D.A.’s Discovery Policy Conflicts with Rules of Professional Responsibility

A recent post by Houston lawyer Mark Bennett and an unrelated discussion among some of my local colleagues last week got me to thinking about a potential conflict that affects criminal defense attorneys in Travis County. The issue arises if we obtain a copy of the offense report before trial and the client later asks for a copy of it.

As a practical matter, reviewing the offense report is generally necessary in order to negotiate an appropriate pretrial resolution, make informed decisions about whether or not to go to trial, and prepare a defense, which the defendant is supposedly entitled to by law. But in Texas, defense counsel isn’t entitled to obtain a copy of the offense report until trial. Thus, district attorneys can and often do put conditions on pretrial disclosure and there’s a pretty big range in policies from one jurisdiction to another. Some D.A.s are extraordinarily draconian in this area and at least one is exceptionally enlightened.

The Travis County District Attorney’s new policy is somewhere in the middle and requires defense attorneys to sign an agreement that, among other things, prohibits them from giving copies of the offense report to their clients. The rationale seems to be that the reports sometimes contain sensitive information that might jeopardize the safety or privacy of witnesses. The situations where there are real safety or privacy concerns that outweigh the accused’s interest in knowing the evidence against him are relatively rare, in my opinion, but I can certainly understand why the state might want to limit disclosure where, for example, the defendant is known to be dangerous and vindictive, the allegations are very serious, and a witness’s home address is not already known or readily available to him.  Then again, problems like that can probably be fairly easily remedied by redacting the sensitive information, but I digress.

Whether justified on a global level or not, the D.A.’s policy is what it is and criminal defense attorneys who practice in this jurisdiction must sign the agreement if we want to effectively represent our clients. A sticky issue can arise, however, when a client asks for the lawyer’s file and it contains a copy of an offense report that was obtained pursuant to the D.A.’s discovery agreement. In that situation, the D.A.’s non-disclosure requirement directly contradicts the attorney’s duty under the applicable rules of professional responsibility. The client is deemed to be the actual owner of the file and the lawyer is not generally entitled to withhold any part of it (see Ethics Opinion 570 for a nice overview of the applicable rules, caselaw, and very limited exceptions; thanks to Mark Bennett for pointing me to it).

Lawyers that I’ve talked to about this issue have varying opinions about the right way to handle the dilemma. Some say you should refuse to hand over the offense report; others say you should breach the discovery agreement. I don’t think there’s a clearly correct answer–you’re damned if you do and damned if you don’t. But my inquiries made one thing quite clear–my fee agreement needed (and now has) a new provision that acknowledges the D.A.’s discovery policy and waives any conflicting claim that the client might otherwise have to materials obtained under it.

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