For the last 6 years, I have been dealing with a health insurance claim for my wife’s hip operation in Thailand in January 2020. We were insured by Blue Shield of California at the time which is an administrator for my employer’s health care program at the time, the California Public Employees Retirement System (CALPERS). The policy Blue Shield administered included coverage for global emergency and urgent health care needs. In November 2019, Blue Shield pre-approved an operation on my wife’s hip because she could barely walk, and agreed the condition was considered urgent. In January 2020, they changed their mind about the urgency of the operation without telling us, and refused to pay for the operation. We were out the $19,000. We of course appealed. Indeed we apipealed “to the top” over the next 2-3 years, each time losing our case. A problem for us was that Blue Shield refused to grant us access to our records, “without a subpoena.”
In a formal court case, the parties have the right to compel the production of evidence by issuing a subpoena. This is done during the period for “discovery” before trial and is issued by the court on our behalf. At that time, I asked the attorney from CALPERS to check with Ms. Scott about producing the records, but she ignored him too. Blue Shield ignored my requests for information about our case, including our own case records, so I wrote up a subpoena, and issued it to the General Counsel of Blue Shield of California, Ms. Hope Scott, who was “custodian of the records.” When our case came to trial, no attorney from Blue Shield showed up, and the judge told us that the CALPERS lawyer would represent Blue Shield. As for the subpoena, it was asserted that I had not followed procedures that were not in the instruction, so Ms. Scott was within her rights ignore the subpoena. Indeed she did not even send a Blue Shield represenative to the trial.
To make a long story shorter, I ended up filing an ethics complaint with the California State Bar saying that Ms. Scott ignoring me was showing “disinterest” as described Rule 4.3 of the Code of Ethics of the American Bar Association, and California Bar Association. After two years, the lawyers at the California Bar Association said that it was really no big deal to ignore a subpoena, and that in effect lawyers ignoring a subpoena from a non-lawyer are cool and ethical. In essence, the capacity to ask for information from Blue Shield is the prerogative of lawyers who have been given a $5,000 retaining fee, and that people representing themselves like I did, should not even try.
The good news of course is that in the end I actually got our $19,000 back despite a court ruling in CALPERS/Blue Shield’s favor. The CALPERS Board of Administration (i.e. the Board of Directors), actually kicked the decision back to their legal office, which in turn folded their cards, and Blue Shield wrote out a check. It was enlightening years of “participant observation,” highlighting how the health insurance industry, and the legal profession, seek to protect themselves, and their profits by bulldozing the “participant observers” seeking to “follow the rules.”
This article about article 4(b) of the California Bar Association will be a first one, and a draft is below. The goal of the series I am trying to write will I potentially include the following
–How consumers have the “burden of proof” in the Health Insurance systems, and Blue Shield never had to prove anything.
–“The Door is Always Open” to Appeals—Kafka, and the Health Insurance Appeals process
–Promissory Estoppel, and other big words which can catch the health insurance industry’s attention, maybe.
If anyone has an idea for what professional or academic journals might be interested in this subject, please email me. I am hoping to bring a bit of an ethnographic imagination to the legal community, which is why I am learning (and using) the big words like “Promissory Estoppel” that will help make this possible!
Are Lawyers Required to Respond to Subpoenas from Non-lawyers: Is Rule 4.3 of the ABA Code of Ethics unclear?
By Tony Waters
Professor of Sociology
California State University, Chico (Emeritus)
Leuphana University, Germany
March 2026
This anecdote is meant to be a wake-up call to the legal profession and how it is losing trust in the eyes of the public by seemingly operating by a different set of rules. It involves an insurance claim and how the legal profession protected the custodian of documents (a lawyer), when a subpoena for the key documents was ignored by her. The facts are set forth in more detail below, but briefly, it involves Blue Shield of California which is hired by the California Public Employee Retirement System (CALPERS) to administer health coverage for its members. I, a non-lawyer, represented my wife.
Briefly, a claim for a hip replacement in Thailand was initially approved by Blue Shield as “urgent,” but then subsequently denied after the operation was performed. In the course of appealing the denial, a subpoena for production of documents was served on a Blue Shield lawyer, who ignored it.
In this context, this note is about the responsibility that a lawyer may have (or not) to a non-lawyer, as specified in Rule 4.3 of the ABA/CBA Code of Ethics with respect to subpoenas.
