LEO: Representation Within the Bounds of the LE Op. 1350
Representation Within the Bounds of the Law - Trial Conduct:
Attorney Failing to Forward a Copy of a Praecipe Requesting
Witness Subpoenas to Opposing Counsel.
May 24, 1990
You have informed the Committee that you represented a client in domestic
relations litigation which was referred to a commissioner in chancery for
a hearing on the issue of marital fault. You indicate that opposing
counsel filed a praecipe with the circuit court clerk requesting the
issuance of witness subpoenas returnable at the hearing. Finally, you
allege that opposing counsel intentionally did not mail a copy of the
praecipe to you resulting in the witnesses appearing at the hearing and
testifying against your client without your knowledge.
You ask that the Committee consider the propriety of opposing counsel's
The appropriate and controlling disciplinary rule to the circumstances
you describe is DR:7-105(C)(5) which mandates that, in appearing in his
professional capacity before a tribunal, a lawyer shall not intentionally
or habitually violate any established rule of procedure or of evidence,
where such conduct is disruptive of the proceedings. Additionally, of
relevance is DR:7-102(A)(3) which prohibits a lawyer from concealing or
knowingly failing to disclose that which he is required by law to reveal,
in the representation of a client.
It is the opinion of the Committee that the plain language of Virginia
Supreme Court Rule 1:12 does not require that a copy of a praecipe
requesting witness subpoenas be served on each counsel of record. In the
absence of a local rule or pre-trial order requiring such service, the
Committee therefore does not find any ethical impropriety.
Committee Opinion May 24, 1990