Proposed Opinions

Council Actions

At its meeting on July 25, 2014, the State Bar Council adopted the ethics opinions summarized below:

2013 Formal Ethics Opinion 8
Responding to the Mental Impairment of Firm Lawyer

Opinion analyzes the responsibilities of the partners and supervisory lawyers in a firm when another firm lawyer has a mental impairment.

2013 Formal Ethics Opinion 12
Disclosure of Settlement Terms to Former Lawyer Asserting a Claim for Fee Division

Opinion rules that, in a workers’ compensation case, when a client terminates representation, pursuant to an applicable exception to the duty of confidentiality, the subsequently hired lawyer may disclose the settlement terms to the former lawyer to resolve a pre-litigation claim for fee division.

2014 Formal Ethics Opinion 4
Serving Subpoenas on Health Care Providers Covered by HIPAA

Opinion rules that a lawyer may send a subpoena for medical records to an entity covered by HIPAA without providing the assurances necessary for the entity to comply with the subpoena as set out in 45 C.F.R. § 164.512(e)(ii).

2014 Formal Ethics Opinion 5
Advising a Civil Litigation Client About Social Media

Opinion rules a lawyer must advise a client about information on social media if information and postings on social media are relevant and material to the client’s representation. The lawyer may advise a client to remove information on social media if not spoliation or otherwise illegal.

2014 Formal Ethics Opinion 6
Duty to Avoid Conflicts When Advising Members of Nonprofit Organization

Opinion rules that a lawyer who provides free brief consultations to members of a nonprofit organization must still scren for conflicts prior to conducting a consultation.

Ethics Committee Actions

At its meeting on July 24, 2014, the Ethics Committee voted to send the following proposed opinion to a subcommittee for continued study: Proposed 2013 FEO 14, Representation of Parties to a Commercial Real Estate Loan Closing. The committee also voted to publish a proposed substitute opinion for 2013 FEO 2, Providing Defendant with Discovery During Representation, an opinion that was adopted by the State Bar Council on January 24, 2014. Although the committee declined to recommend withdrawal of the existing opinion at this time, it is publishing the proposed substitute opinion to garner comment from members of the bar. On page 46 of the Fall 2014 Journal the Legal Ethics column considers the competing concerns addressed in the adopted opinion and the proposed substitute opinion which are printed, in their entirety, after the article. (See the article here.) The Ethics Committee also voted to publish a revised version of one proposed opinion and three new proposed opinions. The comments of readers on the proposed opinions are welcomed.

Proposed 2014 Formal Ethics Opinion 1
Protecting Confidential Client Information When Mentoring
July 24, 2014

Proposed opinion examines issues relative to confidentiality and the attorney-client privilege when mentoring law students and lawyers.

Note: This opinion does not apply to law students certified pursuant to the Rules Governing the Practical Training of Law Students (27 N.C.A.C 1C, Section .0200) or to lawyers, employees, or law clerks (paid or volunteer) being mentored or supervised by a lawyer within the same firm. This opinion addresses issues pertaining to informal mentoring relationships between lawyers, or between a lawyer and a law student, as well as to established bar and/or law school mentoring programs. Mentoring relationships between a lawyer and a college or a high school student are not addressed by this opinion because such relationships require more restrictive measures due to these students’ presumed inexperience and lack of understanding of a lawyer’s professional responsibilities, particularly the professional duty of confidentiality.

Inquiry #1:

May a lawyer who is mentoring a law student allow the student to observe confidential client consultations between the lawyer and the lawyer’s client?

Opinion #1:

Yes. The lawyer may allow the law student to observe the consultation so long as the student signs a confidentiality agreement and the lawyer’s client gives his or her informed consent, confirmed in writing.

Rule 1.6(a) of the Rules of Professional Conduct provides that a lawyer shall not reveal information acquired during the professional relationship with a client unless (1) the client gives informed consent; (2) the disclosure is impliedly authorized; or (3) one of the exceptions set out in Rule 1.6(b) applies. “Informed consent” is defined by Rule 1.0(f) as denoting “the agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation appropriate to the circumstances.”

