Can a criminal defense lawyer agree with the prosecutor not to give discovery copies to the client during the case and to return sensitive materials before it ends?

Plain-English summary

A prosecutor offers broad, voluntary discovery to defense lawyers on the condition that they sign an agreement: the lawyer may share and discuss the materials with the client but will not give the client copies until the case concludes, and will return certain "sensitive" materials (such as cooperating-witness identities and graphic victim photographs) to the Commonwealth before the representation ends. The committee analyzes whether signing and complying with that agreement violates Rule 1.4 or Rule 1.16(e).

On Rule 1.4, the committee concludes there is no violation. Rule 1.4 requires the lawyer to keep the client reasonably informed and comply with reasonable requests for information, but does not dictate the means. Because the agreement expressly lets the lawyer show the materials to the client and discuss their contents, the lawyer can meet the duty by meeting with the client to view and discuss the discovery; Rule 1.4 does not require providing copies, even on request (citing LEO 1789). The committee distinguishes LEO 1854, which prohibited an arrangement that limited the lawyer's ability to give the client the information itself; here the information is fully shared.

On Rule 1.16(e), the committee concludes the agreement is mostly compatible but flags one risk. At termination, the lawyer must provide the file contents on request, so any material in the file at the end must be turned over unless its disclosure is prohibited by law; the agreement's main terms keep the discovery in the file and provide for furnishing it at termination. The provision requiring the lawyer to return "sensitive" materials to the Commonwealth, however, could cause a Rule 1.16(e) problem if the representation ends unexpectedly before the lawyer returns them. To avoid that, the lawyer should obtain the client's informed consent, preferably in writing, before agreeing to the restriction, and without consent should not accept sensitive materials subject to the return provision.

In practice

Under the Virginia rules as they stood when the opinion issued, a criminal defense lawyer may sign and comply with a prosecutor's agreement not to give the client copies of voluntarily provided discovery during the case, because Rule 1.4 lets the lawyer satisfy the duty to inform by showing and discussing the materials with the client rather than by handing over copies. The opinion holds that this differs from the arrangement barred by LEO 1854, which restricted sharing the information itself. The opinion holds that Rule 1.16(e) requires furnishing the file at termination, and that a term requiring return of "sensitive" materials to the Commonwealth before the representation ends could conflict with that duty if the representation ends unexpectedly; accordingly, the lawyer should obtain the client's informed consent (preferably in writing) before agreeing, and should not accept such sensitive materials without that consent.

Common questions

Q: Can I agree not to give my client copies of discovery during the case?

A: The opinion concludes yes, where the agreement lets you show and discuss the materials with the client. Rule 1.4 governs the duty to inform but not the means, so meeting with the client to view and discuss the discovery satisfies it; Rule 1.4 does not require providing copies even on request (LEO 1789).

Q: What is the difference between this and the arrangement barred by LEO 1854?

A: The opinion distinguishes LEO 1854 because that arrangement limited the lawyer's ability to give the client the information; here the lawyer is allowed and encouraged to share the contents fully, only the physical copies are withheld during the case.

Q: What is the problem with agreeing to return "sensitive" materials to the prosecutor?

A: The opinion concludes that returning sensitive materials before the representation ends could violate Rule 1.16(e) if the representation ends unexpectedly before the lawyer returns them, because the client is then entitled to the file. The lawyer should obtain the client's informed consent before agreeing, and without it should not accept such materials.

Background and rules framework

The opinion interprets Rule 1.4 of the Virginia Rules of Professional Conduct (Model Rule 1.4), the communication rule, and Rule 1.16(e) (Model Rule 1.16), which on termination requires returning client property and furnishing copies of specified file materials on request. The committee relies on LEO 1789 (a client's request for a copy of a file document must be considered but does not compel production) and distinguishes LEO 1854 (an arrangement limiting the lawyer's ability to share information with the client).

