Can a prosecutor require, and defense counsel agree, that documents the prosecutor produces may be shown to the defendant but not copied for the defendant?

Plain-English summary

As a condition for producing documents to defense counsel in a criminal case, a prosecutor requires the defendant's lawyer to sign an agreement that recognizes the documents are State property, allows the lawyer to show them to the defendant, prohibits giving the defendant copies, and requires returning the documents and any copies at the conclusion of the case.

The Committee starts with Rule 3.09(d), which obligates a prosecutor to make timely disclosure of evidence that tends to negate guilt or mitigate the offense (and, at sentencing, unprivileged mitigating information), but is silent as to other evidence and as to restrictions that may be placed on disclosed material. From that silence the Committee concludes that no provision of the Disciplinary Rules prohibits a prosecutor from requiring, or defense counsel from signing, an agreement that the discovery is State property, that copies may not be disseminated, and that the documents and any copies be returned. The Committee notes that in civil cases Texas courts may issue analogous protective orders under Texas Rule of Civil Procedure 192.6(b) restricting dissemination and copying and requiring return of produced documents.

The Committee then identifies the duty the agreement places on defense counsel. Before signing, the lawyer must inform the client of the proposed agreement and any available alternatives to obtaining the documents on those terms. Citing Comment 1 to Rule 1.03 and Rule 1.03(b), the Committee states the lawyer must explain the matter to the extent reasonably necessary to permit the client to make informed decisions about the representation.

In practice

Under this opinion, and under the Texas rules as they stood at the time, a prosecutor may condition the production of documents on defense counsel signing an agreement that the documents are State property, may be shown to the defendant but not copied for the defendant, and must be returned at the end of the case; the Committee finds no Disciplinary Rule prohibiting either side from entering such an agreement, and analogizes to civil protective orders under Texas Rule of Civil Procedure 192.6(b). The opinion holds that before signing, defense counsel must inform the client of the agreement and any available alternatives and, under Rule 1.03(b), explain the matter to the extent reasonably necessary for the client to make informed decisions.

Common questions

Q: Can a prosecutor refuse to let defense counsel give the defendant copies of produced documents?

A: Per Opinion 619, yes. The Committee finds no provision of the Disciplinary Rules prohibiting a prosecutor from conditioning production on an agreement that the documents are State property and that copies may not be given to the defendant, with return required at the end of the case.

Q: May defense counsel sign such an agreement?

A: Yes. The Committee concludes nothing in the Rules prohibits defense counsel from signing an agreement recognizing the discovery as State property, barring dissemination of copies, and requiring return of the documents.

Q: What must defense counsel do before agreeing?

A: Before signing, counsel must inform the client of the proposed agreement and any available alternatives, and under Rule 1.03(b) explain the matter to the extent reasonably necessary to permit the client to make informed decisions about the representation.

Q: Does Rule 3.09(d) require the prosecutor to hand over copies?

A: The opinion reads Rule 3.09(d) as requiring timely disclosure of exculpatory or mitigating evidence but as silent on other evidence and on restrictions that may be placed on disclosed material, so it does not bar the copying restriction at issue.

Background and rules framework

The opinion interprets Texas Disciplinary Rule 3.09(d) (special responsibilities of a prosecutor; disclosure of exculpatory and mitigating evidence; ABA Model Rule 3.8) and Rule 1.03(b) (keeping the client informed and explaining matters so the client can make informed decisions; ABA Model Rule 1.4), with Comment 1 to Rule 1.03. It refers to Texas Rule of Civil Procedure 192.6(b) on civil protective orders by analogy.

Citations and references

Rules of Professional Conduct:

• MR 3.8 (special responsibilities of a prosecutor); MR 1.4 (communication)
• Texas Disciplinary Rules 3.09(d), 1.03(b) (with Comment 1 to Rule 1.03)

Statutes:

• Texas Rule of Civil Procedure 192.6(b) (protective orders in discovery), cited by analogy

Cases:

• In re Ford Motor Co., 211 S.W.3d 295 (Tex. 2006), civil protective orders
• General Tire, Inc. v. Kepple, 970 S.W.2d 520 (Tex. 1998), civil protective orders

See also

• TX Ethics Op. 646: Prosecutor Open-File Conditions Under the Michael Morton Act
• TX Ethics Op. 657: Returning a Criminal Client's File, Costs and Format
• TX Ethics Op. 631: Prosecutor Publishing Names of DWI Arrestees

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-619/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_619.pdf

Original opinion text

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

QUESTION PRESENTED

Do the Texas Disciplinary Rules of Professional Conduct permit a prosecutor to require and defense counsel to agree that documents the prosecutor produces to defense counsel may be shown to the defendant but that copies of the documents may not be given to the defendant?

STATEMENT OF FACTS

As a condition for providing documents to defense counsel in a criminal case, a prosecutor requires that the defendant’s lawyer sign an agreement (1) recognizing that the documents are property of the State, (2) allowing the defendant’s lawyer to show the documents to the defendant, (3) prohibiting the lawyer from providing copies of the documents to the defendant, and (4) requiring that the documents and any copies be returned to the prosecutor at the conclusion of the case.

DISCUSSION

Rule 3.09 of the Texas Disciplinary of Rules of Professional Conduct addresses special responsibilities of prosecutors in criminal cases. Rule 3.09(d) provides that a prosecutor in a criminal case shall:

“make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal[.]”

Although the prosecutor has an obligation under Rule 3.09(d) to disclose to the defense all exculpatory or mitigating evidence, the Rule is silent as to the disclosure of other evidence and as to restrictions that may be placed on evidence and information disclosed.

No provision of the Texas Disciplinary Rules prohibits a prosecutor from requiring, or defense counsel from signing, an agreement recognizing that discovery provided by the prosecutor is property of the State and prohibiting dissemination of copies of that discovery. Likewise, no provision of the Texas Disciplinary Rules prohibits an agreement requiring defense counsel receiving documents from a prosecutor to return the documents and any copies to the prosecutor.

In civil cases, Texas courts may issue protective orders to safeguard confidential information by limiting the dissemination, copying, and use of such information. See Rule 192.6(b) of the Texas Rules of Civil Procedure (authorizing orders in the interest of justice to protect against undue burden, unnecessary expense, harassment, annoyance, or invasion of rights in connection with discovery requests). See also In re Ford Motor Co., 211 S.W.3d 295 (Tex. 2006); General Tire, Inc. v. Kepple, 970 S.W.2d 520 (Tex. 1998). Such protective orders may restrict the recipient of materials produced in discovery from giving or otherwise divulging the protected information to any other person or entity and from copying documents produced and may require the recipient at the conclusion of the litigation to return the documents produced.

Before signing a proposed agreement limiting the provision to the defendant of documents produced by the prosecutor, defense counsel has a duty to inform his client of the proposed agreement and available alternatives, if any, to obtaining the documents under the terms of the proposed agreement. See Comment 1 to Rule 1.03 (“The client should have sufficient information to participate intelligently in decisions concerning the objectives of the representation and the means by which they are to be pursued to the extent the client is willing and able to do so.”). In discussing the prosecutor’s proposed agreement and in communications with the defendant generally, the defendant’s lawyer is required by Rule 1.03(b) to “explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.”

CONCLUSION

The Texas Disciplinary Rules of Professional Conduct permit a prosecutor to require and defense counsel to agree that documents the prosecutor produces to defense counsel may be shown to the defendant but that copies of the documents may not be given to the defendant.

Tex. Comm. On Professional Ethics, Op. 619 (2012)