Relevant to mentoring scenarios is the potential waiver of the attorney-client privilege that can occur when communications between the lawyer and the client take place in the presence of a third party. The attorney-client privilege prohibits a lawyer from testifying as to confidential communications between the lawyer and the client for the purpose of legal representation. State v. McIntosh, 336 NC 517, 523, 444 S.E.2d 438, 441 (1994).

It is important to note the distinction between the duty of confidentiality set out in Rule 1.6 of the Rules of Professional Conduct and the attorney-client privilege. Although the concepts of confidentiality and attorney-client privilege are often used interchangeably, privilege applies to a much narrower category of client information. A privilege exists if (1) the relation of attorney and client existed at the time the communication was made, (2) the communication was made in confidence, (3) the communication relates to a matter about which the attorney is being professionally consulted, (4) the communication was made in the course of giving or seeking legal advice for a proper purpose although litigation need not be contemplated, and (5) the client has not waived the privilege. McIntosh, 336 NC at 523-24, 444 S.E.2d at 442. Because the representation of a client typically includes many activities that are not confidential communications between a client and a lawyer, there are many opportunities for a mentee to observe a lawyer/mentor without implicating the attorney-client privilege. (Examples include: real estate closings, court proceedings, witness interviews, etc.)

The privilege is fundamental to the client-lawyer relationship and the trust that underpins that relationship. To seek the client’s informed consent, the lawyer must research the law relating to the attorney-client privilege and explain to the client what effect the law student’s presence during the consultation may have on the attorney-client privilege including a potential waiver of the privilege. The lawyer must also explain any other adverse effect on the client’s interests. ABA Standing Comm. on Ethics and Prof’l Resp., Formal Op. 98-411(1988). The lawyer must not ask for consent unless, in his professional opinion, either the attorney-client privilege will not be waived by the presence of the law student or a potential waiver of the attorney-client privilege will cause minimal, or no, detriment to the client’s interests such that to ask for consent is reasonable.

Pursuant to Rule 1.0(c), “confirmed in writing” in this context “denotes informed consent that is given in writing by the person or a writing that a lawyer promptly transmits to the person confirming an oral informed consent.”

The issues addressed in this opinion as to the potential waiver of the privilege are limited to mentoring scenarios where a law student/new lawyer/mentee is observing a communication between the lawyer and the lawyer’s client but is not participating in the representation as co-counsel or as an agent of the representing lawyer.

Inquiry #2:

If a lawyer is mentored by a lawyer in a different law firm, do the requirements in Opinion #1 apply when the lawyer-mentee observes a client consultation between the lawyer-mentor and a client or when the lawyer-mentor observes the lawyer-mentee conducting such a consultation with his client?

Opinion #2:

Yes. The lawyer conducting the consultation must evaluate the effect of the observing lawyer’s presence on the attorney-client privilege. If the lawyer concludes that, in his professional opinion, either the attorney-client privilege will not be waived by the presence of the other lawyer, or a potential waiver of the attorney-client privilege will cause minimal or no detriment to the client’s interests such that to ask for consent is reasonable, the lawyer may ask the client to consent to the observation. The lawyer must obtain the client’s informed consent confirmed in writing.

The lawyer conducting the consultation must also obtain an agreement from the observing lawyer to maintain the confidentiality of the information as well as an agreement that the observing lawyer will not engage in adverse representations. Rule 1.7 and Rule 1.9.

Both lawyers should check for conflicts of interest in advance of the consultation. Rule 1.7 and Rule 1.9.

Inquiry #3:

When a lawyer seeks advice from a lawyer-mentor on the representation of a client of the lawyer, what actions should be taken to protect confidential client information?

Opinion #3:

If possible, the lawyer should try to obtain guidance without disclosing identifying client information, which can be done by using a hypothetical. If the consultation is general and does not involve the disclosure of identifying client information, no client consent is necessary and the lawyers do not have to comply with the requirements set out in Opinion #2.

