2013 Formal Ethics Opinion 2: Providing Incarcerated Defendant with Opportunity to Review Discovery Materials

Photo Courtesy of the North Carolina State Bar

View the Formal Ethics Opinion in Full Here.

The Ethics Committee of the North Carolina Bar took an unusual step at its quarterly meeting held on October 24, 2014.  The Committee withdrew a previous opinion, voting instead to adopt an alternative version of the 2013 Formal Ethics Opinion 2.

The opinion examines the issue of whether a criminal defense lawyer must provide a client with the opportunity to review discovery materials pertinent to his or her case.  Rule 1.4 of the North Carolina Rules of Professional Conduct requires a lawyer to “keep a client reasonably informed about the status of a matter” and “promptly comply with reasonable requests for information.”  In criminal cases, compliance with this Rule allows defendants to meaningfully participate in their representation, including decisions as to plea bargains, jury waivers, and whether or not to testify at trial.

In exercising the duties to keep the client reasonably informed and to respond to requests for information, the lawyer must exercise his or her independent judgment in determining whether the client should have an opportunity to review some or all discovery materials.  The lawyer may exercise discretion by choosing to withhold relevant information if he or she determines that disclosure would not be in the best interest of the client’s legal defense.  The lawyer may also withhold information that he or she believes would endanger the safety and welfare of the client or others, would violate a court rule or order, or is subject to a protective order or nondisclosure agreement.