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