If the consultation is intended to help the lawyer-mentee comply with the ethics rules, no client consent is necessary and the lawyers do not have to comply with the requirements set out in Opinion #2. Rule 1.6(b)(5) provides that a lawyer may reveal protected client information to the extent the lawyer reasonably believes necessary “to secure legal advice about the lawyer's compliance with [the Rules of Professional Conduct].” Pursuant to Comment [10] to Rule 1.6:

A lawyer's confidentiality obligations do not preclude a lawyer from securing confidential legal advice about the lawyer's personal responsibility to comply with [the Rules of Professional Conduct]. In most situations, disclosing information to secure such advice will be impliedly authorized for the lawyer to carry out the representation. Even when the disclosure is not impliedly authorized, paragraph (b)(5) permits such disclosure because of the importance of a lawyer's compliance with the Rules of Professional Conduct.

If the consultation does not involve advice about the lawyer’s compliance with the Rules of Professional Conduct, a hypothetical is not practical, or making the inquiry risks disclosure of information relating to the representation, the lawyer-mentee must comply with the requirements set out in Opinion #2.

Both the lawyer-mentee and the lawyer-mentor should avoid the creation of a conflict of interest with any existing or former clients by virtue of the mentoring relationship. For example, the lawyer-mentee should not consult with a lawyer he knows has represented the opposing party in the past without first ascertaining that the matters are not substantially related, and that the opposing party is not represented in the current matter by the lawyer-mentor. Similarly, the lawyer-mentor should obtain information sufficient to determine that the lawyer-mentee’s matter is not one affecting the interests of an existing or former client. Rule 1.7 and Rule 1.9.

Proposed 2014 Formal Ethics Opinion 7
Use of North Carolina Subpoena to Obtain Documents from Foreign Entity or Individual
July 24, 2014

Proposed opinion rules that a lawyer may provide a foreign entity or individual with a North Carolina subpoena accompanied by a statement/letter explaining that the subpoena is not enforceable in the foreign jurisdiction, the recipient is not required to comply with the subpoena, and the subpoena is being provided solely for the recipient’s records.

Editor's note: This opinion supplements and clarifies 2010 FEO 2, Obtaining Medical Records from Out of State Health Care Providers.

Inquiry #1:

In a state legal matter, a lawyer wishes to obtain documents from a medical provider or other entity that is not located in North Carolina and does not have a registered agent in the state (foreign entity). The lawyer contacts the foreign entity and requests the documents. The lawyer informs the foreign entity that the subpoena power set out in N.C. R. Civ. P. 45 does not extend to the foreign jurisdiction. The foreign entity indicates that it will comply with the request for documents upon the receipt of a North Carolina subpoena “for its records.”

May the lawyer provide the foreign entity with a North Carolina subpoena accompanied by a statement/letter explaining that the subpoena is not enforceable in the foreign jurisdiction and is provided to the entity solely for the entity’s records?

Opinion #1:

Yes. Rule 8.4(c) states that it is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit, or misrepresentation. RPC 236 provides that it is false and deceptive for a lawyer to use the subpoena process to mislead the custodian of documentary evidence as to the lawyer's authority to require the production of such documents. 2010 FEO 2 prohibits a lawyer’s use of a subpoena to request medical records under the authority of Rule 45 knowing that the North Carolina subpoena is unenforceable. 2010 FEO 2 explains that if “the North Carolina subpoena is not enforceable out of state, the lawyer may not misrepresent to the out of state health care provider that it must comply with the subpoena.”

RPC 236 and 2010 FEO 2 prohibit a lawyer from making misrepresentations to the subpoena recipient that the lawyer has the legal authority to issue the subpoena under Rule 45 or misleading the recipient as to whether compliance with the subpoena is required by law.

If the subpoena is accompanied by a statement/letter explaining that the subpoena is not enforceable in the foreign jurisdiction, the recipient is not required to comply with the subpoena, and the subpoena is being provided solely for the entity’s records, the lawyer has not made misrepresentations to, nor misled, the subpoena recipient. The subpoena recipient is aware that it cannot be compelled to comply with the subpoena and may determine whether to provide the requested documents voluntarily.

