I have found one case that bears on the authority for issuing subpoenas in the Utah attorney disciplinary process (before filing a complaint in the District Court): Nemalka v. Ethics and Disciplinary Committee, 2009 UT 33. The salient paragraphs are 16 and 17.
The screening panel found against Nemelka, he requested an exception hearing under Rule 14-510(b)(2) and 4-510(c). (The process then was a hearing before a screening panel, a possible appeal - the exception hearing - before the Ethics Committee chair or designee. Litigation in the District COurt might then follow.)
14-510(c) provides that at an exception hearing “The complainant need not appear personally unless called by the respondent as an adverse witness for purposes of cross-examination.” Nemlka tried to subpoena complainant (Ms. Simmons) but did not succeed “in procuring her attendance at the hearing.” ¶16. It is not clear just what the phrasing means. I think Nemalka served one or more subpoenas under URCP 45, i.e., filed out the subopoena and served it, but Ms. Simmons declined to appear. However, it could be that service was not made. The Supreme Court does not say more on what actually happened.
Ms. Simmons did not attend, Nemalka thought he had a right to have her there under subpoena, the chair and OPC disagreed. The Supreme Court noted that all three, Nemalka, OPC, and the chair, got it wrong. Nemalka could compel attendance by subpoena but he could not use Rule 45. Instead, Nemalka had to follow Rule 14-503(g). Rule 14-503(g) states: “Any party or a screening panel, for good cause shown, may petition under seal the district court for issuance of a subpoena, subpoena duces tecum or any order allowing discovery prior to the filing of the formal complaint.” ¶17.
So, under the old Rules, a subpoena was possible, but issued by a District Court, not by the Ethics Committee chair, and not under Rule 45. Nemalka provides no basis for thinking that revising the Rules will suffice to give the Committee chair the power to issue a subpoena. The Supreme Court directed the parties to apply to a court for a subpoena. It did not ask an advisory committee to look at Rule 14-503(g) to simplify or alter things. Of course, it also did not say that issuance by a court was mandatory, as the sole means to obtain a subpoena, so there is room.
The question of the authority to issue subpoenas remains unresolved.
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