Ciceronian Review

Everybody Attorney General

SB 8 is a private attorney general statute as has been pointed out many times by many commentators, and so, they say, it is not different than a multitude of other private attorney general statutes used to enforce various health and safety and anti-discrimination laws.  That description is misleading.  SB 8 enables anyone to sue regarding any abortion (more than 6 weeks after last menstrual cycle).  But not anyone can sue to enforce anti-discrimination laws, or ADA, or disclosure laws.  The plaintiffs has to be injured in some way before a suit may be brought.  For example, to sue under the ADA statutes, one has to disabled int he appropriate sense and be deprived of access in the appropriate sense.  Not just anyone who may sue.  There are similar requirements for all of the private attorneys general statutes that I am aware of.  No injury at all is required under SB 8.  That makes it quite different. I think unprecedented, but I have not surveyed all private attorney general statutes.

Formalism and Realism: Law

Reading commentary on SB 8 I have not found any discussion of the effect of abortion service providers closing in Texas.  Perhaps I read too narrow a selection of legal commentary sites.  Perhaps something else.  Whatever the explanation, I have been waiting for a discussion of what happens, is in fact happening, to women denied access to abortion while the judicial process walks along its circuitous path and whether the nature of the effect matters or should matter to whether the circuitous should be followed.  Unwanted pregnancies will be continued, and children consequent will be born.  What of that effect?  Is there a way that burden can be ameliorated after the fact?  I have not thought of a similar problem for other constitutional rights. Maybe that is a limitation of my imagination, maybe this is unique (or nearly so).  It seems to me that this effect -- unwanted pregnancies compelled to continue and consequent children -- should matter a great deal to the way the judicial processes should work here.

Surely the law will be fully tested in just a matter of weeks, one might think.  First, a matter of weeks matters a good deal here as that pushes some unwanted pregnancies too far out under current law.  Second, why think this will be resolved in a matter of weeks.  The Fifth Circuit has made plain that it will uphold any regulation of abortion.  Surely those judges and their minions can see ways to delay resolution of any appeal.  Set a regular briefing schedule, sit on the decision, etc.  Or simply stay consideration until the Supreme Court acts on Dobbs.

Adhere to proper procedure is fine, but there is also the principle that courts should look to substance over form, and procedure is nothing if not form.    

 

Some Points re Texas SB8

The Supreme Court declined injunctive relief for the Plaintiffs, so SB8 went into force. The Court's refusal to act has been based on the procedural morass that the case presents as there are no state agents empowered to act under SB8.  The decision, of course, says that nothing should be inferred about the merits of the case from this denial and that there are serious constitutional questions about the law.  It is hard to be fooled by such talk,  Doing nothing entails that there will no access to abortion services in Texas.  Every Justice knows that.  Admittedly, it is possible that a Justice who has voted to let SB8 take effect might still vote to retain Roe and Casey.  But why would that happen, as a practical matter?  I think the Justices have committed themselves.

There is no dispute that procedural elements of the statute are quite a problem for those challenging it.  Some suggest a single case against a single clerk and judge is the proper vehicle, with other defendants added as appropriate.  That, of course, is a rather expensive process, and a challenge to financial viability of service providers, as intended.  In fact, the law really doe snot need much to have full effect of shutting down abortion services in Texas.  An almost limitless number of suits are available to anti-abortion stalwarts, at very little comparative costs, and no risk under the statute.  All as designed.

I wonder about what it portends for other issues.  If successful, there is no reason the strategy won't be followed and work for other controversies.  

Here are the points I wanted to make:

Various commentators, including law professors, complain that news media and others wrongly claim that SB8 bars abortions as early as 8 weeks because SB8 refers to Roe and Casey and so does not apply at 6 weeks.  But the professors have the worst of that argument.  The statute does bar abortions: makes actionable any abortion involving a detectable fetal heartbeat (which occurs around 6 weeks).  §171.204(a) (Prohibition of Abortion of Unborn Child with Detectable Fetal Heartbeat).  It says: "Except as provided by Section 171.205, a physician may not knowingly perform or induce an abortion of a pregnant woman if the physician detected a fetal heartbeat for the unborn child...".  171.205 is a "medical emergency" exception (which is quite vague).  So the statute on its face, for textualists and orginalists the end of the story, says abortions after 6 weeks are actionable, i.e., practically speaking, banned.

