Can a Washington criminal defense lawyer charge a client for copying the case file or discovery, and does the answer change for an indigent appointed client?

Plain-English summary

A criminal defense lawyer asked about obligations to provide copies of discovery to clients in light of 2005 amendments to CrR 4.7(h)(3) and CrRLJ 4.7(g)(3), which keep discovery materials in the attorney's exclusive custody but permit a defense attorney to give the defendant a copy after appropriate redactions approved by the prosecutor or court. The questions were whether a retained lawyer may condition providing a copy on prepayment of copying and redaction costs, may decline to produce a copy, may charge or decline after the case is over, and whether the answers differ in appointed (indigent) cases.

The committee declined to interpret the Criminal Rules themselves, but applied WRPC 1.4 (communication), 1.5 (fees), 1.6 (confidentiality), and 1.15 (the 2006 Washington rule on declining or terminating representation, the counterpart to Model Rule 1.16), together with the committee's Formal Opinion 181 on files. For a retained client, the committee concluded the lawyer may shift copying costs to the client at the end of the representation only if the original fee agreement contains an express term, entered at the start or shortly after, informing the client that the client will bear copying costs to obtain the file. Without such a term, the file in its entirety belongs to the client, and the lawyer must bear the copying cost; the rationale is that a client who objects to bearing copying costs can negotiate that term up front or choose a different lawyer.

For an indigent appointed client, the committee reasoned that the client has no choice in the open market, that it is unethical for court-appointed counsel to seek supplemental payment from an indigent defendant (citing In re Discipline of Thomas Earl), and that once indigence is determined the lawyer's obligation is not to impose additional cost on the indigent. Charging an indigent a separate copying cost for materials the client requires would violate WRPC 1.5 and in some circumstances 1.4, and charging a supplemental fee to obtain file materials would violate WRPC 1.15 as well as 1.5. The duty to fund the costs of representation falls on the lawyer and the appointment or contract terms, not on the indigent client.

In practice

Under this opinion, and under the rules as they stood in 2006, the controlling distinction is retained versus appointed, and, for retained clients, whether copying costs were disclosed up front. The opinion holds that a retained lawyer may pass copying costs to the client only under an express fee-agreement term agreed at the outset; otherwise the client owns the file and the lawyer bears the cost. For indigent appointed clients, the opinion holds the lawyer may not charge any supplemental copying fee for needed materials, because that shifts the burden of adequate representation onto a client who cannot pay and has no choice, contrary to WRPC 1.5, 1.4, and 1.15. The committee declined to opine on the Criminal Rules, treating any limits they impose (such as redaction requirements) as outside its authority.

Common questions

Q: Can a retained lawyer make the client prepay copying and redaction costs for the file?

A: Only if the fee agreement says so. The committee concluded a retained lawyer may shift those costs only under an express term entered at the start of the representation; otherwise the file belongs to the client and the lawyer bears the cost.

Q: Can the lawyer refuse to give the client a copy of the file?

A: No, subject only to limits imposed by other law such as the Criminal Rules. The committee said information necessary to adequate representation, or in the file at the end of the representation, must be turned over to the client.

Q: Can an indigent appointed client be charged for copies?

A: No. The committee concluded that imposing a supplemental copying fee on an indigent appointed client would violate WRPC 1.5, 1.4, and 1.15, and that seeking supplemental payment from an indigent is unethical.

Q: Who bears the cost of representing an indigent client?

A: The committee said the obligation falls on the lawyer and on the appointment or contract terms, not on the indigent client, who has no control over the matter.

