Ethics and the Law: How Much Discovery Does a Client Get?

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There continues to be confusion about discovery duties and what information defense counsel can share with her/his client.

Texas Code of C Procedure Article 39.14 (f) READS:

The attorney representing the defendant, or an investigator, expert, consulting legal counsel, or agent for the attorney representing the defendant, may allow a defendant, witness, or prospective witness to view the information provided under this article, but may not allow that person to have copies of the information provided, other than a copy of the witness’s own statement.

Essentially, you can share the discovery with your client by letting them read it, but you cannot give copies to the client unless you have permission from judge or th prosecutor. Many bad things happen when discovery is found in a client’s jail cell or his gang leader’s home after a search warrant’s execution.

While prosecutors make up their own minds and give what they think is discoverable and material, you have an obligation to your client to ensure the prosecutors follow all the rules. You should report prosecutorial non-compliance to the trial court and seek aid there.  Additionally, you have an obligation to report prosecutorial non-compliance to the State Bar’s Office of Chief Disciplinary Counsel.

The State Bar’s Professional Ethics Committee’s Opinion No. 657, May 2016 presented these questions:

  1. What documents and information must be delivered by a lawyer to a former client convicted of a criminal offense when requested by that former client?
  2. Who bears the costs of delivering the documents and information to the former client?
  3. In what form must the documents and information be delivered?

Read this opinion to get the answers. The opinion can be found online at http://law.uh.edu/libraries/ethics/Opinions/601-700/EO657.pdf. If you have questions, please call the Ethics Hotline at 512-646-2734.

TCDLA
TCDLA
Robert Pelton
Robert Pelton
Robert Pelton is the former President of the Harris County Criminal Lawyers Association (HCCLA), Associate Director for TCDLA, and Feature Articles Editor of the Voice, as well as serving as editor and assistant editor of Docket Call. Among his many honors, Robert was named by H Texas magazine as one of the top criminal lawyers in Harris County (2004–2010) and one of Houston’s Top Lawyers for the People in criminal law (2004–2010), and he is listed in the Martindale Hubbell Bar Register of Preeminent Lawyers. Robert has offices in Abilene and Houston.
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