing privacy interests. As a result, the Office of Chief Trial Counsel believes that the Rules of Procedure should be clarified to expressly allow supporting declarations to be provided to third party.
Regulation and Discipline Committee
5 p.m., July 31, 2018
Written comments may be sent to
OCTC Public Comment – Third Party SubpoenasThe State Bar of California180 Howard St.San Francisco, CA 94105 Email: OCTC_Rules@calbar.ca.gov(Subject Line: Public Comment – Third Party Subpoenas)