May a Missouri criminal-defense lawyer agree not to give discovery to the client in exchange for advantageous access?

Plain-English summary

A federal criminal-defense lawyer considered an agreement providing discovery on terms advantageous to the client in exchange for a promise not to give the discovery to the client. Rules 4-1.2(a) and 4-1.4(b) require consultation about that means of pursuing the client's objectives and an explanation sufficient for an informed decision.

Formal Opinion 115 states that the client owns the file, subject to limited exceptions. Rule 4-1.15(d) requires prompt delivery of property the client is entitled to receive except as permitted by law or client agreement, while Rule 4-1.16(d) requires surrender of papers and property on termination to the extent the client is entitled to them.

The opinion leaves unresolved whether other law permits the lawyer to deny a later request for the complete file, including discovery covered by the agreement. It identifies that issue as a question of fact and law outside the Rules of Professional Conduct.

In practice

Under this opinion, the lawyer cannot accept the discovery restriction without informed client consultation. The opinion supplies no independent ethics answer to the separate legal question of whether the restricted discovery may later be withheld.

Common questions

Q: Must the client be consulted before the lawyer enters the agreement?

A: Yes. Rules 4-1.2(a) and 4-1.4(b) require consultation and sufficient explanation for an informed decision.

Q: Does the client generally own the file?

A: Yes. The opinion cites Formal Opinion 115 for that proposition, subject to limited exceptions.

Q: Does this opinion decide whether the discovery can legally be withheld?

A: No. It identifies that as a factual and legal question outside its scope.

Background and rules framework

Rules 4-1.2(a) and 4-1.4(b) govern consultation about the agreement. Rules 4-1.15(d) and 4-1.16(d) govern delivery of client property and the file, subject to law and agreements recognized by those rules.

Citations and references

Rules of Professional Conduct:

• Missouri Rules 4-1.2(a), 4-1.4(b), 4-1.15(d), and 4-1.16(d)
• Missouri Rule 4-1.2 Comment [1]

Other opinions cited:

• Missouri Formal Opinion 115, as amended

See also

• Virginia LEO 1864: Withholding Criminal Discovery from a Client
• Illinois Advisory Op. 13-10: Sharing Discovery with a Criminal Defendant
• Texas Ethics Op. 619: Conditions on Copying Discovery

Source

• Landing page: Missouri Informal Opinion 2020-08

Original opinion text

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

QUESTION: May Attorney representing Client charged with a crime in federal court enter into an agreement by which the prosecutor will provide discovery to Attorney under circumstances advantageous to Client in return for Attorney’s agreement not to turn over discovery to Client?

ANSWER: Attorney must consult with Client about the means by which Client’s objectives for the representation are to be pursued, including whether to enter into a discovery agreement that would prevent Client from obtaining the entire client file. See Rule 4–1.2(a). Attorney should explain the proposed agreement to the extent reasonably necessary to allow Client to make an informed decision. See Rule 4–1.4(b). Comment [1] to Rule 4–1.2 provides guidance that a lawyer is not required to employ particular means in pursuing Client’s objectives simply because a client so directs, and the lawyer should assume responsibility for technical and legal tactical issues while deferring to the client regarding questions such as expense and concern for third persons. The file belongs to the client, with limited exception. Formal Opinion 115, as amended. Rule 4–1.15(d) requires Attorney to deliver promptly to the client any property that the client is entitled to receive, “except as … otherwise permitted by law or by agreement with the client.” Upon termination of the representation, Attorney is obligated to surrender papers and property “to which the client is entitled,” but may “retain papers and property to the extent permitted by other law.” When a discovery agreement is in place, whether other law would permit Attorney to deny a request from Client to obtain the entire file, including discovery, is a question of fact and law outside the scope of the Rules of Professional Conduct.