Providing Defendant with Discovery During Representation [2013 Formal Ethics Opinion 2]
What is the extent of a defense attorney’s responsibility to provide a client with discovery during representation in a criminal matter?
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This opinion was adopted by the State Bar Council at its quarterly meeting in January of 2014. The opinion examines the extent of a defense attorney’s responsibility to provide the client with discovery during representation in a criminal matter. Specifically, the opinion considers whether a defense attorney fulfills this responsibility by providing the client with a summary of the evidence or whether the attorney must provide a complete copy of the discovery.
Citing Rule 1.4, the opinion notes the lawyer’s responsibility to “keep a client reasonably informed about the status of a matter” and “promptly comply with reasonable requests for information.” Based on this responsibility, the opinion concludes that an attorney complies with Rule 1.4 by merely providing a summary of the evidence and discussing the evidence with the client. Where a client specifically requests copies of the discovery material, however, “the lawyer must afford the client the opportunity to meaningfully review all of the relevant discovery material unless the lawyer believes it is in the best interest of the client’s legal defense to deny the request” (emphasis added). Neither inconvenience nor expense excuses a lawyer’s duty to fulfill such requests.
When providing a copy of the discovery material, the attorney may redact or remove information that the lawyer believes should not be disclosed to the client. This includes information that, if disclosed, would endanger the welfare of any individual, violate a court order, or violate a nondisclosure agreement.
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