Citations and references

Rules of Professional Conduct:

• Model Rule 1.4 / Va. Rule 1.4 (communication; duty to keep the client informed)
• Model Rule 1.16(e) / Va. Rule 1.16(e) (return of the file on termination)

Other opinions cited:

• Va. LEO 1789: a client's request for a copy of a file document must be considered, but Rule 1.4 does not compel producing every requested document
• Va. LEO 1854: an arrangement limiting the lawyer's ability to give the client information is prohibited

See also

• VSB Ethics Op. 1865: Third-Party Liens on Settlement Funds

Source

• Landing page: https://vsb.org/Site/about/rules-regulations/leo-opinions.aspx
• Original PDF: https://www.vsb.org/common/Uploaded%20files/LEOs/1864.pdf

Original opinion text

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

LEGAL ETHICS OPINION 1864

MAY A CRIMINAL DEFENSE LAWYER AGREE
THAT HE WILL NOT GIVE CERTAIN DISCOVERY
MATERIALS TO HIS CLIENT DURING THE COURSE
OF THE REPRESENTATION, AND THAT HE WILL
REMOVE CERTAIN MATERIALS FROM HIS FILE
PRIOR TO THE END OF THE REPRESENTATION?

In this hypothetical, a prosecutor wishes to provide broad discovery to defense lawyers in the course of criminal prosecutions, in order to make defendants aware of the weight of the evidence against them, to ensure that the defense lawyer has access to all potentially useful evidence, and to encourage reasonable resolutions of criminal cases in light of that evidence. Because of the nature of much of this evidence, including the identities and locations of cooperating witnesses and graphic photographs of the victims, the prosecutor does not want to permit defendants to physically possess this evidence. Accordingly, the prosecutor asks all defense lawyers who receive any discovery that is not legally required to sign an agreement that provides: I, _______, counsel for the above referenced defendant, (or authorized agent of counsel for such defendant) hereby acknowledge receipt of [the discovery materials]. Although the Commonwealth is required to allow me to inspect exculpatory evidence, I agree that, with the exception of those materials described in Rule 3A:11(b)(1), the Commonwealth is not required to provide me with copies of any evidentiary materials or to allow me to copy any evidentiary materials. In consideration of the Commonwealth providing me with copies of these evidentiary materials other than those described in Rule 3A:11(b)(1), I agree that, until this case is concluded, I will not allow these materials or any copy thereof to leave my possession or control. While I have the right to share and show the contents of these materials to my client, I agree to not give these materials, except the materials described in Rule 3A:11(b)(1), to my client until this case is concluded. I understand that, although I may review my client’s criminal and DMV records in the Commonwealth’s Attorney’s office, the Commonwealth Attorney is prohibited from giving me these records absent a specific court order. I understand that [certain discovery materials] are particularly sensitive and that the Commonwealth is loaning me copies thereof for my convenience. In consideration of the Commonwealth providing me with such copies rather than merely allowing me to inspect them, I agree to return them to the Commonwealth’s Attorney prior to the conclusion of my representation of the defendant. QUESTION PRESENTED Does a criminal defense lawyer violate Rule 1.4 and/or Rule 1.16(e) by agreeing that, to the extent the prosecutor provides any discovery in excess of that required by law, the defense lawyer will share the information with his client but will not give any discovery materials or copies to the client during the representation, and will return any copies of “sensitive” discovery materials to the Commonwealth’s Attorney so that his client is not entitled to receive them upon termination of the representation?

LEO 1864
Page 2
APPLICABLE RULES AND OPINIONS
The applicable Rules of Professional Conduct are Rule 1.4 1 and Rule 1.16(e) 2, and relevant legal ethics opinions are 1789 and 1854. ANALYSIS A lawyer’s obligation to share information with his client during the course of the representation is governed by Rule 1.4, which requires the lawyer to inform the client of “facts pertinent to the matter” and to comply with “reasonable requests for information.” Unlike Rule 1.16(e), which applies upon termination of the representation, Rule 1.4 does not specify the means by which these obligations must be carried out. LEO 1789, addressing the issue of a client who has asked for a copy of his medical records that the lawyer obtained in the course of the representation, explains that any request for a copy of a particular document in the file “must be considered” in light of the duty to promptly comply with reasonable requests for information, but does not conclude that a lawyer must provide a document because the client has requested it. In this case, the discovery agreement specifically authorizes the defense lawyer to show his client the contents of the discovery materials and to discuss those contents with the client; the defense lawyer is only barred from providing the document or a copy to the client. Under the 1

Rule 1.4
Communication
(a) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information. (b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation. (c) A lawyer shall inform the client of facts pertinent to the matter and of communications from another party that may significantly affect settlement or resolution of the matter.

