Must a North Carolina criminal defense lawyer give the client copies of all discovery or let the incarcerated client review it?

Plain-English summary

The inquiry involves a defense lawyer who reviewed roughly 1,200 pages of discovery plus 17 hours of video and audio recordings, gave the client a summary, and then faced the client's demand for copies of everything and the chance to view and listen to all of it. On Inquiry #1, the opinion ties the duty to Rule 1.4, which requires keeping the client reasonably informed and promptly complying with reasonable requests for information. Citing Comment [5], it states the guiding principle is to fulfill reasonable client expectations for information consistent with the client's best interests, and it analogizes to ABA Standards for Criminal Justice, Defense Function, Standard 4-3.8. Because Rule 1.2(a)(1) gives the criminal client authority to decide the plea, whether to waive a jury trial, and whether to testify, the lawyer keeps the client reasonably informed by providing a summary and consulting about the relevance of the materials to those decisions.

If, after that, the client requests copies of or asks to review file materials, the opinion concludes the duty to comply with reasonable requests requires the lawyer to afford a meaningful opportunity to review relevant discovery, unless one or more conditions exist: the lawyer believes denial is in the best interest of the client's legal defense; a protective order or court rule limits what may be shown to the defendant or taken into a jail or prison; a discovery agreement between the prosecution and defense prohibits it; review is not feasible given the volume of materials and the time before trial or a plea decision; or disclosure would endanger the safety or welfare of the client or others. The lawyer exercises independent professional judgment about relevance and best interest, but under Comment [7] may not withhold information to serve the lawyer's own interest or convenience, so expense or inconvenience is not a permissible basis to deny the request.

On Inquiry #2, the opinion concludes the lawyer may redact or remove a third person's private information, such as a witness's address or pictures of an alleged victim, where the lawyer's professional judgment supports withholding it, including information that would endanger safety or is subject to a protective order, court rule, or nondisclosure agreement.

In practice

Under the North Carolina rules as they stood at the time of the opinion, conduct in which a defense lawyer refuses a client's reasonable request to review relevant discovery is not permitted absent a listed justification; the opinion holds that Rule 1.4 entitles the client to a meaningful opportunity to review relevant materials, while leaving the choice of providing physical copies to the lawyer. Per the opinion, the analysis turns on the lawyer's independent judgment about relevance and the client's best interest, framed by the decisions Rule 1.2(a)(1) reserves to the client: the plea, jury-trial waiver, and whether to testify.

The opinion sets one firm boundary: under Comment [7] to Rule 1.4 the lawyer may not deny access to serve the lawyer's own interest or convenience, so expense and inconvenience are not valid reasons. It also permits the lawyer to redact a third person's private information where professional judgment, a protective order, a court rule, or an agreement supports withholding it.

Common questions

Q: Does a North Carolina defense lawyer have to give the client copies of all the discovery?

A: No. Opinion #1 says that regardless of whether the client should be allowed to review some or all of the materials, the lawyer is not required to provide the client with a physical copy of the discovery during the representation.

Q: Can the lawyer just give a summary instead of letting the client review the materials?

A: A summary satisfies Rule 1.4 initially, but Opinion #1 says that if the client still requests to review the materials, the lawyer must afford a meaningful opportunity to review relevant discovery unless one of the listed conditions applies.

Q: When may the lawyer deny the client's request to review discovery?

A: Opinion #1 lists five conditions: the lawyer believes denial is in the best interest of the defense; a protective order or court rule limits disclosure; a discovery agreement prohibits it; review is not feasible given volume and time; or disclosure would endanger the client or others.

Q: Can the lawyer refuse because copying is expensive or inconvenient?

A: No. Opinion #1 relies on Comment [7] to Rule 1.4, which says a lawyer may not withhold information to serve the lawyer's own interest or convenience, so expense or inconvenience is not a permissible basis to deny the request.

Q: May the lawyer redact a witness's address or a victim's photos before sharing materials?

A: Yes. Opinion #2 says the lawyer may redact or remove third-party private information where professional judgment supports it, including information that would endanger safety or that is subject to a protective order, court rule, or nondisclosure agreement.

Background and rules framework

The opinion applies North Carolina Rule 1.4 (communication, the analogue of Model Rule 1.4), which requires keeping a client reasonably informed and promptly complying with reasonable requests for information, and uses Comments [5] and [7] to set the guiding principle and the bar on withholding for the lawyer's own convenience. It reads that duty alongside Rule 1.2(a)(1) (scope of representation, the analogue of Model Rule 1.2), which reserves to the criminal client the decisions on the plea, jury-trial waiver, and whether to testify.

