In the extreme circumstances in which a lawyer is reasonably concerned that by providing a tangible copy of certain documents to an incarcerated client, the safety of the client or a third person may be jeopardized, the lawyer may ethically retain the documents and refuse to allow the incarcerated client to possess the documents during the representation. The lawyer must still fully inform the client as to the contents of the documents, discuss information contained in the documents with the client, and explain the lawyer’s rationale for wanting to retain possession of the documents. If the client cannot be persuaded to allow the lawyer to retain physical possession of the documents, the lawyer may ethically retain possession of the documents to protect the client’s safety or the safety of a third person, over the client’s objection.
A client (“Client”) is incarcerated for alleged criminal offenses. Client has requested that Client’s lawyer (“Lawyer”) provide Client with certain documents from Client’s file. Lawyer is concerned that if Lawyer provides the requested documents to the incarcerated Client, the documents will be viewed by or become known to other inmates, thereby jeopardizing the physical safety of either the Client or third persons. Client does not have diminished capacity.
Lawyer has shared the information in the documents with Client, having had an interpreter read them verbatim to Client. Lawyer also has shown the actual documents to Client. Lawyer has explained the contents of the documents thoroughly to Client and discussed Lawyer’s concern that if the Client possesses the actual documents while incarcerated, the documents may fall into the wrong hands, thus placing the physical safety of the Client and/or third persons at risk. Client nonetheless demands that Lawyer leave the actual documents with Client. Lawyer attempts to resolve the disagreement by requesting the Court’s permission to withdraw. The Court denies Lawyer’s request.
Must the lawyer deliver the documents to the incarcerated client? May the lawyer ethically retain possession of the documents at issue and refuse to provide the originals or copies to the client?
RELEVANT ARIZONA RULES OF PROFESSIONAL CONDUCT (“ER __”)
ER 1.2. Scope of Representation and Allocation of Authority between Client and Lawyer
(a) Subject to paragraphs (c) and (d), a lawyer shall abide by a client's decisions concerning the objectives of representation and, as required by ER 1.4, shall consult with the client as to the means by which they are to be pursued. * * * A lawyer may take such action on behalf of the client as is impliedly authorized to carry out the representation.
ER 1.4. Communication
(a) A lawyer shall:
* * *
(2) reasonably consult with the client about the means by which the client's objectives are to be accomplished;
(3) keep the client reasonably informed about the status of the matter;
(4) 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.
* * *
ER 1.15 Safekeeping Property
(d) * * * Except as stated in this Rule or otherwise permitted by law or by agreement between the client and the third person, a lawyer shall promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive and, upon request by the client or third person, shall promptly render a full accounting regarding such property.
ER 1.16 Declining or Terminating Representation
* * *
(b) Except as stated in paragraph (c), a lawyer may withdraw from representing a client if:
(1) withdrawal can be accomplished without material adverse effect on the interests of the client;
* * *
(4) the client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement;
* * *
(c) A lawyer shall comply with applicable law requiring notice to or permission of a tribunal when terminating a representation. When ordered to do so by a tribunal, a lawyer shall continue representation notwithstanding good cause for terminating the representation.
(d) Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering documents and property to which the client is entitled and refunding any advance payment of a fee that has not been earned. Upon the client's request, the lawyer shall provide the client with all of the client's documents. * * *
OTHER RELEVANT AUTHORITIES
Utah State Bar Ethics Advisory Op. 06-04 (December 8, 2006); Virginia State Bar Standing Committee on Legal Ethics LEO 1864 (October 24, 2012); The RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS; N. Dak. R. Prof. Conduct 1.4, cmt. .
The Arizona Rules of Professional Conduct (“ERs”) provide that the client, not the lawyer, determines the objectives of his or her lawyer’s representation and the lawyer must abide by a client’s decision regarding those objectives. See ER 1.2(a). Lawyers normally determine how those objectives are to be accomplished, but ER 1.4(a)(2) requires the lawyer to consult with the client about the means by which the client’s objectives are to be pursued. The lawyer may take such action on the client’s behalf as is impliedly authorized to carry out the representation. See ER 1.2(a).
Subsections (3) and (4) of ER 1.4(a) require that a lawyer keep a client reasonably informed about the status of the matter and promptly comply with a client’s reasonable requests for information. Additionally, a lawyer must explain matters to his or her client to the extent reasonably necessary to permit the client to make informed decisions regarding the representation. Once that informed decision is made, a lawyer is required to abide by the client’s decision with respect to the objectives of the representation.
