Can a Texas prosecutor make criminal defense lawyers promise not to give file materials to their clients and waive court-ordered discovery as a condition of open-file access?
Texas Ethics Opinion 646: Prosecutor Conditions on Open-File Access After the Michael Morton Act
Short answer: Per the Committee, a prosecutor may not, as a condition for providing information the prosecutor is obligated to disclose, require criminal defense lawyers to agree not to show or give copies of the information to their clients or to waive court-ordered discovery in all of their clients' cases; because the Michael Morton Act requires an open-file policy without preconditions, imposing such conditions violates Rule 8.04(a)(12), and the Act has rendered the Committee's earlier Opinion 619 obsolete.
Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the Texas Disciplinary Rules of Professional Conduct and are persuasive authority. This summary is for research purposes only and is not legal advice. Verify current rules before acting on any specific guidance.
About this page: The plain-English summary and Q&A below were written by Ezel based on the official opinion. The opinion text is reproduced at the bottom; the official source (linked) controls.
Plain-English summary
The opinion addresses a district attorney who requires criminal defense lawyers to sign a confidentiality agreement as a condition of access to the prosecutor's file. The agreement gives lawyers access to discoverable information in exchange for agreeing not to share copies with anyone (including their own clients) and agreeing not to seek court-ordered discovery in any of their clients' cases.
The Committee starts from its earlier Opinion 619 (June 2012), which had permitted an agreement that documents could be shown but not copied to the defendant, provided defense counsel complied with Rule 1.03(b)'s duty to explain matters so the client can make informed decisions. The opinion then explains that the legislature enacted the Michael Morton Act, codified at Tex. Code Crim. Proc. art. 39.14, effective January 1, 2014. The Act requires prosecutors to disclose all information in the file except work product and material made confidential by law, permits discovery and copying of all witness statements, and does not require (or permit a prosecutor to require) any concession by defense lawyers or their clients in order to receive the discovery; disclosure must occur "as soon as practicable after receiving a timely request from the defendant."
The opinion applies Rule 8.04(a)(12), which prohibits a lawyer from violating other laws of the state relating to the professional conduct of lawyers and the practice of law, and notes the prosecutor's broader obligation reflected in Comment 1 to Rule 3.09 to see that the defendant is accorded procedural justice. Because article 39.14 mandates an open-file policy without preconditions, the opinion concludes that prosecutors would violate Rule 8.04(a)(12) if they refused to produce the file in accordance with the statute unless defense lawyers first agreed to waive their clients' rights, or if they otherwise imposed conditions not found in the statute.
The opinion concludes that the Michael Morton Act has rendered Opinion 619 obsolete, because the Act requires an open-file policy by all Texas prosecutors without requiring defendants or their lawyers to agree to any restrictions on the use of the file's materials except as the Act provides.
In practice
Under this opinion, and under the Texas rules and statute as they stood in 2014, a prosecutor must comply with the Michael Morton Act and may not attach to the statutorily required disclosures any condition the Act does not authorize. The opinion holds that conditioning open-file access on defense lawyers agreeing not to share materials with their clients, or agreeing to waive court-ordered discovery, violates Rule 8.04(a)(12), and that the Committee's earlier Opinion 619 no longer states the governing analysis after the Act took effect.
Common questions
Q: Can a Texas prosecutor require defense lawyers to keep file materials from their own clients in exchange for open-file access?
A: Per Opinion 646, no; because the Michael Morton Act requires disclosure without preconditions, imposing that condition on the required disclosures violates Rule 8.04(a)(12).
Q: Can a prosecutor require defense lawyers to waive court-ordered discovery as a condition of the open file?
A: No. The opinion concludes that article 39.14 neither requires nor permits a prosecutor to require such a concession, so conditioning the disclosures on that waiver violates Rule 8.04(a)(12).
Q: Is Opinion 619 still good law after this opinion?
A: No. The opinion concludes the Michael Morton Act has rendered Opinion 619 obsolete, because the Act mandates an open-file policy without the kind of agreement Opinion 619 had addressed.
Background and rules framework
The opinion interprets Rule 8.04(a)(12), which prohibits a lawyer from violating other state laws relating to the professional conduct of lawyers and the practice of law, in light of Tex. Code Crim. Proc. art. 39.14 (the Michael Morton Act). It also draws on Rule 3.09 (special responsibilities of a prosecutor; Comment 1 on procedural justice) and Rule 1.03(b) (a lawyer's duty to explain matters so a client can make informed decisions), the rule the Committee had relied on in Opinion 619. In the ABA Model Rules, the prosecutor's special responsibilities correspond to Model Rule 3.8, the misconduct provision to Model Rule 8.4, and the client-communication duty to Model Rule 1.4.