So where are Roe and Casey?  Two places, first, in a prefatory remark stating that Texas has not repealed its criminal statutes against abortion, and, second, in §171.209(e).  That section provides that the affirmative defense in 209(b) will not be available if either Roe or Casey is overruled regardless of whether the abortion occurred before or after either case is overruled.   209(b)'s affirmative defense is a claim that the defendant has standing to assert a third party constitutional right re abortion and that relief would impose an undue burden on the woman (or group of women).  Now that is the Casey standard, but acknowledging the affirmative defense is not an incorporation of Casey or Roe into the statute in a meaningful sense.  This is an affirmative defense, it admits the validity of §171.204 and 205, and so admits that the state may and has prohibited abortions beginning at six weeks.  That is how affirmative defenses work.  They operate only after there is prima facie liability.   

 

Kraken - No Exit Through Bankruptcy

A few more thoughts regarding the Kraken crew, Sydney Powell, Lin Wood, et al. 

I don't know what the sanction amount will be in the Michigan case.  I don't have a sense of how much time was put in by the Defendants or how many briefs got filed.  And they were  represented by government lawyers I believe (but am not sure), whose hourly rates are different from those of private firms.  I expect the number will be several hundred thousand dollars.  We shall see.  Suppose so.  The lawyers are, as a group, sufficiently wealthy to pay that sort of sanction.  Individually, it is a different matter.  I expect that one or two would be ruined if faced with the total. And, in the end, it is up to the Defendants whom they collect from -- the award is joint and several.  But just in case one is curious, the kind of sanctions imposed in this case are not dischargeable in bankruptcy.  Under 11 U.S.C. §523(a)(6), a judgment based on an injury resulting from willful and malicious conduct is not dischargeable.  Willful injury is "a deliberate or intentional injury, not merely a deliberate or intentional act that leads to injury."  Kawaauhau, 523 U.S. at 61 (emphasis in original).  An act is malicious under 523(a)(6) when the person acts in conscious disregard of their duties or without just cause or excuse.  Malicious intent occurs when the actor desires to cause the consequences of his act, or believes that the consequences are substantially certain to result form it."  In re Moore, 357 F.3d at 1129.   Those standards are met.  Judge Parker's order clearly and explicitly attributes to each lawyer individually bad faith conduct.  That is, each is found to have acted in conscious disregard of their duties (as lawyers) and of the rights of Defendants.  Their conduct aimed at imposing costs on Defendants, not vindication of any cognizable rights of Plaintiffs: "And this case was never about fraud--it was about undermining the People's faith in our democracy and debasing the judicial process to do so."  (3)  A point supported by the failures to correct errors or to withdraw papers that are either moot or unfounded, itself grounds for sanctions.

What sort of defense might the attorneys have put on once the Court gave notice that it was considering sanctions?  That is something I have pondered from time to time since listening to the July 12 2021 hearing.  The defense that presented at the hearing (save for Newman and Rohl) was hard to credit.  The argument was that these various 'witnesses' signed affidavits and some of the affidavits had been submitted to other (state) courts.  Attorneys are entitled to rely on affidavits as reasonable investigation and attorneys themselves are entitled to be believed by the court.  Finally, we can show that the affidavits are credible if, Judge, you will hold an evidentiary hearing so the 'witnesses' can be examined.  But none of those arguments makes sense.  The affidavits submitted to the state court had been found to be inaccurate and not credible.  Anyway, how would the fact if filing make the affidavit credible, or remove the duty to investigate?  More importantly, it would make no difference because the affidavits just do not support the allegations of the Complaint; whether true or false, the affidavits are irrelevant to the allegations of the Complaint.  It is the Complaint that the lawyers are responsible for, and that is unsupported.  It is just false that attorneys can step out from the duty of reasonable investigation by blind reliance on a party's or third party's assertions -- the assertions have to be plausible.  These weren't.  And attorneys are not entitled to credibility or plausibility merely because they are the source of some allegation.   As to the evidentiary hearing line, well, it would serve no purpose.  The affidavits are irrelevant.  Having witnesses repeat the statements cannot change that.  As the Plaintiffs' lawyers knew what the Judge was concerned about before the hearing, namely the basis for and investigation of the allegations of the Complaint and Amended Complaint, the lawyers' arguments seem to be so bad as to invite sanctions.  (I was a little surprised that the Judge did not impose further sanctions for such bad arguments.)  All I have come up with that they might have accepted fault for the conduct and requested leniency.  Which is not a defense, I know.

