This activity has been approved for Minimum Continuing Legal Education self-study credit by the State Bar of California in the amount of one (1) hour of Ethics Credit for Attorneys and Paralegal Staff. The San Joaquin County Bar Association certifies that these activities conform to the standards for approved education activities prescribed by the rules and regulations of the State Bar of California governing minimum continuing legal education.
In California, client papers and property belong to the client, not to the attorney.1 In most cases, a client may discharge an attorney at any time, with or without cause.2 Upon termination of the attorney's employment, the attorney must, at the former client's request, promptly release "client papers and property" to the former client whether or not the client owes the attorney money.3 Failure to return the client papers and property to a former client when requested is a violation for which an attorney may be disciplined.4
Although these rules seem straightforward enough, complications arise when attempting to apply these rules in a criminal case. One issue is that clients frequently demand that sensitive documents and information be given to them during the course of the representation. This is an issue because our ethical obligations to disclose file materials to clients while a representation is ongoing is not always clear, and there are often factors that contraindicate disclosure of certain file materials to a client while a representation is ongoing. A related problem is that criminal cases present information and physical security issues that are not usually present in civil cases.
Several issues regarding file disclosure and handling arise in criminal cases after the termination of representation in criminal cases, which have considerations that differ from those in civil case representations.
In this article, we will deal with the issues of disclosure of file information to clients during the course of ongoing representation in a criminal matter. This issue can come up a few contexts, so this paper will explore the following issues:
A future article will deal with the related issues of how to handle file information after the termination of representation.
I. To What Extent Must a Lawyer Release a File to a Client During an Ongoing Representation?
The ethics rules and guidance regarding the release of files to a client deal with former clients upon the termination of representation by the attorney. There is much less guidance when the representation continues. This is unfortunate, as criminal attorneys are routinely asked to copy and release file materials to their clients. In particular, clients are usually interested in what they call "discovery packets," by which they mean the police reports in the case. The clients want their "discovery packets" for different reasons, and they are often very eager to get them. In some cases, it is quite helpful for clients to have copies of their discovery, and in other cases it can be extremely damaging to the case. The attorney must thus decide whether to release any documents to the client, and if the attorney decides to release documents, he or she must decide what information to release.
Should the Lawyer Release Documents to the Existing Client?
In an existing representation, a lawyer must "respond promptly to reasonable status inquiries of clients and to keep clients reasonably informed of significant developments in matters"5 relating to the representation. Although the client owns the file, the attorney must normally keep the file in order to represent the client competently and prevent harm to the client.6 The general rule put forth by the American Bar Association (ABA) on how to respond to document requests from existing clients "[d]uring a representation, defense counsel should provide the client with the client's file upon request, even if fees or costs are disputed or unpaid in whole or in part."7
The rule that a client's file should be turned over to a client upon request is not a hard and fast one, and sometimes it is better not to do so when release of a file to a client is likely to prejudice the client's case.8 For example, if a client's jail-mates read the client's file they may claim that the client confessed information from the file to them, and try to make deals for themselves with the prosecution at the expense of the client. This is sometimes a significant problem. The author experienced this with a murder client who insisted on having copies of the discovery given to him. One of his jail-mates read the paperwork and decided to contact the District Attorney's Office to better his situation at the expense of the client. This was not good for my client's case, and forced my office to conflict out of both his case and that of his jailmate. This concern can be sufficient to justify an attorney refusing to release police reports to an incarcerated client even when the client demands them.9 Another issue is that possession of the police reports seem to induce some clients to communicate things in letters (which are frequently intercepted and copied by the authorities) or jail telephone calls (which are routinely recorded) which can be extremely harmful to their cases.
Nevertheless, as the ABA standard suggests, the decision to withhold the police reports from the client should be the exception and not the rule. It seems unwise to withhold file material from a client unless there is The ethical obligation to disclose file materials to clients while a representation is ongoing is not always clear, and there are often factors that contraindicate disclosure of certain file materials to a client while a representation is ongoing. a clear, articulable case-related reason for doing so. Although the decision not to release the police reports to a client may benefit the client, it can seriously strain the attorney-client relationship. Where concerns about the risks of providing documents to the client exist, it may be fruitful to firmly warn the client of the dangers of having the police reports and try to talk them out of it. If the client insists, however, it would seem prudent, in most cases, copying the reports for them notwithstanding the dangers. It is best to treat adults as adults, and the ABA standard suggests that it is up to the client whether he or she wishes to assume the risk of having the documents.
What Information Should the Lawyer Release to a Current Client?
