Posted on
January 30, 2015 in
Some lawyers are reportedly interpreting Ethics Opinion 646 to mean that they can give their clients copies of discovery produced under Article 39.14 of the Texas Code of Criminal Procedure, despite Article 39.14(f)‘s admonition that:
The attorney representing the defendant, or an investigator, expert, consulting legal counsel, or agent for the attorney representing the defendant, may allow a defendant, witness, or prospective witness to view the information provided under this article, but may not allow that person to have copies of the information provided, other than a copy of the witness’s own statement. Before allowing that person to view a document or the witness statement of another under this subsection, the person possessing the information shall redact the address, telephone number, driver’s license number, social security number, date of birth, and any bank account or other identifying numbers contained in the document or witness statement. For purposes of this section, the defendant may not be the agent for the attorney representing the defendant.
39.14(f) is the law. Ethics Opinion 646 doesn’t change that, and the opinion really couldn’t be more clear:
Because article 39.14 requires an “open file” policy by prosecutors without pre-conditions, prosecutors would violate Rule 8.04(a)(12) if they refused to produce and permit the inspection of their file in accordance with the provisions of article 39.14 unless defense lawyers first agreed to waive certain rights of their clients. Under article 39.14—and, therefore, under Rule 8.04(a)(12)—prosecutors are required to produce and permit the inspection of their files, subject only to the limitations set forth in article 39.14. Thus, prosecutors would violate Rule 8.04(a)(12) if they attempted to impose conditions not found in article 39.14 before making the required disclosures.
The committee concludes that the Michael Morton Act has rendered Opinion 619 obsolete because the act requires an “open file” policy by all Texas prosecutors without requiring defendants or their lawyers to agree to any restrictions on their use of materials in the file except as provided in the act.
There are whiny chickenshit prosecutors who are cruising for examples of defense lawyers violating the Michael Morton Act, so that they can get their tame scared-white-republican legislators to shove through changes.
Don’t be that guy who gives his clients copies of offense reports and screws up discovery for the rest of us.
What happens when a client fires his lawyer? Rule 1.15(d) allows an attorney to retain papers relating to a client to the extent permitted by other law only if such retention will not prejudice the client in the subject matter of the representation. But In Re Patrick McCann (CCA 2013) seems to reaffirm the principle that an attorney’s client file is owned by the client.
So, in this scenario, if the client requests his file, can the attorney give the client everything in the file (except for 39.14 materials) and only release them to the next attorney? Should the attorney retain the 39.14 materials and force the new attorney to obtain them on his or her own? Does anyone know if this issue has come up yet?
It has come up; I don’t think it’s been tested.
The best answer I’ve been able to come up with is for the lawyer to give the client those parts of the file that 39.14 allows, and give the 39.14 portions to successor counsel only after successor counsel acknowledges that 39.14(f) applies.