Another Loss For Kraken

The US District Court for the Eastern District of Michigan handed down its order on the motions for sanctions against Plaintiffs' counsel, the Team Kraken.  The decision, as expected, went against Team Kraken.  It s a long order, 110 pages, covering the jurisdiction and authority of the court, the standards for imposing sanctions, the procedure to date, the factual bases for sanctions, and individually for the offending conduct the of the attorneys sanctioned.  There are a couple of points  want to note today, before a longer discussion (perhaps) tomorrow.

The primary Plaintiffs' lawyers were Lin Wood, Sydney Powell, Howard Kleinhendler, Stefania Junttila, Julia Haller, Brandon Johnson, Scott Hagerstrom.  Their misdeeds and misconceived arguments are set out in detail.  They got what they deserved: monetary sanctions, order to take CLE (to be attested by counsel in Michigan), and referral for disciplinary proceedings including disbarment.  More about them in a later post.

Two lawyers played much smaller roles: Emily Newman and Gregory Rohl.  Newman was contract lawyer, did not have a role in drafting the complaint, and had quite limited work on the case (about 5 hours).  (34)  Rohl was local counsel.  He filed the papers at the request of the lead counsel, and, he said, reviewed the complaint before filing -- 830 pages in about an hour. (36).  They both received sanctions.  In fact, all of the lawyers are subject to the same set of sanctions: jointly and severally liable for Defendants' fees (excluding Davis), completion of 6 hours of CLE credits on pleading standards and 6 hours on election laws, and all were referred to their respective Bar for disciplinary investigation and proceedings.

Newman's name was on at least some of the offending papers, in particular the initial and amended complaint.  In permitting (or agreeing) to have her name on the papers, she endorsed the papers, took responsibility for the papers complying with Rule 11 and attested that the papers were filed in good faith and a proper purpose.  She did not withdraw her name from any of the papers, and did not disassociate herself from the failure to voluntarily and timely dismiss the complaint when the complaint became moot.  She signed on.  Rohl is the same boat.  He signed the papers and never withdrew. 

It is not new that sanctions can be imposed on local counsel for papers drawn up by lead counsel.  The days of "dropbox" local counsel have been long gone.  There is no dispute that local counsel vouches for what they file and that they have to review the papers to make sure a reasonable attorney would file them.  Nor can local counsel get protection by having lead counsel do their own filing after the initial papers and pro hac admission.  In the jurisdictions where I practiced, the rules required local counsel to be on every paper filed and affirm that they would ensure compliance with all of the rules.  So Rohl goes with Powell and Lin.

Newman is, I think, a more sympathetic case.  Contract lawyers have little control over anything, lead economically precarious lives, more so that other attorneys I believe.  She put in few hours and had no part in the worst papers.  But her name was on them, and other offending papers.  That put her on the same block to be chopped along with Powell and Wood.  For us, that is other lawyers, she an example of risks exceeding responsibility and compensation.  Does she deserve the same treatment as Powell and Wood and thier cohort?  Perhaps not (I think not).  But how fine should the lines be drawn in this case?  I see reasons for the judge to decline making distinctions, e.g., all signed the  papers, none took proper steps to withdraw or amend, none investigated any of the allegations or claims before filing (or even after I think).  Lie down with dogs.. 