The Trial and Subpoena
The denial of our claim was appealed to the California Public Employee Retirement System, which in turn referred the case to the California Administrative Law Court. Taking the case to trial in April 2022 meant a right to discovery and subpoena. Since Blue Shield ignored requests for records the first time, a subpoena was served on Blue Shield in December 2021. Blue Shield’s General Counsel signed for the subpoena, and then ignored it.
At trial, Blue Shield was represented by the CALPERS attorney, and I, a non-lawyer, represented myself on behalf of my wife. When it was brought to the court’s attention that the subpoenaed records had not been produced by Blue Shield, the Administrative Law Court said that the served subpoena by itself was not enough to compel production of the requested documents, or even a response from the lawyer served with the subpoena. The judge told me that for the subpoena to have become enforceable, it would have been necessary for me to request from the court some further type of document, perhaps an order to compel. Anyway such rules were not specified in the paperwork I received before serving the subpoena, and, of course is something a non-lawyer would not be aware.
As a side note, further appeal to the CALPERS Board of Administration resulted in the case being returned to the Administrative Law Court, at which point the CALPERS attorney, representing Blue Shield, negotiated to have the full amount of $19,000 reimbursed to us. We were told verbally that this reimbursement was made by Blue Shield, “as a courtesy to CALPERS.”
The Ethics of Dealing with Non-Lawyers
The California State Bar Code of Ethics includes Section 4.3, which is an adaptation of the ABA code of ethics, as amended in 1983. The California State Supreme Court adopted the new standard in 2018. Section 4.3(a) emphasizes that when dealing with a person unrepresented by counsel, the attorney shall not offer legal advice to a potential opponent. Here is the relevant part of the rule.
“[A] lawyer shall not state or imply that the lawyer is disinterested. When the lawyer knows* or reasonably should know* that the unrepresented person* incorrectly believes* the lawyer is disinterested in the matter, the lawyer shall make reasonable* efforts to correct the misunderstanding.”
The subsequent bar complaint revolved around the term “disinterested”. Does Section 4.3(a) refer only to a potential “conflict of interest.” Or is a second reasonable reading of this rule, which is that a lawyer is prohibited from ignoring an unrepresented person, i.e. feigning “disinterest” in the question asked by the non-lawyer?
It is my contention that the Blue Shield General counsel expressed “disinterest” by ignoring the subpoena altogether and then taking advantage of the fact that a non-lawyer is unlikely to realize that pre-trial follow-ups with the court are necessary to enforce subpoenas, even those which have been lawfully served. On this basis, an ethics complaint was filed with the California State Bar in August 2023. In September 2025, the Compliance Review Unit (CRU) of the California State Bar asserted that “These allegations are insufficient for disciplinary action.”
The Legal Case
At this point, more facts are required. My wife in November 2019, was scheduled for a hip replacement operation in Thailand, where I was working at the time. Important to this case is the fact that Blue Shield of California approved the operation as “urgent” in November 2019, and surgery was approved for a four-day window in December, 2019. The surgery was delayed until January 2020 due to medical reasons (an infection), and the availability of the surgeon. Blue Shield was informed, and I received a response that we would need to “pay for the surgery and then apply for reimbursement from Blue Shield.” A reimbursement for $19,000 was requested in February 2020. The reimbursement was subsequently rejected as not covered because it was not urgent, despite the previous assurance in November 2019.
Appeals were filed with the Blue Shield Grievance office, and the Blue Shield doctor who, it seems in hindsight, ruled that the surgery was not urgent despite the initial finding that it was. Appeals were made to the California Department of Managed Health Care (DMHC) which sided with Blue Shield. A second appeal was made to CALPERS grievance process, which ruled in Blue Shield’s favor, but also referred the case to the Administrative Law Court. At the time of appeal to both DMHC, and CALPERS, requests were made of Blue Shield to release the documents which led to conclusion in November 2019 to approve reimbursement for the surgery as urgent or emergent, and the apparent reversal of the decision in February 2020 after I had paid the bill for the surgery. I was informed verbally by Blue Shield staff that the records from the case were available only if a subpoena were issued.
The referral by CALPERS to the Administrative Law Court meant that I could subpoena my wife’s records, and in December 2021, I sent a subpoena to the General Counsel of Blue Shield, as custodian of the records, requesting the records regarding our claim. She was duly served, and signed evidence of service which was returned to me and submitted to the court record. I had contact with the attorney for CALPERS, and requested that he check on whether there would be a response from Blue Shield. He told me that they did not respond. The Blue Shield General counsel then did not respond to the subpoena, and did not send Blue Shield counsel to the trial. In this context, I was led to believe by the judge that the CALPERS attorney was representing Blue Shield at trial. In other words, In other words, Blue Shield’s General counsel either intentionally or negligently ignored the subpoena, but ignore it she did.