Citations and references
Rules of Professional Conduct:
- MR 3.8 (special responsibilities of a prosecutor)
- MR 8.4 (misconduct; violating law relating to a lawyer's professional conduct)
- MR 1.4 (communication; explaining matters so a client can make informed decisions)
- Texas Disciplinary Rules 3.09(d), 8.04(a)(12), 1.03(b)
Statutes and rules:
- Tex. Code Crim. Proc. art. 39.14 (the Michael Morton Act), effective January 1, 2014
- Tex. R. Evid. 615(a) (production of a non-defendant witness's statement)
Other opinions cited:
- Texas Professional Ethics Committee Opinion 619 (June 2012): rendered obsolete by the Michael Morton Act
See also
- ABA Formal Op. 467: Prosecutors' Managerial and Supervisory Obligations
- ABA Formal Op. 469: Prosecutors and Debt Collection Companies
Source
- Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-646/
- Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_646.pdf
Original opinion text
Reproduced from the official source for research purposes. The linked source is authoritative.
QUESTION PRESENTED
As a condition for allowing criminal defense lawyers to obtain information in the prosecutor's file, may a prosecutor require defense lawyers to agree not to show or provide copies of the information to their clients and agree to waive court-ordered discovery in all of the lawyers' cases?
STATEMENT OF FACTS
A district attorney requires criminal defense lawyers to sign a confidentiality agreement as a condition to granting lawyers access to the prosecutor's file (a so-called "open file" arrangement). The agreement allows lawyers to obtain discoverable information in the prosecutor's file in exchange for their agreeing not to share copies of that information with anyone else, including the lawyers' clients, and their agreeing not to seek court-ordered discovery in any of their clients' cases.
DISCUSSION
Professional Ethics Committee Opinion 619 (June 2012) addressed the question of whether a prosecutor may require and defense counsel may 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[.]" The opinion observed: "Although the prosecutor has an obligation under Rule 3.09(d) [of the Texas Disciplinary Rules of Professional Conduct] 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." This committee concluded in Opinion 619 that the Texas Disciplinary Rules of Professional Conduct permit such agreements, provided that, before signing such an agreement, defense lawyers must comply with their duties under Rule 1.03(b) to "explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation."
Since this committee issued Opinion 619, the legislature passed and the governor signed the Michael Morton Act, codified at Tex. Code Crim. Proc. art. 39.14. Effective January 1, 2014, the Act amended article 39.14 of the Texas Code of Criminal Procedure to require that prosecutors disclose all information in a prosecutor's file except the prosecutor's work product and other information (such as information about victims and children) that is made confidential by law. Among other things, article 39.14 permits discovery and copying of all witness statements, not just the defendant's statement. Cf. Tex. R. Evid. 615(a) (requiring production of a statement of a witness other than the defendant only after the witness has been passed for cross-examination during trial). Furthermore, article 39.14 does not require (or permit a prosecutor to require) any concession by criminal defense lawyers or their clients in order to receive such discovery nor must defendants seek a court order to secure the discovery mandated by that article. Article 39.14(a) requires the disclosure of the prosecutor's file "as soon as practicable after receiving a timely request from the defendant . . . ."
Comment 1 to Rule 3.09 states that "a prosecutor is obliged to see that the defendant is accorded procedural justice, that the defendant's guilt is decided upon the basis of sufficient evidence, and that any sentence imposed is based on all unprivileged information known to the prosecutor." Furthermore, Rule 8.04(a)(12) provides that a lawyer shall not "violate any other laws of this state relating to the professional conduct of lawyers and to the practice of law."
Because article 39.14 requires an "open file" policy by prosecutors without pre-conditions, prosecutors would violate Rule 8.04(a)(12) if they refused to produce and permit the inspection of their file in accordance with the provisions of article 39.14 unless defense lawyers first agreed to waive certain rights of their clients. Under article 39.14—and, therefore, under Rule 8.04(a)(12)—prosecutors are required to produce and permit the inspection of their files, subject only to the limitations set forth in article 39.14. Thus, prosecutors would violate Rule 8.04(a)(12) if they attempted to impose conditions not found in article 39.14 before making the required disclosures.
The committee concludes that the Michael Morton Act has rendered Opinion 619 obsolete because the act requires an "open file" policy by all Texas prosecutors without requiring defendants or their lawyers to agree to any restrictions on their use of materials in the file except as provided in the act.
CONCLUSION
The Texas Disciplinary Rules of Professional Conduct require prosecutors to comply with the Michael Morton Act, Tex. Code Crim. Proc. art. 39.14, including making disclosures required by the act. Therefore, prosecutors may not, as a condition for providing information in their files they are obligated to disclose, require that criminal defense lawyers agree not to show or provide copies of the information to their clients, nor require that criminal defense lawyers agree to waive court-ordered discovery in all of their clients' cases.
Tex. Comm. On Professional Ethics, Op. 646 (2014)