In Re Unnamed Attorney

NOTICE:  This opinion is subject to motions for reargument under V.R.A.P. 40
as well as formal revision before publication in the Vermont Reports.
Readers are requested to notify the Reporter of Decisions, Vermont Supreme
Court, 111 State Street, Montpelier, Vermont 05602 of any errors in order
that corrections may be made before this opinion goes to press.


                                No. 87-485


In re Unnamed Attorney                       Supreme Court

                                             Original Jurisdiction

                                             October Term, 1987


PRESENT:  Peck, Dooley and Mahady, JJ.


     PER CURIAM.   Respondent, an attorney admitted to practice in this
Court, has moved to quash an investigative subpoena issued by the clerk of
this Court on the application of the chair of the Professional Conduct
Board.  We grant the motion to quash with the proviso that the subpoena may
be reissued consistent with this opinion.
     The subpoena was issued pursuant to { 7(f) of the Permanent Rules
Governing Establishment of Professional Conduct Board and Its Operation,
Administrative Order No. 9, as it existed prior to the 1989 amendment.  It
provided:
         (f) The Chairman of the Board, or of any hearing panel,
         shall have the right to subpoena witnesses at any stage
         of the investigation.  The respondent-attorney shall
         have a like right.  Application for a subpoena, in-
         cluding a subpoena duces tecum, shall be made to the
         clerk of this Court, who shall issue the same.

