Suppose that you are a civil lawyer representing a business or government entity in Texas, and your client is served with a subpoena in a criminal case. The subpoena is returnable “instanter,” and asks that your client produce certain documents along with a business-records affidavit.
What do you do?If you are Shannon Kackley of Austin’s Denton Navarro et al., you look up the Texas criminal subpoena statutes, notice that a subpoena must require the witness’s appearance “before a court” “at a specified term of the court or on a specified day” (and not instanter), and send the defense lawyer this email:
This Firm and I represent the City of Bay City, Texas and the Bay City Police Department.
We have been informed that you have recently provided a copy of the attached document to the Bay City Police Department. We have reviewed the purported subpoena and determined that it is invalid and unenforceable.
If you wish to obtain documents from the Bay City Police Department, please properly serve it with a valid subpoena duces tecum under Article 24 of the Texas Code of Criminal Procedure.
If you have any questions, please do not hesitate to contact me.
Why is that the wrong call? Because, while you may not realize it, I have done your client a kindness by allowing it to produce the records along with an affidavit instead of—as the statute clearly allows me to require—appearing before the court to testify on a specified day. Not accepting this kindness, and refusing to comply with the subpoena because it doesn’t strictly track the statute, is maybe not in your client’s best interest.
Now, you don’t realize this because, like a teenager who has invented sex, you are so impressed with yourself for finding What the Dumb Old Criminal-Defense Lawyer Did Wrong. So when you get the next email, you don’t know what’s coming next:
I don’t know why you’d want to make things difficult for me, but okay. Will you accept the subpoena on behalf of your client?
If you had bothered to consult with a criminal-defense lawyer, she would have told you that I had offered your client a kindness, and you could have avoided making the wrong call. But you don’t. Instead you email back:
I can’t. My boss won’t allow us to accept service. …
It probably would have behooved you to go and talk to your boss about accepting service, but nope. Fine, I’ll serve your client with bells on.
There’s a certain loser logic in all of this so far—21-year civil lawyer who is still an associate and doesn’t even have discretion to accept a subpoena on behalf of a client fails to recognize the gift that his client has been offered.
Here, though, is where it gets inexplicable:
… But when you serve the PD with a valid subpoena, please attach the business record affidavit that you want completed. It makes it easier for the PD and ensures the correct document is executed.
After I’ve pointed out that you are making things difficult for me, why on Earth would I want to make things easier for your client? Your client has done nothing but try to make things difficult for me. Why are you still an associate? Big mystery. Could it be because you are a poster child for poor legal judgment?
Maybe the subpoena is unenforceable. We’re not going to find out because I’m not going to request an attachment. Instead I’m going to serve your client with another subpoena, as you requested. And the subpoena will strictly comply with the statute, as you requested.
That statute allows a subpoena to “direct that the witness bring [something] and produce it in court,” but does not provide for documents to be produced otherwise, as with a business-records affidavit. So I won’t bother offering your client that out.
The statute also requires that the witness summoned to court remain there “on [every] day subsequent thereto and before the final disposition or continuance of the particular case in which he is a witness.”
So if you’re Shannon Kackley you’ve just helped your client avoid producing documents with a business records affidavit, but signed your client’s custodian of record up to come to court and stay there (on your client’s dime) perhaps for the duration of the trial.
As I wrote to Kackley in my response:
Well done, counselor.