Once the attorney makes the decision to release requested documents to an existing client, the attorney must then decide what to release to the client. In this, the attorney must be careful, as the attorney cannot release everything that is in the file to the client. As noted by the ABA standards, not everything in defense counsel's files on a matter is the client's, and the definition of the contents of "the client's file" may vary among jurisdictions. Original documents and property delivered to the attorney by the client are part of the client's file, as are correspondence and court filings in the client's matter.10
In a criminal case, usually the part of the file of most interest to the client is the police reports. There is nothing forbidding defense attorneys from releasing these reports to the defendant (either during the representation or afterward), but in California we cannot include the address or telephone number of any witness in any document discovered to us by the prosecutor. That is, we must redact this information out of the reports prior to releasing the documents to the defendant.11 If we fail to do so, we commit a misdemeanor.12 Even should the client choose to represent himself, the addresses and telephone numbers of witnesses may not be disclosed to the client. Rather, the court must appoint a qualified private investigator to help the self-represented defendant and order that witness contact information be released only to that investigator.13
Whether Penal Code section 1054.2's requirement that addresses and phone numbers be redacted be taken to imply that nothing else should be redacted,14 or alternatively whether it is to be interpreted as expressive of a policy of protecting certain kinds of information, seems to be a matter of professional judgment, as there is no specific guidance on the matter. The latter view appears more sensible to the author. One indication that Penal Code section 1054.2 is not a complete statement of what must be redacted is that there are other statutes that require additional redactions prior to turning over file information to a client. We are, for instance, required to redact juror names,15 and can be required to redact sex offense victims' names and personal information.16
Another indication is that the requirement that names and addresses of witnesses provided to us by the prosecution not be further disclosed to our clients was explicitly intended to protect the witnesses.17 The policy considerations that are being balanced are, on the one hand, ensuring that the client is sufficiently informed as to the issues in the case so that the client can meaningfully participate in the representation18 and, on the other, the protection of witness personal information. Witness personal information includes more than just addresses and phone numbers, but also birth dates, Social Security number, driver's license numbers, financial information, and medical information. That such information is worthy of protection has been recognized in California courts. Until it was amended in 2017, the California Rules of Court explicitly forbid attorneys to file documents in court without first redacting Social Security numbers and financial information.19 Court policy still requires protection and non-disclosure of that, and other, personal information to the public.20 Moreover, the courts in California have a policy requiring redaction of identifying information of minors, including their full names.21
Furthermore, disclosure of witness medical information to a client would seem to be inconsistent with the privacy concerns of the Health Insurance Portability and Accountability Act of 1996 (HIPAA).22 As this kind of witness personal information is legally protected, and not usually helpful for the client to know in order to meaningfully participate in the representation, it seems that the balancing of interests weighs strongly in favor of withholding or redacting this kind of information in documents given directly to clients. The North Carolina State Bar opined that "[t]he lawyer may redact or otherwise remove information that the lawyer determines, in his professional judgment, should not be disclosed to the client."23
In addition, when deciding what material is appropriate to release to the client, format is important. In general, file material in an electronic format is treated in the same manner as paper file material.24 However, the lawyer "must consider the client's access to technology and comfort with it, as well as the ability of the client to comprehend the nature of the information provided by the attorney."25 The attorney should also consider the client's actual need for the material.26 In modern discovery practice, much of the data will be in electronic form such as audio and video files that require special software to run, raw data from DNA tests or medical procedures that can only be run with special software, data dumps from insurance companies, and the like. Discovery of this type is commonly provided by the prosecutor on CD-Rs, DVDRs, and flash drives. Although clients who are in custody sometimes ask for this material, it is not appropriate to release it to them. They do not have access to the computers necessary to make use of the information, and the jail authorities will not allow the client to keep discs and flash drives. An attorney providing this kind of discovery to an in-custody client will likely be violating the jail's security rules.27 Even for out-of-custody clients, many kinds of electronic discovery, such as Mobile Video/ Audio Recording Systems (MVARS) files and police body camera videos are often subject to protective orders, so it is wise for an attorney to be aware of the terms of such orders before releasing these to a client. Also, recorded interviews of witnesses frequently contain material which we may on not release to the clients under Penal Code section 1054.2 and other sources of authority. The programs that play these recordings often have protections against tampering with the evidence, which prevents any convenient method of redacting this information out of the recordings. These issues must be kept in mind and accounted for prior to releasing file information to a client in a criminal case.
II. To What Extent Must a Lawyer Release a File to a Client When That Attorney is "Fired" by the Client, but not Relieved by the Court?
As a matter of law, "[i]t has long been recognized in this state the client's power to discharge an attorney, with or without cause, is absolute."28 However, the representation does not end until the court accepts a substitution of attorney or relieves the attorney.29 Additionally, a client's power to discharge an attorney is not absolute in the case of appointed counsel in a criminal case. There are only three ways that a client who has been appointed an attorney can discharge the appointed attorney. The first is to convince the court, in a closed hearing, that the representation by his or her appointed counsel is inadequate, or the client's relationship with the lawyer has deteriorated to such an extent that the lawyer cannot effectively represent the client.30 The second is to have another attorney substitute into the case. The third is for the client to represent him or herself.31 It is not uncommon for a criminal defense client to "fire" the attorney, and perhaps refuse to cooperate with the attorney in the defense of the case, but the attorney is not relieved by the court and remains the attorney of record on the case.
