Must a lawyer who handled an indigent defendant's criminal appeal give the client the State-supplied trial transcript after the appeal ends?

Short answer The opinion concluded that yes, if the client wishes it, the lawyer must turn over the transcript, because the right to the transcript belongs to the defendant, not the lawyer, and a lawyer must promptly deliver property the client is entitled to receive.
Bar
NCSB
Issued
February 5, 1982

Apply this to your situation

This page answers the general question as of 1982. Ask about yours and see what the current North Carolina Rules of Professional Conduct say for your facts, with citations.

How much weight this carries: Opinions adopted under North Carolina's earlier rules (the "RPC" series, 1985-1997, and the "CPR" series, 1974-1985) are binding unless overruled (27 N.C.A.C. 1D .0101(j)). Formal ethics opinions since 1997 are issued by the State Bar Council to give guidance and to establish principles of ethical conduct. Source.
About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked on this page) is the authoritative source for any reliance.

Plain-English summary

The inquiry concerned a lawyer who represented an indigent criminal defendant on appeal from a Superior Court conviction and who, while prosecuting the appeal, came into possession of a State-supplied transcript of the lower court proceeding. The question was whether the lawyer had an ethical obligation to turn the transcript over to the former client after the appeal was decided.

The opinion concluded yes, if the client wishes the lawyer to do so. It relied on DR 9-102(B)(4), which requires a lawyer to deliver promptly to the client, as requested, any property in the lawyer's possession that the client is entitled to receive. Because the right to the transcript belongs clearly to the defendant and not the lawyer, the client is entitled to it once the employment relationship ends, if the client asks for it.

Currency note

This opinion was issued in 1982 under North Carolina's former Code of Professional Responsibility (the DR/EC framework), before the State Bar replaced the Code with the Rules of Professional Conduct (adopted 1985) and before the 2003 revisions to those Rules. The client-property and file-return principles it applied correspond to today's Model Rule 1.15 (safekeeping property) and Model Rule 1.16(d) (returning property on termination). 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 the lawyer have to give the client the State-supplied transcript?

A: Yes, if the client wants it. The opinion concluded the lawyer must deliver the transcript because the client is entitled to property in the lawyer's possession that belongs to the client.

Q: Why does the transcript belong to the client rather than the lawyer?

A: Per the opinion, the right to the transcript is clearly that of the defendant, not the attorney, so the client is entitled to it on request.

Q: When does the obligation arise?

A: The opinion framed it as arising upon the client's request after termination of the employment relationship, once the appeal is disposed of.

Background and rules framework

The opinion applied DR 9-102(B)(4) of the former Code of Professional Responsibility, the predecessor to today's Model Rule 1.15 on safekeeping client property and Model Rule 1.16(d) on returning property when the representation ends. The analysis turned on ownership: the transcript was the defendant's property, so the lawyer had to deliver it on request.

Citations and references

Rules of Professional Conduct:

  • North Carolina DR 9-102(B)(4) (Code of Professional Responsibility; prompt delivery of client property)
  • MR 1.15 (safekeeping property)
  • MR 1.16(d) (returning client property on termination)

See also

Source

Original opinion text

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

Inquiry:

Does an attorney who has represented an indigent criminal defendant upon appeal from a conviction in Superior Court, and who has, in the course of prosecuting the appeal, come into the possession of a State supplied transcript of the lower court proceeding, have and ethical obligation to turn the transcript over to his former client after disposition of the appeal?

Opinion:

Yes, if the client wishes the attorney to do so. DR 9-102(B) (4) requires a lawyer to deliver promptly to the client as requested by the client any properties in possession of the lawyer which the client is entitled to receive. Since the right to the transcripts is clearly that of the defendant, not the attorney, the client is entitled to the transcript if he wishes the attorney to turn it over upon termination of the employment relationship.

What do the rules say today, for your facts?

This opinion is from 1982. Ezel checks the current North Carolina Rules of Professional Conduct against your situation and cites the rules it relies on.

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