Must a criminal-defense lawyer give a former client a copy of the pre-sentence report from the file when the client asks for it to pursue habeas relief?

Plain-English summary

A lawyer represented a client convicted in a Virginia circuit court. A probation officer prepared a pre-sentence report for the sentencing hearing and sent a copy to the lawyer, who reviewed it with the client. After sentencing, the client said he would petition for habeas corpus and asked the lawyer to provide the file, including the pre-sentence report. The committee was asked whether the lawyer must provide it.

The committee applies Rule 1.16(e), which governs the lawyer's duty to transmit the client's file on termination. Paragraph (e) requires provision of the client's entire file except one narrow category: billing records and documents intended only for internal use, such as memoranda on conflicts, staffing, or difficulties in the lawyer-client relationship. A pre-sentence report is not that sort of internal document, so the general requirement to provide file contents (or copies) applies.

The committee notes the limit in Comment 11: paragraph (e) should not be read to require disclosure where disclosure is prohibited by law. The request pointed to a 2003 Attorney General advisory opinion interpreting Virginia Code Section 19.2-299 on whether attorneys may disclose pre-sentence reports to clients. The committee's exclusive purview is interpreting the Rules of Professional Conduct, so it declined to analyze that other legal authority.

Currency note

This opinion was issued in 2004. Virginia's rules and the law governing pre-sentence reports may have changed since. Verify against current rules and statutes before relying on any specific requirement mentioned here.

In practice

The opinion holds that, under Rule 1.16(e) as it stood at the time, a pre-sentence report falls within the client's file and is not an internal document a lawyer may withhold, so it must be provided on the client's request at the end of the representation. The committee expressly declined to decide whether a statute such as Virginia Code Section 19.2-299 independently bars that disclosure; Comment 11 leaves room for a legal prohibition the committee did not resolve.

Common questions

Q: Is a pre-sentence report part of the client's file the lawyer must return?

A: Yes. The opinion concludes a pre-sentence report is not an internal-use document under Rule 1.16(e)'s exception, so it falls within the file the lawyer must provide on request.

Q: Can the lawyer refuse because a statute may bar releasing the report?

A: The committee did not decide that. Comment 11 says paragraph (e) does not require disclosure prohibited by law, but the committee declined to interpret Virginia Code Section 19.2-299, as that is outside its purview.

Q: Does it matter that the client wanted the report to pursue habeas relief?

A: The opinion does not turn on the client's reason. The duty to provide the file under Rule 1.16(e) arises on termination and the client's request, independent of the intended use.

Background and rules framework

The opinion interprets Rule 1.16(e) (Model Rule 1.16; declining or terminating representation, disposition of the client's file) and its Comment 11. Rule 1.16(e) requires return of the file on termination, excepting only billing records and internal-use documents; Comment 11 carves out disclosures prohibited by other law.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.16 / Virginia Rule 1.16(e) and Comment 11 (return of the client's file on termination)

Statutes:

• Virginia Code Section 19.2-299 (pre-sentence reports), referenced in the request but not interpreted by the committee

Other authority cited:

• Virginia Attorney General Advisory Opinion dated March 31, 2003 (disclosure of pre-sentence reports), referenced in the request

See also

• VA LEO 1789: Medical Report in the Client File
• ABA Formal Op. 471: Surrender of Papers and Property to a Former Client
• CA COPRAC Op. 2007-174: Electronic Versions of the Client File on Termination

Source

• Landing page: https://vsb.org/Site/about/rules-regulations/leo-opinions.aspx
• Original PDF: https://www.vsb.org/common/Uploaded%20files/LEOs/1790.pdf

Original opinion text

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

Committee Opinion
January 5, 2004
LEGAL ETHICS OPINION 1790

CLIENT FILES – REFUSAL OF ATTORNEY TO
RELEASE A COPY OF THE DEFENDANT’S
PRE-SENTENCE REPORT TO THE
DEFENDANT.

Your request presented a hypothetical situation involving a client requesting a copy of his file
from an attorney. Specifically, the attorney had represented the client in a criminal matter. The
client was convicted in a Virginia circuit court. The trial judge set a sentencing hearing and
ordered a probation officer to prepare a pre-sentence report for use at that hearing. The officer
forwards a copy of the report to the attorney, who reviews it with his client. One day after the
sentencing hearing, the client informs the attorney that the client will be petitioning the Supreme
Court of Virginia for a writ of habeas corpus. The client requests that the attorney provide the
file to the client, including the pre-sentence report.
The question raised by your hypothetical is whether the attorney has a duty to provide the presentence report to the client. The pertinent provision of the Rules of Professional Conduct is
Rule 1.16(e), which specifically governs the lawyer’s duty to transmit the client’s file upon
termination of the relationship and at the request of the client. Whether the attorney must
provide a copy or an original of the contents depends on the nature of each document; however,
paragraph (e) does require provision of the client’s entire file, except for one narrow category:
Billing records and documents intended only for internal use, such as
memoranda prepared by the lawyer discussing conflicts, staffing
considerations, or difficulties arising from the lawyer-client relationship.
A pre-sentence report is not the sort of internal document described by the exception.
Therefore, the general requirement from this provision would apply: that the lawyer provide file
contents or, in many instances, copies of those contents, to the client. Comment 11, however,
sets forth an important limitation:
The requirements of paragraph (e) should not be interpreted to require
disclosure of materials where the disclosure is prohibited by law.
Your request references Attorney General Jerry W. Kilgore’s Advisory Opinion, dated March
31, 2003, which interprets Virginia Code §19.2-299, as addressing the legal issue of whether
disclosure of pre-sentencing reports by attorneys to their clients is prohibited by law. The
exclusive purview of this committee is to interpret the Rules of Professional Conduct; it would
be outside that purview for this committee to analyze other legal authority regarding disclosure
of pre-sentence reports. This committee, therefore, declines to do so.
This opinion is advisory only, based solely on the facts you presented and not binding on any
court or tribunal.
Committee Opinion
January 5, 2004