Kraken Under Siege

^{Back in July (the 12th I believe) the District Court in Detroit Michigan held a hearing on imposing sanctions on the team of lawyers who filed a lawsuit seeking to have the election results thrown out. An all day hearing, which was interesting to listen to and watch. The judge permitted the parties to file supplemental briefs, which have now been filed. I want to discuss the hearing, although it was a month ago. But before that a couple of notes about other related developments.}

^{First, the District Court in Colorado has imposed sanctions on the Kraken legal team who filed there: they must pay the legal fees of the defendants, who ranged from Dominion Voting Systems to the Secretaries of State for Georgia and Pennsylvania. Sanctions are likely to run to several hundred thousand dollars. Sanctions were imposed under Rule 11 and the inherent powers of the Court.}

^{Second, in the District of Columbia, Sydney Powell is facing a defamation suit by Dominion Voting Systems, based on Powell’s claims of voter fraud, stolen elections, switched votes. In her motion to dismiss the suit, Powell argued that no reasonable person would believe her statements were factual. A reasonable person would consider her various allegations that Dominion Voting Systems rigged election outcomes and manipulated tabulation were merely opinions and not statements of fact. That Dominion Voting Systems’ Complaint labels the allegation as wild, and outlandish was part of her argument. I guess the idea was that the more outrageous the defamatory statement the less likely it is that a reasonable person would believe it a statement of fact, and so no defamation action would be possible. Well, that theory is not quite so bad as Powell’s claims, or the theories of Kraken suits, but it is pretty bad. My guess is that it is just short of sanctions. More interesting is the conversations that occurred in drafting the motion. I wonder what the lawyers told one another as they wrote it, and what they said in signing it. The Motions to Dismiss (by Powell, Giuliani, and Mike Lindell heard together as related cases) were denied. In D.C., Powell and Lindell claimed that the court did not have personal jurisdiction over them. Unfortunately, Powell made defamatory statements in D.C., transacted business there, and Dominion suffered injury there. So too Lindell.}

^{Third, there are host of disciplinary complaints still pending. Or they might be pending. Attorney disciplinary processes are almost always secret, at least until sanctions are imposed, so it is hard to tell when there is an investigation. But given that court imposed sanctions are still coming down, it is likely that disciplinary investigations are also still going on.}

^{Now to the arguments at the July Kraken hearing in Detroit. The judge held he hearing so that she could hear from the plaintiff attorneys what basis they had for the allegations of their complaint, in other words, what was the evidence from which a reasonable attorney might conclude that the allegations had a plausible basis in fact. The attorneys over and over again pointed to declarations attached to the complaint as providing reasonable grounds for the complaint. And then to ask for an evidentiary hearing. Neither line of argument got traction with the judge. The recurring problem for the plaintiff attorneys was that the declarations either had no relevance to the allegations of the complaint, or were facially implausible or incredible, giving the attorneys reason to check on the veracity of the witness statements. In response to such points the attorneys raised the argument that they were entitled to believe sworn statements without more, and that some at least had been filed with other courts and so were entitled to be believed. To which one might reply, and the judge did several times, that attorneys are not entitled to just accept whatever a client or witness says particularly when the statements are facially implausible. And, in many instances, the the declarations had no relevance and so did not support any of the allegations or claims. This went round and round and round, the judge asking for the basis for reasonable belief in the allegations and claims and the attorneys pointing to declarations and asking for an evidentiary hearing (so the witnesses would be before the court and they could answer any questions). This did not strike me as a persuasive course of argument. And repetition did not make it more persuasive, but instead less. The strategy seemed to be to stand on the work and ask for a hearing over and over becuase at a hearing they would be able to put on their case. As the judge had dismissed the complaint, it seems oddly hopeful to think the judge would now relent and have an evidentiary hearing on a case that was already dismissed. But what else could they have done? Admit the errors and hope for leniency? Well, yes, that does seem to be what reasonable lawyers would do as there was no defense.}

^{Only one lawyer seemed to me to be deserving of leniency, perhaps even dismissal form sanction, a contract attorney who had put in a few hours (5) on the case. Seemed to em that such a person does not have sufficient control or influence over the work to be tagged with sanctions.}

^{As noted above, the supplemental briefing is done. We await the decision of the judge. Given the outcomes in other Kraken cases, I think it will be a bad day for plaintiffs’ counsel.}