Should the Attorney Release Documents to a Client who has "Fired" the Attorney, but for Whose Case the Attorney has not been Relieved?
When an attorney is discharged by a client but not relieved by the court, the attorney remains as the attorney of record on the case and as such retains the authority to bind the client and the duty to competently represent and prevent harm to the client.32 The attorney also retains the duty to keep the client reasonably informed and promptly reply to requests for information.33 To do so, the attorney must generally keep the file.1 In essence, until relieved by the court, an appointed attorney remains the attorney for all purposes, and so the analysis of whether, and what, to provide to the client in that situation is the same as that for any other existing client.
A caveat, though, is that the attorney must keep the file for purposes of the representation, and not "hide behind the obligation to act competently in order to use the file as leverage against the client."2 As part of the representation, the attorney should also make the file available for inspection by prospective new counsel at all reasonable times.3
In general, an attorney should comply with requests by current clients for copies of file materials unless there is a clearly articulable, case-related reason for not doing so. However, in doing so, counsel must ensure that certain types of information, including personal information related to witnesses and jurors, are redacted from any discovery given to the client. As a practical matter, in criminal cases it is not often possible to disclose certain kinds of discovery, such as audio or video recordings, to the client.
4 Rose v. State Bar (1989) 49 Cal.3d 646, 655; State Bar Formal Opinion 2001-157.
5 Fracasse v. Brent (1972) 6 Cal.3d 784, 790; State Bar Formal Opinion 1994-134.
6 Rule 3-700(D)(1) of the State Bar Rules of Professional Conduct.
7 See Rosenthal v. State Bar (1987) 43 Cal.3d 612, 621-622.
8 Business and Professions Code, section 6068, subdivision (m); Rule 3-500 of the State Bar Rules of Professional Conduct.
9 State Bar Formal Opinion 1994-134.
10 ABA Criminal Justice Standards for the Defense Function, Standard 4-3.11(b)
11 North Carolina State Bar 2013 Formal Opinion 2 lists several circumstances in which a lawyer might reasonably and ethically decide against giving police reports to criminal defense clients during the course of the representation. The guidance in North Carolina is clearer than it is in California. That ethics opinion held that an attorney must keep a client informed and must review some discovery with the client, but "the lawyer is not required to provide the client with a physical copy of the discovery materials during the course of the representation."
12 People v. Taylor (2010) 48 Cal.4th 574, 600.
13 ABA Criminal Justice Standards for the Defense Function, Standard 4-3.11(c).
14 Penal Code § 1054.2, subd. (a)(1).
15 Penal Code § 1054.2, subd. (a)(3).
16 Penal Code § 1054.2, subd. (b).
17 This would be based on the theory of inclusio unius est exclusio alterius. Under that maxim, since the prohibition covers only specific things, it would be implied that disclosure of other kinds of witness information is not prohibited and should not be redacted from police reports before giving them to clients.
18 Code of Civil Procedure § 237.
19 Penal Code § 293; Government Code § 6254, subd. (f)(2).
20 The prohibition on attorneys against releasing witness addresses and phone numbers to clients originated from Proposition 115, the Crime Victims Justice Reform act of 1990, § 23. It was clarified and expanded in the Hayden and Frusetta Witness Protection Act of 1997 (AB 207) 1997 CA.Stats. ch 498.
21 ABA Criminal Justice Standards for the Defense Function, Standard 4-3.9(a).
22 Former California Rule of Court, Rule 1.20, subd. (b).
23 See California Rules of Court, Rule 5.503, subd. (e)(2).
24 California Style Manual (4th ed., 2000) § 5.9 et seq.
25 110 Stat. 1936.
26 North Carolina State Bar Formal Opinion 2013-2.
27 Orange County Bar Association Formal Opinion 2005-01.
28 Orange County Bar Association Formal Opinion 2005-01, citing Maine Board of Overseers of Bar Ethics Opinion 183 (2004).
29 Orange County Bar Association Formal Opinion 2005-01.
30 Usually, the way that video and audio discovery is shared with a client is by going to the jail and playing the files on a computer. In San Joaquin County, the jail does not provide such computers so the attorney must bring a laptop. Currently, the jail will only allow the laptop into the jail if jail officials confirm that the laptop does not pick up wi-fi signals.
31 Fracasse v. Brent (1972) 6 Cal.3d 784, 790.
32 Code of Civil Procedure § 284.
33 People v. Marsden (1970) 2 Cal.3d 118. There are many published decisions regarding the bases for granting or denying Marsden motions, which are beyond the scope of this article.
34 Faretta v. California (1975) 422 U.S. 806.
35 State Bar Formal Opinion 1994-134.
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