Respondent's main argument in support of his motion is that issuance of the
subpoena must be preceded by a "clear and concise written statement of the
alleged misconduct to be investigated" as prepared by bar counsel and served
on the respondent pursuant to { 7(b).  Respondent argues that issuance of
the instant subpoena without such a statement denies him due process of
law.
     Although there has been no evidence presented to this Court, the basic
facts are not in dispute.  In response to a complaint, the substance of
which is known to respondent, bar counsel sent a letter to respondent's
counsel outlining the "areas of possible interest" and seeking certain
information with respect to them.  That information was provided.  After bar
counsel interviewed relevant witnesses, he sent a letter to respondent's
counsel seeking the answers to five questions and certain documents.
Respondent refused to answer, demanding a statement of the matters to be
investigated.  Upon request of bar counsel, the chair of the Board
requested that the clerk of this Court issue a subpoena to respondent to
appear and testify, bringing with him certain documents.  When the subpoena
was issued, respondent brought a motion to quash in this Court.
     We do not agree that respondent is entitled to a statement of charges
against him before a subpoena is issued under { 7(f).  The statement of
charges requirement, contained in { 7(b), provides notice of alleged
misconduct prior to a probable cause hearing.  This proceeding has not yet
reached the stage of a probable cause hearing, and, thus, no statement of
charges is required by { 7(b).  The subpoena section expressly applies to
"any stage of the investigation," including the pre-probable cause stage.
The request for a subpoena does not itself trigger the requirement for a
statement of charges.
     At least two other courts have addressed the precise question raised
here, both in the context of an investigative subpoena issued to an attorney
under investigation. (FN1) The case more similar to the one before us is
Anonymous v. Attorney Grievance Comm'n, 430 Mich. 241, 256, 422 N.W.2d 648,
654 (1988), where the Michigan Supreme Court concluded that its rule allowed
for the issuance of the an investigative subpoena prior to the service of a
formal complaint.  The court relied upon the plain meaning and structure of
its rules, which were similar to the Vermont rules, and its obligation to
"construe the relevant rules liberally for the protection of the public, the
courts and the legal profession."  Id. at 249, 422 N.W.2d  at 651.
     The Mississippi Supreme Court reached a contrary conclusion in
Mississippi State Bar v. Attorney-Respondent, 367 So. 2d 179, 183 (Miss.
1979) (en banc), construing the relevant Mississippi statutes.  The
Mississippi scheme did not describe "when or under what circumstances the
[subpoena] power arises."  Id. at 182.  Further, the court found "analysis
of that statute in the light of the other statutes governing disciplinary
proceedings indicate that the legislature did not contemplate forced
cooperation by an attorney in the investigative stage."  Id.
     The Vermont provisions are significantly different from those in
Mississippi; our rule does specify when the power can be exercised, and we
can find no intent that attorneys not be required to cooperate in
disciplinary proceedings.  The Michigan scheme, in contrast, closely
parallels ours.  We find the Michigan opinion persuasive and supportive of
the subpoena power exercised here.
     Respondent also argues that allowing the Board and bar counsel to ask
indiscriminate questions without a prior statement of alleged misconduct
violates his due process rights to notice as described in In re Ruffalo, 390 U.S. 544 (1968). (FN2) We have previously recognized, however, that the federal
constitution places minimal restrictions on the issuance of administrative
investigative subpoenas.  See Diamond v. Vickrey, 134 Vt. 585, 588, 367 A.2d 668, 670 (1976).  In Diamond, we noted that "[t]he United States Supreme
Court has [held] that an administrative investigation conducted by subpoena
is constitutionally permissible even if the investigation is grounded on the
mere suspicion that the law has been violated."  Id.  We do not believe that
Ruffalo creates a constitutional right to notice of possible charges at an
investigatory stage of the proceeding.
     Although we have responded to the issues raised by respondent, we are
concerned that the process used here was at least incomplete.  Admitting our
responsibility for the matter, we do not believe that { 7(f) was drafted as
completely as it should have been.  Nevertheless, we conclude that the clerk
is not engaged in a ministerial, nondiscretionary act when issuing a
subpoena under the section.  If his duty were ministerial, he would have to
issue a subpoena at the request of a lawyer being investigated with no
assurance that the testimony or documents to be obtained are relevant to the
investigation.  The involvement of the Board chair in the issuance process
when evidence is sought by bar counsel reduces, but does not wholly
eliminate, the risk of an inappropriate fishing expedition since the Board
chair may be reluctant to elaborate on the factual circumstances at this
stage.
     A similar situation was faced by the Maryland Court of Appeals in
Unnamed Attorney v. Attorney Grievance Comm'n, 313 Md. 357, 545 A.2d 685
(1988), where an attorney challenged an investigative subpoena as being part
of a fishing expedition.  The court specified the minimum demonstration the
Commission had to make to sustain the subpoena: (1) the factual basis,
beyond mere conjecture or supposition, that a violation of ethical standards
has occurred; (2) the relevancy of the information sought to the
investigation; and (3) a showing that the demand is not too indefinite or
overbroad.  Id. at 365, 545 A.2d  at 689-90.  We believe that these
requirements are sound and adopt them for purposes of { 7(f) of our rules.
     When the chair of the Board seeks a subpoena from the clerk of this
Court, the request should be accompanied by the three showings as specified
above. (FN3) Although the information involved will normally come from bar
counsel, the showings must be based on the independent conclusions of the
Board chair that a factual basis and relevancy exist and the subpoena is not
overbroad.  In cases where there is serious question concerning the required
showings, the Board chair may want to obtain the position of the respondent
at a hearing before requesting a subpoena from the clerk.  See Kentucky
Supreme Court Rules, Rule 3.180(3) (1990) (investigative subpoena may be
issued to respondent "for good cause shown" and only after a hearing).
     Since no showing to comply with the requirements of this opinion was
made prior to the issuance of the subpoena, the motion to quash must be
granted.  The current rules, as amended subsequent to the filing of this
action, do not grant authority for investigative subpoenas pending the
resolution of this dispute.  We conclude, however, that former { 7(f) still
governs this case and gives the chair of the Board authority to seek an
investigative subpoena consistent with the requirements specified herein.
     Motion to quash granted.
                                   BY THE COURT:



                                   _______________________________________
                                   Louis P. Peck, Associate Justice

                                   _______________________________________
                                   John A. Dooley, Associate Justice

                                   _______________________________________
                                   Frank G. Mahady, Associate Justice



FN1.    The issue is also discussed briefly in Unnamed Attorney v. Attorney
Grievance Comm'n, 313 Md. 357, 364, 545 A.2d 685, 689 (1988), and North
Carolina State Bar v. Speckman, 87 N.C. App. 116, 123-24, 360 S.E.2d 129,
134 (1987).  Neither case is helpful to the resolution of the issue here.

FN2.    Respondent has not raised self-incrimination concerns, and we assume
that there is no self-incrimination issue here.  As the Supreme Court of
Michigan noted: "The right to subpoena a witness must not be confused with
the right to compel testimony.  Only the former is at issue in this matter."
Anonymous v. Attorney Grievance Comm'n, 430 Mich. at 254, 422 N.W.2d  at 653.

FN3.    We do not have to specify in this case the showing that would have
to be made by the attorney under investigation.  It is sufficient to say
that the showing would have to be comparable to that specified for the Board
chair.