Guard Dogs Asleep

In the aftermath of the impeachment trial there are various blog discussions of the performance of Trump's lawyers, the rules of professional conduct they appear to have violated.  Similar discussions went on as the 60+ Trump lawsuits concerning the election were dismissed.  Although all of the lawsuits were frivolous, as far as I can tell just one judge has considered sanctioning the lawyers.  After those suits, a slew of complaints were filed with the relevant State Bar disciplinary agencies.  I filed a couple myself concerning the later election lawsuits.  The factual and legal claims were without foundation and no reasonable person could believe after making the required investigations.  So far as I know none of the disciplinary agencies have done anything.  Of course, it has only been a couple of months now, so it is early to see any action taken.  And, of course, the investigations are confidential.  It may be that there will be sanctions, but I am dubious.  The Utah OPC, for example, has  sought sanctions against a government attorney in the last 20 years just once, and then after the statute of limitations expired.  They do not prosecute politically connected lawyers no matter how ridiculous the legal work.  To be fair, people rarely bother to complain.  And judges seem equally loathe to uphold the standards.

It is clear that Trump's team did a properly awful job and violated plenty of rules of professional conduct.  Sanctions, even informal or private sanctions, are not likely. 

All the talk of professional standards, and rule of law, it rarely matters. 

 

No Case Law To Support

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. 

Not In The Text

A natural starting point for grounding the subpoena power of the Ethics Committee and its chair is the Utah Constitution.  The rulemaking power of the Supreme is set out in Article VIII, Section 4:

The Supreme Court shall adopt rules of procedure and evidence to be used in the courts of the state and shall by rule manage the appellate process. The Legislature may amend the Rules of Procedure and Evidence adopted by the Supreme Court upon a vote of two-thirds of all members of both houses of the Legislature. Except as otherwise provided by this constitution, the Supreme Court by rule may authorize retired justices and judges and judges pro tempore to perform any judicial duties. Judges pro tempore shall be citizens of the United States, Utah residents, and admitted to practice law in Utah. The Supreme Court by rule shall govern the practice of law, including admission to practice law and the conduct and discipline of persons admitted to practice law.

The last sentence is the one that might give a hook. It gives the Supreme Court the power to make rules concerning "the conduct and discipline of persons admitted to practice of law."  The Supreme Court then has the power, which it has exercised, to set up a rule-governed process for disciplinary actions and investigations.  That power would encompass the ability to make rules requiring those in practice to cooperate with investigations, to provide documents and information in an investigation, and so on.  But my question is not whether the Supreme Court can do those sorts things but where the power to force third party non-lawyers to provide documents and information, sit for depositions, etc., lies.  Subpoenas of this sort are not within the scope of "conduct and discipline of persons admitted to practice law" because the subjects do not even purport to practice law.  Innocenza and her company are lawyers or providers of legal services. On its face, Section 4 gives no basis for issuing subpoenas.  And, in general, the Supreme Court has told Utahns that plain language is one of the keystones for understanding the Utah Constitution.  So we look elsewhere.

Pointless Appeal

Under the new Rules of lawyer discipline in Utah, either or both OPC and Respondent may serve subpoenas after obtaining approval of the chair of Ethics Committee.  (11-512 and 11-523.). As noted last time, the standards for OPC and Respondent are not quite the same; at least they are described differently.  The information flow is tilted in favor of OPC, which can issue subpoenas to Respondent and to third parties while Respondent may issue subpoenas only to third parties.  I do not know the basis for the Oversight Committee's decision to structure these things in this manner -- there are no notes with the new Rules and the Oversight Committee minutes are a model of corporate minute taking.  There is no indication at all of why anything is being decided one way rather than another; one must be satisfied with a list of topics which were, however briefly, mentioned. 

An aspect of the new Rules that I mentioned but did not previously discuss is that the process for opposing or challenging or attacking a subpoena.  A third party may challenge a subpoena by Respondent by complaining to the chair of the Ethics Committee or by an "proper application" to a District Court judge.  11-512(d).  (11-512(c) says the subpoena may be enforced by a district court ("upon proper application") and 11-512d) says the district court of the Committee chair "will hear and determine any attack on an issued subpoena".  How does the chair hear and determine when the application has to go to the district court?  Is that on referral by the court, as a kind of special master?  Only the district court issues a "resulting order."   So the chair issues a recommendation to the court?   

A challenge to an OPC subpoena goes only to a District Court judge.  11-523(e).  No appeals from the decision of the chair or the District Court until after the "entry of a final order in the disciplinary proceeding."