Background and rules framework

The opinion interprets several Washington rules as numbered in 2006: WRPC 1.4 (communication; the counterpart to Model Rule 1.4), 1.5 (fees; Model Rule 1.5), 1.6 (confidentiality; Model Rule 1.6), and 1.15 (declining or terminating representation, which in Washington's pre-revision numbering corresponded to Model Rule 1.16). It relies on the committee's Formal Opinion 181 on client files and on In re Discipline of Thomas Earl regarding supplemental payments from indigent defendants. The factual backdrop is the 2005 amendments to CrR 4.7(h)(3) and CrRLJ 4.7(g)(3), which the committee expressly declined to interpret.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.4 / Washington RPC 1.4 (communication)
• Model Rule 1.5 / Washington RPC 1.5 (reasonable fees and expenses)
• Model Rule 1.6 / Washington RPC 1.6 (confidentiality)
• Model Rule 1.16 / Washington RPC 1.15 (declining or terminating representation, as numbered in 2006; later renumbered)

Court rules referenced:

• CrR 4.7(h)(3); CrRLJ 4.7(g)(3) (custody of discovery materials; the committee declined to interpret these)

Other opinions cited:

• WSBA Formal Opinion 181 (client files; cost-shifting for copies)
• In re Discipline of Thomas Earl, Disciplinary Board proceeding 01-00065 (Nov. 24, 2003) (supplemental payment from an indigent defendant)

See also

• WA Ethics Op. 1114: Files on Withdrawal vs. CrR 4.7
• WSBA Ethics Op. 1201: Appointed Defense Counsel's Duties
• WSBA Ethics Op. 1176: Possessory Lien on a Client File

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=1564

Original opinion text

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

Advisory Opinion: 2117
Year Issued: 2006
RPC(s): RPCs 1.4, 1.5, 1.6, & 1.15
Subject: Rules regarding copies of discovery especially in re:indigent clients

I. The Questions Presented The inquiring lawyer wants to know his ethical obligations with regard to criminal defense practice under the 2005 Amendments to Superior Court Criminal Rules CrR 4.7(h)(3) and the equivalent rule in Courts of Limited Jurisdiction CrRLJ 4.7(g)(3). These rules provide in relevant part:

CrR 4.7(h)(3) (h) Regulation of Discovery.

(3) Custody of Materials. Any materials furnished to an attorney pursuant to these rules shall remain in the exclusive custody of the attorney and be used only for the purposes of conducting the party`s side of the case, unless otherwise agreed by the parties or ordered by the court, and shall be subject to such other terms and conditions as the parties may agree or the court may provide. Further, a defense attorney shall be permitted to provide a copy of the materials to the defendant after making appropriate redactions which are approved by the prosecuting authority or order of the court.

(g) Regulation of Discovery.

(3) Custody of Materials. Any materials furnished to a lawyer pursuant to these rules shall remain in the exclusive custody of the lawyer and be used only for the purposes of conducting the party`s side of the case, unless otherwise agreed by the parties or ordered by the court, and shall be subject to such other terms and conditions as the parties may agree or the court may provide. Further, a defense lawyer shall be permitted to provide a copy of the materials to the defendant after making appropriate redactions which are approved by the prosecuting authority or order of the court.

The queries from the lawyer in response to these rule changes are:

1. May a retained lawyer condition providing a copy of discovery upon prior payment by the client for the copying cost and the labor of redaction? 2. May a retained lawyer decline a request to produce a copy? 3. May a retained lawyer decline to produce a copy of the discovery for a client or condition its production upon the payment of the cost by the client if the client’s request for the copy comes after the criminal case has been completed? 4. Is the answer to any of these questions different in appointed cases where a government entity is paying the lawyers to represent an indigent defendant?

II. Analysis

The Rules of Professional Conduct Committee does not interpret or analyze rules other than the Rules of Professional Conduct. We can not express opinions on the application of the Criminal Rule cites generally. Assuming that the lawyer representing the client determines that either the discovery or unredacted portions of it are required to be turned over to the client in order to adequately represent the client, the Committee believes that the application of WRPC 1.4, 1.5, 1.6, and 1.15 do provide an answer to the questions submitted.

WRPC 1.4 requires adequate communication for the client to make informed decisions about the case pursuant to WRPC 1.2 and to facilitate the representation of the client in the defense of a criminal case. WRPC 1.5 provides the standards applicable for reasonable fees including payment of costs for copying and related expenses as interpreted in the Washington State Bar Association’s Formal Opinion 181. WRPC 1.6 requires that the attorney maintain confidences and secrets required during the representation and has a corollary duty not to use confidences or secrets to the disadvantage of the client including withholding relevant information which the client needs to have for the client’s purposes. WRPC 1.15 provides the standards for withdrawal, either during the course of the representation or at its conclusion. In criminal cases, particularly, the likelihood of the availability of subsequent review by appeal, post-judgment motion and/or personal restraint petitions/habeas corpus requires that a lawyer treat the file consistent with Formal Opinion 181 including material in the file covered by the Criminal Rule Amendments, supra.

