Must a public defender give an indigent client a free copy of the trial transcript for a post-conviction challenge?

Plain-English summary

The opinion answered whether a public defender is ethically obligated to provide indigent clients with copies of transcripts needed to pursue collateral post-conviction remedies, in a situation where the office did not handle those collateral matters but wished to keep the paupered transcript in its file, and where copying would impose a financial burden. The Board held that Standard 22(b) requires the defense attorney to provide copies of the transcript to indigent clients, without cost, whenever necessary to avoid foreseeable prejudice on termination of the representation.

The Board read Standard 22(b), which directs a lawyer not to withdraw without delivering the papers and property to which the client is entitled, in light of its purpose of avoiding prejudice to the client's rights, and treated that purpose as invoked whenever the lawyer-client relationship terminates. It concluded that a paupered transcript is a paper to which the client is entitled, because lacking a transcript can prejudice the assertion of rights in a collateral post-conviction matter, and because the attorney obtained the transcript under a claim of right belonging to the client rather than the attorney.

The Board limited the duty to situations where the client would be prejudiced by the failure to deliver. If an additional copy of the paupered transcript is available to the client from the court, the client may not be prejudiced, and if the lawyer does not have the transcript through no fault of the lawyer's own, there is no obligation to provide it. Citing Advisory Opinion 87-5, the Board reaffirmed that attorneys may keep copies of the file but bear the copying cost absent a prior agreement, and said it would be inconsistent with the public defender relationship to condition release of documents essential to further appeals on payment of copying costs.

Currency note

This opinion was issued in 1993, before the State Bar of Georgia adopted the Georgia Rules of Professional Conduct in 2001, which replaced the Standards of Conduct this opinion construes. The State Bar's headnotes map Standard 21 to Rule 1.16(a), Standard 22 to Rule 1.16, and Standard 22(b) to Rule 1.16(d). Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against the current Rules of Professional Conduct before relying on any specific rule mentioned here.

Common questions

Q: Does a public defender have to give an indigent client a free transcript copy?

A: Yes, under this opinion, whenever the copy is necessary to avoid foreseeable prejudice to the client on termination of the representation, because the paupered transcript is a paper to which the client is entitled.

Q: Can the office charge the indigent client for copying the transcript?

A: No. The opinion said it would be inconsistent with the public defender relationship to condition release of documents essential to further appeals on payment of copying costs; the attorney bears the cost absent a prior agreement.

Q: Are there situations where the lawyer need not provide the transcript?

A: Yes. The opinion said there is no prejudice, and so no duty, if an additional copy is available to the client from the court, and no obligation where the lawyer does not have the transcript through no fault of the lawyer's own.

Background and rules framework

The opinion construed former Standards of Conduct 21 (withdrawal on discharge by the client) and 22, particularly 22(b) (delivering papers and property to which the client is entitled), now associated with Rules 1.16(a), 1.16, and 1.16(d). It applied the purpose of avoiding foreseeable prejudice to a terminated client's rights.

Citations and references

Rules of Professional Conduct:

• MR 1.16 / Ga. RPC 1.16(a), 1.16(d) (declining or terminating representation; protecting client interests; analog to former Standards 21 and 22(b))

Former standards construed:

• Standards of Conduct 21 and 22(b)

Other opinions cited:

• Georgia Formal Advisory Opinion 87-5 (copies and copying costs)
• ABA Informal Opinion 1376
• Michigan Opinion No. CI-926

See also

• GA Ethics Op. 87-5: Assertion of Attorneys' Retaining Liens
• ABA Formal Op. 471: Surrendering the Client File to a Former Client

Source

• Landing page: https://www.gabar.org/handbook?rule=rule493

Original opinion text

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

State Bar of Georgia

Issued by the Supreme Court of Georgia

On November 10, 1993

Formal Advisory Opinion No. 93-4

For references to Standard of Conduct 21, please see Rule 1.16(a) .

For references to Standards of Conduct 22, please see Rule 1.16 .

For references to Standard of Conduct 22(b), please see Rule 1.16(d) .

For an explanation regarding the addition of headnotes to the opinion, click here .

Ethical obligation of criminal defense lawyers to provide indigent clients with copies of transcripts needed to pursue collateral post-conviction remedies.

Standard 22(b) requires a criminal defense attorney to provide copies of transcripts to indigent clients, without cost to the clients, whenever that is necessary to avoid foreseeable prejudice to the clients upon termination of the representation of the clients by the defense attorney.

Correspondent asks if public defenders are ethically obligated to provide indigent clients with copies of transcripts needed to pursue collateral post-conviction remedies. Apparently, the public defender office does not provide representation on collateral post-conviction remedies yet wishes to retain the paupered transcript in its file for its own purposes. Making additional copies of transcripts for indigent clients will impose a financial burden upon the public defender.

Standard 22(b) requires the public defender or any criminal defense attorney to provide copies of transcripts to indigent clients, without cost to the clients, whenever that is necessary to avoid foreseeable prejudice to the client upon termination of the representation of the client by the public defender. Standard 22(b), in its pertinent part, provides:

A lawyer shall not withdraw from employment until he has taken reasonable steps to avoid foreseeable prejudice to the rights of his client, including . . . delivering to the client all papers and property to which the client is entitled. While, by its own terms, Standard 22(b) applies only upon withdrawal, the purpose of Standard 22(b) is invoked whenever there is a termination of a lawyer-client relationship. 1

A paupered transcript is a "paper . . . to which the client is entitled."That phrase must be interpreted in light of the purpose of the Standard which is to avoid prejudice to a client's rights. There can be no doubt that the lack of a transcript can prejudice the assertion of rights by the client in a collateral post-conviction relief matter. In addition, the attorney obtained the paupered transcript under a claim of right which belongs to the client -- not to the attorney. Standard 22(b) obligates attorneys to deliver transcripts and any other court documents which would be useful in the client's pursuit of rights. 2

The obligation created by Standard 22 is limited to those situations in which the client would be prejudiced by the failure to deliver the transcript. If an additional copy of a paupered transcript is available to the client from the court for use in collateral post-conviction proceedings, the client may not be prejudiced by a refusal to deliver the transcript. Whether additional copies of paupered transcripts are or should be available from the court is not a matter for this opinion.

As we stated in Advisory Opinion 87-5, attorneys are entitled to keep copies of papers in their client files, but, absent a prior agreement as to costs, a situation inapplicable here, the attorney bears the cost of copying. 3 It would be completely inconsistent with the nature of the relationship between the public defender or other defense counsel and the indigent criminal defendant to condition release of documents essential to further appeals upon the payment of costs of copying.

In cases where the criminal defense lawyer does not have the transcript available through no fault of his own, he has no obligation to provide it.

1 Standard 21 makes the withdrawal rules applicable to cases of discharge by the client as well:

"A lawyer representing a client before a tribunal, with its permission if required by its rules, shall withdraw from employment and a lawyer representing a client in other matters shall withdraw from employment, if he is discharged by his client."

2 In accord, ABA Informal Opinion 1376.

3 In accord, Michigan Opin. No. CI-926.