One oddity and one injustice: Why the difference in treatment of challenges to a subpoenas?  Why confine challenges to OPC subpoenas to a filing in a District Court?  Is the chair too biased to consider the challenge?  But that is who approves the subpoena in either case, so it is not bias on that basis.  Is it that the chair is too close to OPC?  But then the chair should not be deciding challenges in either case.  Is it a concern that Respondents will routinely challenge OPC subpoenas to Respondent and forcing it into court increases the costs to Respondent and so is slightly discouraging?  That seems a poor line of reasoning, and an improper use of procedure.  

The injustice is that there is no appeal of a decision on a challenge to a subpoena.  Technically, one could appeal after the close of the proceeding, but that is an empty purse.

It is not clear when that occurs.  Are the disciplinary proceedings everything before filing a case in the District Court, or is the lawsuit also part of the disciplinary proceedings?  The definitions do not help s they define Action (the civil lawsuit filed by OPC) but do not define "proceeding". 

Consider third party Innocenza who receives a subpoena from OPC for personal and business records to which she objects.  First, Innocenza must file her objection with a District Court.  She must hire a lawyer to address the business records.  She has to pay the Court in order to file whatever it is that is appropriate.  So she incurs expenses. What does Innocenza file?  The Rule says "on proper application".  What does that mean?  A motion?  But if a motion is called for why does the Rule not say that?  As it does not say a motion is needed, then one must assume that other sorts of things, i.e., documents other than motions, will satisfy the Rule.  One would like to know what -- a letter?  An email?  Does it even have to be a document?  I suppose if a lawyer in involved it would be a motion as that seems the safest course.  Still, why such unhelpful drafting?  Why create traps for the self-represented?  If it is a motion under URCP 45 (or 45 and 37), why not say that?

Or maybe Innocenza provides her objections and waits for OPC to seek an enforcement order.  At least then OPC pays the filing fees.  Maybe that is the plan.  There is a possible hitch in that the Rules say that an attack on a subpoena is decided under URCP 45, but nowhere says that objections are to stated as provided for under URCP 45 -- I would guess that URCP 45 grounds for objection apply to these subpoenas as well, and no others, but there is nothing that says that.  And how are objections made exactly?  Does the recipient send a letter objecting?  Do they have to serve OPC and Respondent?  What is the time frame for objections?  The safe guess is URCP 45 controls everything not specified as different, but that is not what these Rules say. 

Rule 11-542 says that URCP, URE, etc. apply in Actions, which are proceedings in court.  11-533 says that URCP governs "filing and service of documents" "to the extent applicable."   So it is likely, but not certain, that URCP 45 governs.  The URCP filing and service Rules are built on how things get to the court clerk and to parties to the case -- there is no court case if there is no Action, so does one just lop off the mentions of filing with the court and assume everything else remains the same? 

Maybe it is that these issues are solved by notice on the face of the subpoena.  There is no approved form referenced in the Rules.  Ah, says the Helpful One, just use the URCP 45 form approved by the court.  Good idea, except it cannot be done.  The URCP form requires information that is not available.  Recall that the subpoena is issued before there is a case in District Court, so there is no court case, no case number or case name, and no court with jurisdiction.  How is Innocenza supposed to sort all this out?  She hires a lawyer.

Suppose now that Inncenza has made her objections and the District Court has overruled the objections.  She can do nothing more, according to Rule 11-523 until the proceeding is concluded.  Innocenza has been forced to produce documents and sit for an intrusive and, in her view, improper deposition.  Her recourse is wait until all the damage is done and is effectively irreparable and then file an appeal.  To what end?  What could she obtain from the Court of Appeals or the Supreme Court as remedy?  A note thanking her for complying with the District Court order and apologizing for that Court's error?  The documents are out, the time lost, the answers are out.  While there may be policy reasons to limit appeals by OPC and Respondent, what are the arguments for denying third parties due process and the ability to challenge decisions about subpoenas? 

When may Innocenza file this appeal?  At the end of the proceeding, but proceeding is not a defined term.  Maybe it means just the proceedings before the Ethics Committee, but it could equally encompass any subsequent Action (defined as a lawsuit). 

That leaves the question of the source of the subpoena.  Which promises some trouble of its own.