Must a public defender or court-appointed lawyer give an indigent client their file and pay for transcripts of court proceedings?

Plain-English summary

The Committee was asked what a court-appointed attorney or public defender must give an indigent criminal defendant: pleadings and court documents, law enforcement reports and discovery, documents the attorney generated or received, and transcripts of court proceedings, along with whether the attorney must pay court reporter costs if the county refuses to.

The Committee split the inquiry into two parts. On the file, it concluded that a lawyer has an ethical duty to turn over the client's file when requested, and that this duty applies equally when the client is an indigent criminal defendant and the lawyer is appointed counsel, relying on prior Opinions 105 and 144. The file, as described, consists of papers and property the client delivered, the end product the lawyer developed, correspondence for the client's benefit, and investigative reports the client paid for; the lawyer's work product is generally not the client's property and need not be delivered.

On transcripts, the Committee assumed the transcripts had not yet been transcribed and addressed the duty to obtain and pay for transcription. It concluded that Rule 1.8(e)(2) permits, but does not require, a lawyer to advance court costs and litigation expenses for an indigent client, so there is no ethical duty to provide the client with a transcript of proceedings. The opinion noted that Section 99-105 of the Mississippi Code addresses preparing the trial record for appeal for an appellant unable to prepay costs. It added that if transcripts had already been obtained for use on the client's behalf and kept in the file, those transcripts would be part of the end product and thus part of the file that must be delivered on request.

Currency note

This opinion was issued in 1996, interpreting the Mississippi Rules of Professional Conduct (adopted effective June 22, 1994, and amended February 5, 1999). Mississippi did not adopt the ABA's 2002 Ethics 2000 revisions wholesale, but subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Does a public defender have to give an indigent client the case file?

A: The opinion concluded that appointed counsel must, on request, provide the original or a copy of the client's file, and that the duty is the same as for any retained lawyer (Opinions 105 and 144).

Q: What counts as part of the client's file?

A: Per the opinion, the file consists of papers and property the client delivered, the end product the lawyer developed, correspondence for the client's benefit, and investigative reports the client paid for. The lawyer's work product is generally not the client's property.

Q: Must the lawyer obtain and pay for transcripts the client wants?

A: No. The opinion concluded that Rule 1.8(e)(2) lets a lawyer advance litigation costs for an indigent client but imposes no affirmative duty to do so, so there is no ethical duty to provide transcripts of proceedings.

Q: What if transcripts were already obtained and kept in the file?

A: The opinion concluded that transcripts obtained for the client's benefit and retained in the file are part of the end product and thus part of the file that must be delivered on request.

Background and rules framework

The opinion interprets Mississippi Rule of Professional Conduct 1.8(e)(2), which corresponds to Model Rule 1.8 and permits a lawyer representing an indigent client to pay court costs and litigation expenses on the client's behalf without an affirmative duty to advance them. The file-return duty is drawn from prior Opinions 105 and 144. The opinion also points to Section 99-105 of the Mississippi Code of 1972 on preparing the appellate record for an appellant unable to prepay costs.

Citations and references

Rules of Professional Conduct (Mississippi; cf. Model Rules):

• MRPC 1.8(e)(2) (advancing court costs and litigation expenses for an indigent client) (cf. Model Rule 1.8)

Statutes:

• Section 99-105, Mississippi Code of 1972, as amended (preparing the trial record for appeal for an appellant unable to prepay costs)

Other opinions cited:

• Mississippi Opinion No. 105 (advance copying costs; cannot condition file release on payment)
• Mississippi Opinion No. 144 (discharged lawyer must deliver the file; work product not the client's property)

See also

• MS Bar Ethics Op. 234: Receipts for Client Files
• MS Bar Ethics Op. 254: How Long to Retain Client Files
• AL Ethics Op. 1992-05: Who Owns the Client's File

Source

• Landing page: https://www.msbar.org/ethics-discipline/ethics-opinions/formal-opinions/236/
• Original PDF: https://www.msbar.org/media/1477/35a_et_op_236.pdf

Original opinion text

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

ETHICS OPINION NO. 236

OF THE MISSISSIPPI BAR

RENDERED September 19, 1996

DUTY OF PUBLIC DEFENDER/APPOINTED COUNSEL TO PROVIDE INDIGENT CLIENT WITH FILE AND TRANSCRIPTS OF PROCEEDINGS: A public defender/appointed counsel must, upon request, provide an indigent client with the original or a copy of the client's file but has not ethical duty to provide the client with transcripts of proceedings.

The Ethics Committee of The Mississippi Bar has been asked to render an opinion as to what duties a court appointed attorney or public defender has in providing the following items to an indigent criminal defendant:

1. Pleadings and any and all court documents.

2. Law enforcement reports and any and all documents relating to discovery.

3. Any and all other documents generated by the attorney or received by the attorney in preparation of the defendant's case.

4. Any and all transcripts of any and all court proceedings whether they are pretrial, trial, or post conviction.

5. Transcripts of proceedings which the attorney deems to be unnecessary in the preparation of defendant's case such as a bond reduction hearing, preliminary hearing, motion hearings, and/or other similar transcripts.

In a related query, if the attorney is required to provide transcripts, is the attorney charged with the responsibility of payment of any and all court reporter costs connected with providing said transcripts if the county refuses to pay these costs because of budgetary concerns or local judiciary guidelines?

The Committee considers the inquiry to be in two parts. First, what is the duty of the appointed attorney or public defender to the indigent criminal defendant client with respect to the client's file and, second, what, if any, duty does the attorney have to provide the client with transcripts of proceedings absent payment by or on behalf of the client for the transcripts?

The Mississippi Bar has previously recognized that a lawyer has an ethical duty to turn over the client's files when requested by the client and a discharged lawyer must

deliver the client file, even if he has not been paid. Opinions No. 105 and 144. It makes no difference that the client is an indigent criminal defendant and the attorney is a public defender or appointed counsel. The duty remains the same.

Generally, the client's file consists of the papers and property delivered him by or caused by the client to be delivered to the lawyer, the pleadings or other end product developed by the lawyer, correspondence engaged in by the lawyer for the benefit of the client, and investigative reports which have been paid for by the client. The lawyer's work product is generally not considered the property of the client, and the lawyer has no ethical obligation to deliver his work product. Opinion 144.

As far as transcripts of proceedings are concerned, the Committee assumes that the transcripts have yet to be transcribed and, thus, the opinion of the Committee relates to the duty of the lawyer to obtain and pay for the transcription. Rule 1.8(e)(2)provides that a lawyer representing an indigent client may pay court costs and expenses of litigation on behalf of the client, however, there is no affirmative duty to advance such costs and expenses of litigation. Therefore, the Committee finds no ethical duty on the part of the attorney to provide the client with a transcript of proceedings. Section 99-105 of the Mississippi Code of 1972, as Amended, makes provisions for preparing the record of the proceedings in a trial court for the purposes of appeal for an appellant who is unable to prepay the costs.

The Committee notes that if, during the course of proceedings copies of transcripts were obtained for use on behalf of the client and retained in the file, then such transcripts would be a part of the end product developed by the lawyer and thus constitute a part of the client's file which should be delivered to the client upon request.