Question 4 is where the analysis of the inquirer begins. The relationship of a retained counsel to their client in a criminal case is different than the relationship of an appointed counsel to an indigent client. Retained counsel consistent with WRPC 1.5 may shift the cost of copying any materials in the client’s file, including discovery to the client at the conclusion of the retained lawyer’s representation of the client. See Formal Opinion 181. In order to do so, however, the original fee agreement must contain an express term which informs the client that at the end of representation, copying or duplication costs for the client to obtain their file will be borne by the client. This provision must be entered into at the beginning or shortly after the beginning of the representation under WRPC 1.5. If there is no such provision, the file, in its entirety, belongs to the client, subject only to the limited exceptions contained in the formal opinion and copying cost must be born by the attorney since the original file belongs to the client either upon request or ending of the representation. The premise is that at the beginning of the representation a client who is unhappy with bearing the cost of copying of any materials in their files when they ask for the file at the end of the negotiation, can either negotiate that cost or seek other lawyers who would not impose such a requirement.

Indigents by definition have been determined unable to obtain counsel except at public expense because of their poverty. An appointed counsel, whether done via contract with an appropriate governmental authority to provide indigent services, or by direct appointment on a particular case, is not dealing with a client who has the choice to go out and compete on the open market of attorneys to find a lawyer who will not require the client to pay a fee for the representation. Further, it is unethical for a court-appointed counsel to seek supplemental payment from an indigent they have been assigned to defend. See Disciplinary Decision In Re Discipline of Thomas Earl (See Disciplinary Board proceeding 01-00065, filed Nov. 24, 2003). Once indigence has been determined, the obligation of the attorney who has agreed to accept appointment or assignment of the case is not to impose additional cost upon the indigent.

Assuming the indigent client requires the material referred to in the Criminal Rules, separately imposing a copying cost on the indigent to obtain it, would violate WRPC 1.5, and in some circumstances WRPC 1.4. At the conclusion of representation, whether by completing the agreed representation, by being fired, or by withdrawing, the obligation of the attorney is turn the file over to the client. An indigent in such circumstances cannot be changed a supplemental fee in order to obtain the materials in their files. Such a fee would violate WRPC 1.15 as well as WRPC 1.5.

III. Response

Turning now to the questions submitted by the inquirer:

1. May a lawyer condition providing a copy of the client file upon prior payment by the client for the copying cost and the labor of redaction?

Only if it is a retained case and the retainer agreement contains such a clause entered into at the beginning of representation or shortly thereafter while the client still has an option to consider other representation. For an indigent representation, the answer is no.

2. May a lawyer decline a request from the client or a former client to produce a copy of the file regardless of the cost?

The answer would be “no” subject only to the restrictions of the Criminal Rules, including Cr 4.7 h (3) and CrLJ 4.7 g (3), upon which The Rules of Professional Conduct Committee does not opine as beyond the scope of our authority. Ethically, however, any information necessary to the adequate representation of the client or in the file at the conclusion of the representation must be turned over to the client subject only to other law restrictions, such as the Criminal Rules.

3. Is the answer to any of these case questions different in appointed cases where a government entity is paying the lawyers to represent an indigent defendant?

Lastly, for indigent clients, the obligation to provide adequate compensation to the attorney to cover the necessarily included costs of representation falls upon the attorney and/or the contract or in negotiating the terms of either appointment or contractual payment for providing indigent representation. Attempts by indigent counsel or contractors for indigent services to obtain additional contributions from indigent clients are unethical because such efforts shift the burden of adequate representation and adequate payment to the indigent who has no control and can not pay. It shifts the burden from the attorney who has the obligation to provide competent and ethical representation under WRPC 1.1, 1.2, 1.4, 1.5, and 1.15 to the indigent who has no control over such matters and no choice.