On April, 2022, court was held via Zoom. My wife and I represented ourselves in court. CALPERS was represented by counsel. The judge at several points pointed out to us that since we representing ourselves, deference would be made to our non-lawyer status, which indeed is what Rule 4.3 requires.
In a 17 page decision, the judge ruled in favor of Blue Shield and CALPERS. It was also pointed out that further appeal could be made to the Board of Administration of CALPERS. So we filed another appeal, and after consultation with lawyer friends, cited issues of promissory estoppel, and fraud on the part of Blue Shield. On this basis of this appeal, the Board of Administration referred the case back to the Administrative Law Court. Instead of going back to court, CALPERS asked Blue Shield to pay our claim of $19,000 in full, which they subsequently did in September 2022.
The Ethics Complaint
Rule 4.3 of the CBA is designed to prevent lawyers from misrepresenting themselves as “disinterested” and capable of offering legal advice to potential adversaries. The whole of Rule 4.3 reads
(a) In communicating on behalf of a client with a person* who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. When the lawyer knows* or reasonably should know* that the unrepresented person* incorrectly believes* the lawyer is disinterested in the matter, the lawyer shall make reasonable* efforts to correct the misunderstanding. If the lawyer knows* or reasonably should know* that the interests of the unrepresented person* are in conflict with the interests of the client, the lawyer shall not give legal advice to that person,* except that the lawyer may, but is not required to, advise the person* to secure counsel.
We also alleged that Rule 8.4(d) was violated, which states “It is professional misconduct for a lawyer to: . . .engage in conduct that is prejudicial to the administration of justice.” We argued this because ignoring our subpoena made timely discovery impossible in our case.
Left unaddressed in Rule 4.3 is whether ignoring a communication from a non-lawyer, i.e. silence, communicates “disinterest. “ The California State Bar’s Compliance Review Unit (CRU) decided that failure to produce documents to a non-lawyer was “insufficient for disciplinary action,” and by implication that silence was sufficient “to correct the misunderstanding” that “the interests of the unrepresented person are in conflict with the interests of the client,” which in this case was Blue Shield, the entity for which the subpoena for records was issued.
The Compliance Review Unit of the California Bar Association concluded even if the General Counsel of Blue Shield
“refused to produce documents pursuant to a subpoena and took advantage of you as a non-lawyer by failing to notify you regarding a specific motion. These allegations are insufficient for disciplinary action.”
In other words, the lawyers on the Compliance Review Unit of the California Bar Association did not find the meaning of “disinterest” to include ignoring a subpoena, and therefore the lawyer was under no obligation to correct a misunderstanding by the non-lawyer which ensued. Indeed, the counsel for Blue Shield, the attorney for CALPERS, and the judge were well-aware that I had served the subpoena on Blue Shield, and none indicated that further steps were necessary to enforce the subpoena until it was too late to do so.
Conclusion
What is one to make of this conduct and of this ruling by the Administrative Law Court judge, and the Compliance Review Unit of the California State Bar? One conclusion is that ignoring a subpoena by a non-lawyer is permitted and ethical professional behavior. The other conclusion is that the profession, via the State Bar, protects itself against non-lawyers, even if it is “conduct that is prejudicial to the administration of justice.”
Tony Waters is czar and editor of Ethnography.com. He came to us from the Sociology department at California State University at Chico where he has been a professor since 1996. In 2016 though he suddenly found himself with a new gig at Payap University in northern Thailand where he is on the faculty of the Peace Studies Department. He has also been a guest professor in Germany, and Tanzania. In the past, his main interests have been international development and refugees in Thailand, Tanzania, and California. This reflects a former career in the Peace Corps (Thailand), and refugee camps (Thailand and Tanzania). His books include: Crime and Immigrant Youth (1999), Bureaucratizing the Good Samaritan (2001), The Persistence of Subsistence Agriculture: Life Beneath of the Marketplace (2007), When Killing is a Crime (2007), and Schooling, Bureaucracy, and Childhood: Bureaucratizing the Child (2012). His hobby is trying to learn strange languages–and the mistakes that that implies. Tony is a prolific academic, you can read more of his work at academia.edu.or purchase one (or more!) of his books from Amazon.com.