New Ethics Opinion on Incarcerated Defendants’ Right to Review Discovery

Many criminal defense lawyers are reluctant to give incarcerated clients copies of discovery materials. Lawyers may worry that the materials will be stolen by other inmates, who will then use the information in the materials to bolster false claims that the defendant confessed to them. And lawyers may believe that certain clients simply should not have access to certain materials, such as the addresses and phone numbers of witnesses or alleged victims. But what if a client insists on having a copy of discovery materials? A new State Bar ethics opinion addresses this issue.

The inquiry. The Bar received the following inquiry:

Lawyer represents Defendant in a criminal case. The state has provided Lawyer with discovery as PDF files [and audio and video recordings].

Lawyer reviewed the discovery and provided Defendant with a summary of the evidence. Defendant demands that he be provided a copy of the entire 1,200 pages of discovery and be allowed to view/listen to the 17 hours of video and audio recordings.

Does Lawyer have an ethical duty to comply with the client’s demand?

The ruling. The Bar began by noting that a lawyer has an ethical duty to keep a client “reasonably informed about the status of a matter.” Rule 1.4. It stated that the duty normally may be discharged by “providing the client with a summary of the discovery materials and consulting with the client as to the relevance of the materials to the client’s case.”

However, the Bar ruled, upon the client’s request, a lawyer must allow the client

the opportunity to meaningfully review relevant discovery material unless one or more of the following conditions exist: (1) the lawyer believes it is in the best interest of the client’s legal defense to deny the request; (2) a protective order or court rule limiting the discovery materials that may be shown to the defendant or taken to a jail or prison is in effect; (3) such review is prohibited by the specific terms of a discovery agreement between the prosecution and the defense lawyer; (4) because of circumstances beyond the defense counsel’s control, such review is not feasible in light of the volume of discovery materials and the time remaining before trial or before a decision must be made by the client on a plea offer; or (5) disclosure of the discovery materials will endanger the safety or welfare of the client or others.

While some of exceptions appear to be rather elastic, the opinion establishes a clear general rule that a client may insist on seeing or hearing virtually all discovery materials.

The opinion does not require a lawyer to provide the client with a “physical copy” of the materials. Apparently, the lawyer may sit with the client while the client reviews the materials, and then may collect the materials back up. Indeed, in some cases, such as when the client is illiterate or the discovery materials require playback equipment that is not available in the jail, there seems to be little alternative to sitting with the client and reviewing the materials together. While this might be time-consuming, the Bar specifically stated that inconvenience to the lawyer is not a basis for denying a client access to discovery materials. The opinion does not address situations where a lengthy in-person discovery review may overburden a jail’s limited visitation capacity.

In other instances, providing a physical copy may be the most practical way to comply with a client’s request. IDS, which generally will not pay for the printing of digital discovery, will do so if necessary to satisfy a client’s request for discovery. (See page 8 of this IDS memorandum.) In some cases, it may be necessary to consider a jail’s personal property rules when deciding whether providing an inmate with a physical copy is of discovery materials is feasible.

Other jurisdictions. Jurisdictions seem to vary considerably in their approach to this issue. Some presume that a defendant is entitled to review discovery materials, subject to exceptions and limitations. See, e.g., Johnson v. United States, 2014 WL 295157 (D.S.C. Jan. 27, 2014) (stating that “[w]hile a defendant generally has a right to review the discovery materials that will be used against him at trial . . . it is not improper to restrain counsel from leaving discovery materials with the [defendant] in jail to safeguard the material contained therein”). Others generally prohibit represented defendants from receiving discovery materials. See, e.g., People v. Savage, 838 N.E.2d 247 (Ill. Ct. App. 2005) (noting that by rule, Illinois prohibits defense attorneys from providing copies of discovery materials to their clients, and rejecting several legal challenges to that rule). See also this post about a similar rule in Connecticut. The new North Carolina rule leans more towards giving the defendant access to discovery than do most other states.

Redaction. In response to a related inquiry about the propriety of redacting information such as “the address of a witness or pictures of an alleged rape victim,” the Bar ruled that a lawyer could use his or her “professional judgment” to determine the necessity of such redactions.

Your thoughts. This ethics opinion attracted considerable attention as it moved through the State Bar, with smart lawyers disagreeing about how this issue should be addressed. Readers, what do you think of the final opinion? Does it strike the right balance? Will it affect your practice significantly? How feasible is it to leave voluminous paper discovery with incarcerated clients? Do the exceptions swallow the rule? If the file belongs to the client and the client can demand the file at the conclusion of the case under Rule 1.16 and CPR 3, does it make sense that an incarcerated defendant can’t have all the contents of the file while the case is ongoing?