Inquiry #2:

Would the answer differ if the lawyer wishes to obtain the appearance and testimony of an individual over which the North Carolina court does not have in personam jurisdiction?

Opinion #2:

No. If an individual requests a North Carolina subpoena, knowing that the North Carolina court lacks in personam jurisdiction over the individual and the subpoena will not be enforceable, the lawyer may provide the individual with the subpoena, accompanied by a statement/letter explaining that the subpoena is not enforceable as to the individual and is being provided solely at the individual’s request.

Proposed 2014 Formal Ethics Opinion 8
Accepting an Invitation from a Judge to Connect on LinkedIn
July 24, 2014

Proposed opinion rules that a lawyer may accept an invitation from a judge to be a “connection” on a professional networking website, and may endorse a judge. However, a lawyer may not accept a legal skill or expertise endorsement or recommendation from a judge.

Facts:

Lawyer has a profile listing on LinkedIn, a social networking website for people in professional occupations. The website allows registered users (“members”) to maintain a list of contact details on their LinkedIn pages for people with whom they have some level of relationship via the website. These contacts are called “connections.” Members can invite anyone (whether a site user or not) to become a connection.

LinkedIn can be used to list jobs and search for job candidates, to find employment, and to seek out business opportunities. Members can view the connections of other members, post their photographs, and view the photos of other members. Members can post comments on another member’s profile page. Members can also endorse or write recommendations for other members. Such endorsements or recommendations, if accepted by the recipient, are posted on the recipient’s profile listing.

Inquiry #1:

May a lawyer with a professional profile on LinkedIn accept an invitation to connect from a judge?

Opinion #1:

Yes. Interactions with judges using social media are evaluated in the same manner as personal interactions with a judge, such as an invitation to dinner. In certain scenarios, a lawyer may accept a judge’s dinner invitation. Similarly, in certain scenarios a lawyer may accept a LinkedIn invitation to connect from a judge. However, if a lawyer represents clients in proceedings before a judge, the lawyer is subject to the following duties: to avoid conduct prejudicial to the administration of justice; to not state or imply an ability to influence improperly a government agency or official; and to avoid ex parte communications with a judge regarding a legal matter or issue the judge is considering. See Rule 3.5 and Rule 8.4. These duties may require the lawyer to decline a judge’s invitation to connect on LinkedIn.

Rule 8.4(d) provides that it is professional misconduct for a lawyer to “engage in conduct that is prejudicial to the administration of justice.” Rule 8.4(e) provides that it is professional misconduct for a lawyer to “state or imply an ability to influence improperly a government agency or official.” Lawyers have an obligation to protect the integrity of the judicial system and to avoid creating an appearance of judicial partiality. See 2005 FEO 1.

If a lawyer receives an invitation to connect from a judge during the pendency of a matter before the judge, and the lawyer concludes that accepting the invitation will impair the lawyer’s compliance with these duties, the lawyer should not accept the judge’s invitation to connect until the matter is concluded. The lawyer may communicate to the judge the reason the lawyer did not accept the judge’s invitation. Such a communication with the judge is not a prohibited ex parte communication provided the communication does not include a discussion of the underlying legal matter.

Rule 3.5 prohibits lawyers from engaging in ex parte communications with a judge. Because connected members can post comments on each other’s profile pages, the connection between a judge and a lawyer appearing in a matter before the judge could lead to improper ex parte communications. Therefore, while the lawyer has a matter pending before a judge, the lawyer may not use LinkedIn or any other form of social media to communicate with the judge about the pending matter.

Rule 8.4(f) provides that it is professional misconduct for a lawyer to “knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law.” To the extent that a judge is prohibited by the North Carolina Code of Judicial Conduct from participating in LinkedIn, or from sending invitations to connect to lawyers, a lawyer may not assist the judge in violating such prohibitions.

Inquiry #2:

May the lawyer send an invitation to connect to a judge?

Opinion #2:

Yes, subject to the limitations described in Opinion #1.