Under normal circumstances, and within the confines of the ERs, a lawyer should abide by the client’s wishes with respect to the means through which the client’s objectives are accomplished.
If the client and the lawyer disagree as to the means by which the client’s objectives are to be accomplished, or concerning a client’s request for information documents, the lawyer should seek a mutually acceptable resolution of the disagreement through consultation with the client. If those efforts fail, the lawyer may seek to withdraw, but if the court will not permit withdrawal, or the lawyer may not ethically accomplish withdrawal in compliance with ER 1.16(b), withdrawal is not an option for the lawyer. In the limited circumstances presented in this opinion, the lawyer may also continue the representation and withhold physical possession of the documents at issue over the client’s objection.
Of course, the client may discharge the lawyer at any time, and could elect to do so if a lawyer withholds documents over the client’s objection. On termination of the engagement, a lawyer must surrender all documents and property to which a client is entitled. Upon the client’s request, “the lawyer shall provide the client with all of the client’s documents.” See ER 1.16(d). If a successor lawyer has been appointed or retained, the requirements of ER 1.16(d) can be met by providing the client’s documents to the successor lawyer. In criminal matters in which the client has been convicted or remains incarcerated after the representation ends, the client’s file often is transferred to appellate counsel or into the custody of legal authorities.
The facts presented here indicate that Lawyer has kept Client fully informed about Client’s matter, including sharing the information contained in the documents in question verbatim (in this case through a translator) and explaining to Client the significance of those documents. Lawyer has also explained the potential legal ramifications of the documents and discussed with Client the concern that Client’s safety and/or the safety of third persons could be jeopardized if Client were to physically possess the actual documents. Lawyer has no reason to suspect or believe that Client suffers from any diminished capacity or inability to appreciate the significance of Lawyer’s advice. Client has thus been fully advised to the extent necessary for Client to make informed decisions regarding the representation.
In Lawyer’s professional judgment, Client’s physical safety, or the safety of third persons, will be jeopardized if Lawyer delivers the actual documents to the incarcerated Client. Lawyer has thus determined that it is necessary, in order to protect Client’s safety and/or the safety of a third person, to retain the actual documents rather than releasing them to the incarcerated client, even though Client disagrees and still demands to possess the documents at issue.
Criminal defense counsel often encounter circumstances in which they reasonably believe that their clients’ safety, or the safety of a third person, will be jeopardized if the clients are permitted to possess actual documents that are part of the clients’ files. It is not uncommon that a client, otherwise fully informed as to the contents of certain documents, demands copies of those documents even against advice of his or her counsel. Ethical Rule 1.4 requires that lawyers keep clients reasonably informed about the status of their matters, and promptly comply with reasonable requests for information. The Rule does not explicitly require lawyers, during the representation, to provide their clients with actual copies of documents, as long as he or she promptly complies with reasonable requests for information and explains matters sufficiently for the client to make informed decisions about the representation.
Other authorities provide that in certain circumstances a lawyer may ethically exercise discretion to withhold documents – not information – from competent clients. The RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS explicitly provides an exception to the presumption that clients are entitled to possess the entirety of documents in their files: “On request, a lawyer must allow a client or former client to inspect and copy any document possessed by the lawyer relating to their representation unless substantial grounds exist to refuse (emphasis added). See RESTATEMENT §§ 46(2)(2000). Little guidance is given with respect to what constitutes “substantial grounds.”1 Likewise, the RESTATEMENT Section 46 cmt. [c] states that a lawyer may refuse to disclose documents to the client “[u]nder conditions of extreme necessity” for the client’s own benefit. The comment does not define “extreme necessity” but limits those circumstances to those impacting the client’s own benefit.
A Virginia State Bar ethics opinion has addressed whether a criminal defense lawyer, as a condition to the prosecutor’s disclosure of certain sensitive materials, may ethically agree that she will not allow her client to physically possess the materials and will return them to the prosecutor at the end of the case. See Virginia State Bar Standing Committee on Legal Ethics LEO 1864 (October 24, 2012). The agreement at issue authorized the defense lawyer to show the materials to her client but stated that she could not provide her client with a copy of the materials. It also required that the defense lawyer not make the sensitive materials a part of the client’s file, so that she would not be required to surrender them to the client when the representation ended.