The opinion treats the ABA Standards for Criminal Justice, Defense Function, Standard 4-3.8 (3d ed. 1993) as consistent with the Rule 1.4 duty to keep the client informed and to comply with reasonable requests.

Citations and references

Rules of Professional Conduct:

• MR 1.4 / NC Rule 1.4 (communication; Comments [5], [7])
• MR 1.2 / NC Rule 1.2(a)(1) (decisions reserved to the criminal client)

Other references:

• ABA Standards for Criminal Justice, Defense Function, Standard 4-3.8 (3d ed. 1993): keeping the client informed and complying with reasonable requests for information.

See also

• Alabama Bar Op. 1986-02: Providing Copies of the Client's Complete File
• NY State Bar Op. 1142: Delivering the Client File and Electronic Records
• NY State Bar Op. 1094: Releasing a Client's File

Source

• Landing page: https://www.ncbar.gov/for-lawyers/ethics-and-governing-rules/ethics-opinions/opinions/2013-formal-ethics-opinion-2/

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Inquiry #1:

Lawyer represents Defendant in a criminal case. The state has provided Lawyer with discovery as PDF files. The state has also given Lawyer DVDs containing copies of the video recordings of interrogations of Defendant and a codefendant; surveillance videotapes; and audio recordings of calls made by Defendant and the codefendant from the jail.

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?

Opinion #1:

As a matter of professional responsibility, Rule 1.4 requires a lawyer to “keep a client reasonably informed about the status of a matter” and “promptly comply with reasonable requests for information.” As stated in comment [5] to Rule 1.4:

The client should have sufficient information to participate intelligently in decisions concerning the objectives of the representation and the means by which they are to be pursued...The guiding principle is that the lawyer should fulfill reasonable client expectations for information consistent with the duty to act in the client's best interests, and the client's overall requirements as to the character of representation.

The duties set out in Rule 1.4 are similar to those found in ABA Standards for Criminal Justice, Defense Functions, Standard 4-3.8 (3d ed. 1993) which provides:

(a) Defense counsel should keep the client informed of the developments in the case and the progress of preparing the defense and should promptly comply with reasonable requests for information.

(b) Defense counsel should explain developments in the case to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

Under Rule 1.2(a)(1), the client in a criminal case has the authority to decide, “after consultation with the lawyer, as to a plea to be entered, whether to waive a jury trial, and whether the client will testify.” During the course of the representation, a criminal defense lawyer complies with the requirements of Rule 1.4 to keep a client “reasonably informed” by providing the client with sufficient information to make informed decisions about these important issues. This obligation is fulfilled 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. If the lawyer has provided the client with a summary/explanation of the discovery materials and the client, nonetheless, requests copies of or asks to review any of the file materials, the duty to comply with reasonable requests for information requires the lawyer to afford 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 agreement1 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.

In determining what discovery materials are relevant, and what disclosure is in the best interest of the client’s legal defense, the lawyer must exercise his or her independent professional judgment in the context of the decisions that the defendant must make about what plea to enter, whether to waive jury trial, and whether to testify. See Rule 1.2(a)(1). As noted above: “The guiding principle is that the lawyer should fulfill reasonable client expectations for information consistent with the duty to act in the client's best interests, and the client's overall requirements as to the character of representation.” Rule 1.4, cmt. [5]. However, as stated in comment [7] to Rule 1.4, a lawyer “may not withhold information to serve the lawyer’s own interest or convenience or the interest or convenience of another person.” Therefore, the lawyer may not deny the request due to issues of expense or inconvenience.

Regardless of whether the lawyer determines that the client should have an opportunity to review some or all of the discovery materials, the lawyer is not required to provide the client with a physical copy of the discovery materials during the course of the representation.

Inquiry #2:

If Lawyer provides Defendant with a copy of, or access to, discovery materials, may Lawyer redact or otherwise remove private information of a third person, such as the address of a witness or pictures of an alleged rape victim?

Opinion #2:

The lawyer may redact or otherwise remove information that the lawyer determines, in his professional judgment, should not be disclosed to the client, including information that would endanger the safety and welfare of the client or is subject to a protective order, court rule, or agreement prohibiting disclosure. See Rule 1.4, cmt. [7].

End Notes

• Discovery agreements between the prosecution and the defense may present other ethical concerns not addressed in this opinion.