Inquiry #3:

A LinkedIn member has the option of displaying a “skills & expertise” section within his profile. A member can add items to the “skills & expertise” section of his profile page. In addition, some connections can add a new item to another member’s “skills & expertise” section, can “endorse” a skill or expertise already listed for the member, or write a recommendation for the member. A member who is being endorsed by another member will receive a notification containing the identity of the endorser and the specific skill or expertise that is being endorsed. The member may decline the endorsement entirely or choose the specific endorsements to be displayed. The endorsed member may also subsequently edit the “skills & expertise” section to “hide” selected endorsements. If a member endorses another member, and the endorsement is not declined by the recipient, the endorser’s name and profile picture will appear next to the skill on the endorsed member’s profile.

A recommendation is a comment written by a LinkedIn member to recognize or commend another member. When someone recommends a member, the recommended member will receive a message in the recommended member’s LinkedIn inbox and a notification on the member’s “Manage Recommendations” page. Recommendations are only visible to connections. A member can choose to hide a recommendation from the member’s profile, but cannot delete it. Recommendations written for others can be withdrawn or revised.

May a lawyer endorse a judge’s legal skills or expertise, or write a recommendation on the judge’s profile page?

Opinion #3:

Yes, subject to the limitations explained in Opinion #1.

Inquiry #4:

May a lawyer accept an endorsement or recommendation from a judge and display the endorsement or recommendation on his profile page?

Opinion #4:

No. Displaying an endorsement or recommendation from a judge on a lawyer’s profile page would create the appearance of judicial partiality and the lawyer must decline. See Rule 8.4(e).

Inquiry #5:

May a lawyer accept and post endorsements and recommendations on his LinkedIn profile page from persons other than judges?

Opinion #5:

Lawyers are professionally obligated to ensure that communications about the lawyer or the lawyer’s services are not false or misleading. See Rule 7.1(a). Provided that the content of the endorsement or recommendation is truthful and not misleading in compliance with the requirements of Rule 7.1, the lawyer may post endorsements and recommendations from persons other than judges on the lawyer’s LinkedIn profile page. See 2012 FEO 8.

Inquiry #6:

A lawyer previously accepted and displayed on his LinkedIn profile page an endorsement or recommendation from a lawyer who subsequently became a judge. Is the lawyer required to remove the endorsement or recommendation from the lawyer’s profile?

Opinion #6:

Yes. See Opinion #4.

Inquiry #7:

Do the holdings in this opinion apply to other social media applications such as Facebook, Twitter, Google+, Instagram, and Myspace?

Opinion #7:

The holdings apply to any social media application that allows public display of connections, endorsements, or recommendations between lawyers and judges.

Proposed 2014 Formal Ethics Opinion 9
Private Lawyer Supervision of Investigation Involving Misrepresentation
July 24, 2014


Proposed opinion rules that a private lawyer may supervise an investigation involving misrepresentation if certain conditions are satisfied.

Note: This opinion does not apply to the conduct of a government lawyer. As explained in comment [1] to Rule 8.4, the prohibition in Rule 8.4(a) against knowingly assisting another to violate the Rules of Professional Conduct or violating the Rules of Professional Conduct through the acts of another does not prohibit a government lawyer from providing legal advice to investigatory personnel relative to any action such investigatory personnel are lawfully entitled to take.

In addition, this opinion is limited to private lawyers who advise, direct, or supervise conduct involving dishonesty, deceit, or misrepresentation as opposed to a lawyer who personally participates in such conduct.

Inquiry:

Attorney A was retained by Client C to investigate and, if appropriate, file a lawsuit against Client C’s former employer, E. Employer E employed Client C as a janitor and required him to work 60 hours per week. E paid Client C a salary of $400 per week. Attorney A believes that because his client’s employment was a “non-exempt position” under the North Carolina Wage and Hour Act, the payment method used by E was unlawful. Instead, E should have paid Client C at least $7.25 (minimum wage) per hour for each of the first 40 hours Client C worked per week, and at least $10.88 (time and a half) for each hour in excess of 40 (overtime) that Client C worked per week.