2

Rule 1.16
Declining or Terminating Representation

(e) All original, client-furnished documents and any originals of legal instruments or official documents which are in the lawyer’s possession (wills, corporate minutes, etc.) are the property of the client and, therefore, upon termination of the representation, those items shall be returned within a reasonable time to the client or the client’s new counsel upon request, whether or not the client has paid the fees and costs owed the lawyer. If the lawyer wants to keep a copy of such original documents, the lawyer must incur the cost of duplication. Also upon termination, the client, upon request, must also be provided within a reasonable time copies of the following documents from the lawyer’s file, whether or not the client has paid the fees and costs owed the lawyer: lawyer/client and lawyer/third-party communications; the lawyer’s copies of client-furnished documents (unless the originals have been returned to the client pursuant to this paragraph); transcripts, pleadings and discovery responses; working and final drafts of legal instruments, official documents, investigative reports, legal memoranda, and other attorney work product documents prepared or collected for the client in the course of the representation; research materials; and bills previously submitted to the client. Although the lawyer may bill and seek to collect from the client the costs associated with making a copy of these materials, the lawyer may not use the client’s refusal to pay for such materials as a basis to refuse the client’s request. The lawyer, however, is not required under this Rule to provide the client copies of billing records and documents intended only for internal use, such as memoranda prepared by the lawyer discussing conflicts of interest, staffing considerations, or difficulties arising from the lawyer-client relationship. The lawyer has met his or her obligation under this paragraph by furnishing these items one time at client request upon termination; provision of multiple copies is not required. The lawyer has not met his or her obligation under this paragraph by the mere provision of copies of documents on an item-by-item basis during the course of the representation.

LEO 1864
Page 3
circumstances, the lawyer does not violate Rule 1.4 by entering into and complying with this discovery agreement. The lawyer can explain all pertinent facts to his client and comply with a reasonable request for information by meeting with the client to view and discuss the discovery materials; accordingly, Rule 1.4 does not require that the lawyer provide copies of any of these materials, even upon request of the client. This proposed discovery agreement differs from the arrangement prohibited by LEO 1854 because in this case, the lawyer is allowed and encouraged to share the information from the discovery materials with his client. Absent state or federal law, a rule of court, or court order to the contrary, an agreement that in any way limited the lawyer’s ability to give information to his client would be prohibited according to the analysis in LEO 1854. At the termination of the representation, Rule 1.16(e) requires that the lawyer provide the contents of his file to the client upon the client’s request. Accordingly, unless the disclosure of certain materials is prohibited by law, any materials that are in the lawyer’s file at the conclusion of the representation must be provided at that time. Except for the last paragraph of the discovery agreement, referring to “certain sensitive materials,” the agreement does not raise any concern as to the defense lawyer’s compliance with Rule 1.16(e), as it explicitly provides that the lawyer will make the discovery materials a part of his file and furnish those materials to his client upon termination of the representation. However, the provision that requires the lawyer to return “certain sensitive materials” to the Commonwealth so that those materials are not in the lawyer’s possession at the termination of the representation may lead to problems if the lawyer’s representation is terminated unexpectedly and the lawyer does not have time to return the materials before the client is entitled to receive a copy of his file. In order to avoid a potential violation of Rule 1.16(e) after the lawyer’s termination or for another reason, the defense lawyer should seek informed consent, preferably in writing, from his client before agreeing to this restriction on the client’s access to information upon termination of the representation. 3 Without client consent, the lawyer should not accept “sensitive materials” that would be subject to the last paragraph of the discovery agreement. This opinion is advisory only and is not binding on any court or tribunal. Revised March 12, 2014 Committee Opinion October 24, 2012

3

The lawyer may wish to memorialize the client’s consent to the agreement by having the client sign the agreement, along with the defense lawyer and the Commonwealth’s Attorney.