Opinion 2117

I. The Questions Presented
The inquiring lawyer wants to know his ethical obligations with regard to criminal defense practice under the 2005 Amendments to Superior Court Criminal Rules CrR 4.7(h)(3) and the equivalent rule in Courts of Limited Jurisdiction CrRLJ 4.7(g)(3). These rules provide in relevant part:

CrR 4.7(h)(3)
(h) Regulation of Discovery.

(3) Custody of Materials. Any materials furnished to an attorney pursuant to these rules shall remain in the exclusive custody of the attorney and be used only for the purposes of conducting the party`s side of the case, unless otherwise agreed by the parties or ordered by the court, and shall be subject to such other terms and conditions as the parties may agree or the court may provide. Further, a defense attorney shall be permitted to provide a copy of the materials to the defendant after making appropriate redactions which are approved by the prosecuting authority or order of the court.

(g) Regulation of Discovery.

(3) Custody of Materials. Any materials furnished to a lawyer pursuant to these rules shall remain in the exclusive custody of the lawyer and be used only for the purposes of conducting the party`s side of the case, unless otherwise agreed by the parties or ordered by the court, and shall be subject to such other terms and conditions as the parties may agree or the court may provide. Further, a defense lawyer shall be permitted to provide a copy of the materials to the defendant after making appropriate redactions which are approved by the prosecuting authority or order of the court.

The queries from the lawyer in response to these rule changes are:

1. May a retained lawyer condition providing a copy of discovery upon prior payment by the client for the copying cost and the labor of redaction?
2. May a retained lawyer decline a request to produce a copy?
3. May a retained lawyer decline to produce a copy of the discovery for a client or condition its production upon the payment of the cost by the client if the client’s request for the copy comes after the criminal case has been completed?
4. Is the answer to any of these questions different in appointed cases where a government entity is paying the lawyers to represent an indigent defendant?

II. Analysis

The Rules of Professional Conduct Committee does not interpret or analyze rules other than the Rules of Professional Conduct. We can not express opinions on the application of the Criminal Rule cites generally. Assuming that the lawyer representing the client determines that either the discovery or unredacted portions of it are required to be turned over to the client in order to adequately represent the client, the Committee believes that the application of WRPC 1.4, 1.5, 1.6, and 1.15 do provide an answer to the questions submitted.

WRPC 1.4 requires adequate communication for the client to make informed decisions about the case pursuant to WRPC 1.2 and to facilitate the representation of the client in the defense of a criminal case. WRPC 1.5 provides the standards applicable for reasonable fees including payment of costs for copying and related expenses as interpreted in the Washington State Bar Association’s Formal Opinion 181. WRPC 1.6 requires that the attorney maintain confidences and secrets required during the representation and has a corollary duty not to use confidences or secrets to the disadvantage of the client including withholding relevant information which the client needs to have for the client’s purposes. WRPC 1.15 provides the standards for withdrawal, either during the course of the representation or at its conclusion. In criminal cases, particularly, the likelihood of the availability of subsequent review by appeal, post-judgment motion and/or personal restraint petitions/habeas corpus requires that a lawyer treat the file consistent with Formal Opinion 181 including material in the file covered by the Criminal Rule Amendments, supra.

Question 4 is where the analysis of the inquirer begins. The relationship of a retained counsel to their client in a criminal case is different than the relationship of an appointed counsel to an indigent client. Retained counsel consistent with WRPC 1.5 may shift the cost of copying any materials in the client’s file, including discovery to the client at the conclusion of the retained lawyer’s representation of the client. See Formal Opinion 181. In order to do so, however, the original fee agreement must contain an express term which informs the client that at the end of representation, copying or duplication costs for the client to obtain their file will be borne by the client. This provision must be entered into at the beginning or shortly after the beginning of the representation under WRPC 1.5. If there is no such provision, the file, in its entirety, belongs to the client, subject only to the limited exceptions contained in the formal opinion and copying cost must be born by the attorney since the original file belongs to the client either upon request or ending of the representation. The premise is that at the beginning of the representation a client who is unhappy with bearing the cost of copying of any materials in their files when they ask for the file at the end of the negotiation, can either negotiate that cost or seek other lawyers who would not impose such a requirement.

Indigents by definition have been determined unable to obtain counsel except at public expense because of their poverty. An appointed counsel, whether done via contract with an appropriate governmental authority to provide indigent services, or by direct appointment on a particular case, is not dealing with a client who has the choice to go out and compete on the open market of attorneys to find a lawyer who will not require the client to pay a fee for the representation. Further, it is unethical for a court-appointed counsel to seek supplemental payment from an indigent they have been assigned to defend. See Disciplinary Decision In Re Discipline of Thomas Earl (See Disciplinary Board proceeding 01-00065, filed Nov. 24, 2003). Once indigence has been determined, the obligation of the attorney who has agreed to accept appointment or assignment of the case is not to impose additional cost upon the indigent.

Assuming the indigent client requires the material referred to in the Criminal Rules, separately imposing a copying cost on the indigent to obtain it, would violate WRPC 1.5, and in some circumstances WRPC 1.4. At the conclusion of representation, whether by completing the agreed representation, by being fired, or by withdrawing, the obligation of the attorney is turn the file over to the client. An indigent in such circumstances cannot be changed a supplemental fee in order to obtain the materials in their files. Such a fee would violate WRPC 1.15 as well as WRPC 1.5.

III. Response

Turning now to the questions submitted by the inquirer:

1. May a lawyer condition providing a copy of the client file upon prior payment by the client for the copying cost and the labor of redaction?

Only if it is a retained case and the retainer agreement contains such a clause entered into at the beginning of representation or shortly thereafter while the client still has an option to consider other representation. For an indigent representation, the answer is no.

2. May a lawyer decline a request from the client or a former client to produce a copy of the file regardless of the cost?

The answer would be “no” subject only to the restrictions of the Criminal Rules, including Cr 4.7 h (3) and CrLJ 4.7 g (3), upon which The Rules of Professional Conduct Committee does not opine as beyond the scope of our authority. Ethically, however, any information necessary to the adequate representation of the client or in the file at the conclusion of the representation must be turned over to the client subject only to other law restrictions, such as the Criminal Rules.

3. Is the answer to any of these case questions different in appointed cases where a government entity is paying the lawyers to represent an indigent defendant?

Lastly, for indigent clients, the obligation to provide adequate compensation to the attorney to cover the necessarily included costs of representation falls upon the attorney and/or the contract or in negotiating the terms of either appointment or contractual payment for providing indigent representation. Attempts by indigent counsel or contractors for indigent services to obtain additional contributions from indigent clients are unethical because such efforts shift the burden of adequate representation and adequate payment to the indigent who has no control and can not pay. It shifts the burden from the attorney who has the obligation to provide competent and ethical representation under WRPC 1.1, 1.2, 1.4, 1.5, and 1.15 to the indigent who has no control over such matters and no choice.