Can a criminal defense lawyer give the defendant client a copy of the prosecution's discovery materials?

Plain-English summary

A lawyer representing a felony defendant receives discovery from the prosecutor (police reports, witness statements, scientific test results, and similar materials). The defendant asks for copies. The lawyer shows the discovery to the defendant but declines to hand over copies, citing Illinois Supreme Court Rule 415(c). The question is whether refusing to provide copies conflicts with the lawyer's duty to communicate with and inform the client.

The opinion holds there is no conflict. Supreme Court Rule 415(c) requires that discovery materials furnished to an attorney "remain in his exclusive custody and be used only for the purposes of conducting his side of the case." The committee notes the rule's purpose, drawn from the Committee Comments, is to prevent pretrial discovery from becoming publicly available, which would prejudice the administration of criminal justice. Comment [7] to Rule 1.4 expressly recognizes that court rules may bar a lawyer from disclosing certain information to the client.

The committee points to Illinois case law upholding Rule 415(c) against constitutional challenge: People v. Savage, People v. Davison, and People v. Shores all held that keeping discovery in counsel's exclusive custody does not violate equal protection or due process, and that whether to show a defendant the materials is the attorney's strategic decision.

At the same time, Rule 1.4 requires the lawyer to keep the client reasonably informed. Citing Virginia Legal Ethics Opinion 1864 (2012), the committee concludes that the lawyer satisfies Rule 1.4 by showing the documents to the client and discussing the facts, such as by reading the discovery to the client or letting the client read it in the lawyer's presence. The opinion notes the lawyer may redact witness addresses and phone numbers where the lawyer believes disclosure could lead to bodily harm, intimidation, or harassment.

In practice

Under this opinion, an Illinois criminal defense lawyer subject to Supreme Court Rule 415(c) may not provide the defendant a copy of discovery, even on the defendant's request, but must still review the discovery with the defendant under Rule 1.4 so the client is informed enough to assist in the defense and make informed decisions. The opinion notes that charging documents and pleadings filed with the court fall outside the discovery rules and may be given to the defendant (citing ISBA Opinion 94-13).

Common questions

Q: Can I give my criminal defendant client a copy of the State's discovery in Illinois?

A: No. The opinion concludes that Supreme Court Rule 415(c) requires the materials to stay in the lawyer's exclusive custody, so the lawyer may not furnish copies to the defendant even when the defendant requests them.

Q: Does refusing to hand over copies violate my duty to keep the client informed?

A: No. The opinion holds that Rule 1.4 is satisfied by reviewing and discussing the discovery with the client (reading it aloud or letting the client read it in the lawyer's presence), so there is no conflict between Rule 415(c) and Rule 1.4.

Q: Can I redact information before showing discovery to the defendant?

A: Per the opinion, a lawyer may redact witness addresses and phone numbers where the lawyer believes disclosure could result in great bodily harm to a witness or in witness intimidation or harassment.

Background and rules framework

The opinion interprets Illinois Rule of Professional Conduct 1.4 (Model Rule 1.4) on communication with the client, read together with Illinois Supreme Court Rule 415(c), which governs custody of criminal discovery materials. Comment [7] to Rule 1.4 ties the two together by recognizing that litigation rules or court orders may limit what a lawyer can disclose to a client.

Citations and references

Rules of Professional Conduct:

• Illinois RPC 1.4 (Model Rule 1.4): communication with the client

Court rules:

• Illinois Supreme Court Rule 415(c): exclusive custody of criminal discovery materials

Cases:

• People v. Savage, 361 Ill. App. 3d 750, 838 N.E.2d 247 (4th Dist. 2005), upholding Rule 415(c) against equal-protection challenge
• People v. Davison, 292 Ill. App. 3d 981, 686 N.E.2d 1231 (4th Dist. 1997), no constitutional right to read discovery
• People v. Shores, 2012 IL App (5th) 100196, 975 N.E.2d 774, no due-process violation in withholding copies
• People v. Mena, 337 Ill. App. 3d 868, 792 N.E.2d 790 (1st Dist. 2003), Rule 1.4 duty to keep client informed

Other opinions cited:

• ISBA Opinion 94-13 (January 1995): charging documents and pleadings are outside the discovery rules
• Virginia Legal Ethics Opinion 1864 (2012): showing and discussing discovery satisfies the duty to inform

See also

• ISBA Ethics Op. 12-06: Maintenance of Client Files and Records
• ISBA Ethics Op. 13-05: Client's Submission of False Evidence to a Tribunal
• NY State Bar Op. 1070: Joint Clients, Confidentiality and File Access

Source

• Landing page: https://www.isba.org/ethics/opinions/1310