Saturday, April 3, 2010

Do attorneys have the authority to issue subpoenas in post-judgment motion practice ?

In the absence of definitive legal authority to the contrary and based on tradition and practice, they issue subpoenas to gather information from parties and non-parties sometimes even before any motion has been filed with the court. Examples of non-court ordered post-judgment subpoena requests include seeking tax returns, personal and business bank statements, salary information from employers, disclosure from e-bay on sales, and testimony from police officers.

An editorial in the January 2009 issue of the “New Jersey Family Lawyer” discusses this issue and advises attorneys to proceed with caution with post-judgment discovery, stating, “[i]t does not appear that there is a sufficiently clear policy in the rules precluding a post-judgment subpoena, but an alternative argument could be made, because there is silence of the rules on this issue.”

The editorial discusses in detail the Monmouth County trial court opinion in Welch v. Welch, where an attorney issued a subpoena prior to filing a post-judgment motion with the court and the evidence was excluded when the motion was heard. The editorial does not take a position, concluding that “the entire issue should be considered and addressed by the Supreme Court Family Part Practice Committee.”

Neither the opinion in Welch nor the editorial in the "New Jersey Family Lawyer" discuss the NJ Supreme Court decision in Lepis v. Lepis, 83 N.J. 139, 157 (1980) which clearly states that post-divorce discovery should only be ordered by the court once a prima facie case of changed circumstances has been made.

The right to conduct depositions, subpoena witnesses and participate in unfettered discovery as part of post-judgment motion practice would obviate the need for any prima facie case of changed circumstances to be made before financial disclosure is ordered. Attorneys who subpoena opposing parties employment records or tax returns, therefore violate the principals set forth in Lepis by not first meeting their burden of making a prima facie case of changed circumstances before seeking court ordered discovery.

After a divorce, parties have a right to privacy that must be respected in the absence of a showing of need to the court for the information. Id. (“We recognize that individuals have a legitimate interest in the confidentiality of their income tax returns.”)

My take on this is that absent a court order there is no authority for an attorney to issue a subpoena in post-judgment motion practice and those attorneys that do run the risk of sanctions for abuse of the discovery process. However, there is the need for clearer guidance on this issue in the New Jersey Court

Family law attorneys need to be more responsible when accepting cases and pursuing a client's ex.  Law firms need to put controls in place to monitor their attorneys instead of focusing on their bottom line. 

The liability of the divorce litigator.

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