The Virginia opinion opined that the lawyer would not violate ER 1.4 by entering into the discovery agreement because she could still fully inform the client by exhibiting and discussing the materials: “Rule 1.4 does not require that the lawyer provide copies of any of these materials, even upon request of the client.”
While the Restatement and the Virginia opinion are limited to withholding certain documents, Utah State Bar Ethics Advisory Op. 06-04 (December 8, 2006) concludes that lawyers may ethically restrict a current or former client’s access to information in a criminal matter. That a lawyer may withhold information from a client whose request may be viewed as “unreasonable” is implied, the opinion reasons, from the language of Rule 1.4(a)(3) and (a)(4), and supported by Comment 7. Utah’s version of those sections is identical to Arizona’s version. In reaching its conclusions, the Utah opinion emphasizes the general rule that unless “exceptional circumstances apply,” a lawyer must provide the client with a full copy of the file or documents within the file, at the client’s request. A lawyer who decides to restrict client access to documents or information “needs to proceed cautiously in this area with the perceived harm to the client being clearly identified and reasonably certain.” The opinion also cautions that if the lawyer withholds information, “it is incumbent on the lawyer to make full disclosure . . . of the materials withheld, the basis for withholding the information and the harm avoided or client interest being protected or advanced.” Finally, the Utah opinion notes that if the client disagrees with the lawyer’s judgment, the client can terminate the representation, triggering the requirements of ER 1.16(d).
North Dakota addresses the issue more directly. Its comment to Rule 1.4 allows a lawyer to delay or withhold information when the lawyer “reasonably believes the disclosure of certain information to a client would have a high probability of resulting in substantial harm to a client or others,” but only to the extent reasonably necessary to avoid the harm. See N. Dak. R. Prof. Conduct 1.4, cmt. .
The facts presented here do not require the Committee to consider whether a lawyer may ethically restrict or withhold information, as opposed to actual documents, from his or her client. This opinion does not address that issue and its conclusions are limited to the facts presented above. Additionally, this opinion does not address the other circumstances in which a lawyer may be entitled to withhold documents or information from a client under ER 1.2(d), if the lawyer knows that material in a client file will be used to assist the client in criminal or fraudulent conduct.
Finally, under ER 1.16, after the termination of an attorney-client relationship the lawyer must surrender all documents and property to which the client is entitled, and on request, provide the client “all of the client’s documents.” ER 1.16(d). What constitutes the “client file” is broadly defined in Arizona; it includes virtually all documents received or generated in connection with the representation, excepting only “internal practice memoranda” from the items that must be surrendered on a client’s request. See Comment 9, ER 1.16.2
As a general rule, criminal clients are entitled to obtain copies of documents in their files upon request, unless such information is otherwise restricted from disclosure by court order. A criminal lawyer may, in extreme circumstances, ethically retain possession of certain documents and refuse to relinquish those documents to an incarcerated client if he or she reasonably believes it is likely that the client’s safety or the safety of third persons would be jeopardized if the client were to possess the documents. In all such cases, the lawyer must still comply with ER 1.4 by sharing with the client all information reasonably necessary for the client to make informed decisions about the case. The lawyer must also share the contents of the documents at issue with the client, discuss the lawyer’s concerns, and explain the lawyer’s rationale for wishing to withhold possession of the actual documents from the incarcerated client.
As long as the lawyer has kept the client informed about the client’s matter by sharing the contents of any such documents with the client and explaining the information sufficiently for the client to make informed decisions about his or her case, if the incarcerated client still insists on possessing the actual documents, the lawyer may ethically decide to retain them and not deliver the documents at issue to the client.
This is a limited exception to the presumption that a client is entitled to the entirety of his or her file. It applies only when the lawyer believes that the safety of the client or a third person would otherwise be jeopardized.
1The Restatement offers an example similar to that in ER 1.4, cmt. , that a lawyer may withhold a psychiatric diagnosis if the client’s psychiatrist indicates that disclosure would harm the client.
2As a practical matter, this rule does not always apply in criminal cases, where at the end of the representation the client file is often provided to an appellate attorney or the Department of Corrections. Additionally, court orders may bar disclosing certain sensitive information to the client, which would override the requirements of ER 1.16(d).
Formal opinions of the Committee on the Rules of Professional Conduct
are advisory in nature only and are not binding in any disciplinary
or other legal proceeding. This opinion is based on the Ethical Rules in effect on the date the opinion was published. If the rule changes, a different conclusion may be appropriate.
(c) State Bar of Arizona 2013