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 [...]