Prior to filing a lawsuit, Attorney A wants to retain a private investigator to investigate E’s payment practices. The private investigator suggests using lawful, but misleading or deceptive tactics, to obtain the information Attorney A seeks. For example, the private investigator may pose as a person interested in being hired by E in the same capacity as Client C to see if E violates the North Carolina Wage and Hour Act when compensating the investigator.

Prior to filing a lawsuit, may Attorney A retain a private investigator who will misrepresent his identity and purpose when conducting an investigation into E’s payment practices?

Opinion:

Rule 8.4(c) provides that it is professional misconduct for a lawyer to “engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.” This prohibition is extended to third parties acting at the direction of a lawyer by Rule 8.4(a). However, the Rules of Professional Conduct are rules of reason. Rule 0.2, Scope. Therefore, not every act of dishonesty, deceit, or misrepresentation constitutes professional misconduct.

Other jurisdictions have interpreted their Rules of Professional Conduct to permit lawyer supervision of investigations involving misrepresentation in circumstances similar to that set out in the inquiry. For example, the bars of Arizona and Maryland permit lawyers to use “testers” who employ misrepresentation to collect evidence of discriminatory practices. Ariz. State Bar Comm. on the Rules of Prof’l Conduct, Op. 99-11 (1999); Maryland Bar Ass'n, Op. 2006-02 (2005). These ethics opinions conclude that testers are necessary to prove discriminatory practices and, therefore, serve an important public policy. The State Bar of Arizona opined that it would be inconsistent with the intent of the Rules of Professional Conduct to interpret the rules to prohibit a lawyer from supervising the activity of testers. Ariz. State Bar Comm. on the Rules of Prof’l Conduct, Op. 99-11 (1999).

The intent of Rule 8.4 is set out in comment [3] to the rule: “The purpose of professional discipline for misconduct is not punishment, but to protect the public, the courts, and the legal profession.” The challenge is to balance the public’s interest in having unlawful activity fully investigated and possibly thereby stopped, with the public’s and the profession’s interest in ensuring that lawyers conduct themselves with integrity and honesty. In an attempt to balance these two important interests, we conclude that a lawyer may advise, direct, or supervise an investigation involving pretext under certain limited circumstances.

A lawyer may advise, direct, or supervise the use of misrepresentation (1) in lawful efforts to obtain information on unlawful activity; (2) in the investigation of violations of criminal law, civil law, or constitutional rights; (3) if the lawyer’s conduct is otherwise in compliance with the Rules of Professional Conduct; (4) the lawyer has a good faith belief that there is a reasonable possibility that a violation of criminal law, civil law, or constitutional rights has taken place, is taking place, or will take place in the foreseeable future; (5) misrepresentations are limited to identity or purpose; and (6) the evidence sought is not reasonably and readily available through other means.

If Attorney A concludes that each of the conditions is satisfied, he may retain a private investigator to conduct an investigation into E’s payment practices which investigation may include misrepresentations as to identity and purpose.

Grappling with the Duty to Inform When a Client is Incarcerated

Imagine that you have been wrongly accused of a crime that is punishable by death. Because you are incarcerated, you have been forced to close down your law practice. With no income, you are unable to retain a private defense lawyer. Therefore, you are being defended by a court-appointed lawyer. Eager to learn what evidence the state has against you, you ask to see the discovery. Your lawyer reviews the discovery and provides you with his summary of the relevant discovery materials. Anxious and unsatisfied, you request the opportunity to review the complete discovery file. Do the Rules of Professional Conduct require your lawyer to comply with your request?

Now imagine that you have been court-appointed to represent a defendant in a capital case. While awaiting trial, the incarcerated defendant has had several amorous telephone conversations with his girlfriend, all of which have been recorded per prison regulations. The recordings are included in the discovery materials provided to you by the state. Your paralegal reviews the 17 plus hours of recordings and determines that they contain no information relevant to your client’s legal defense. After providing the defendant with your summary of the relevant discovery materials, the defendant requests the opportunity to personally review all of the discovery, including the recordings of the telephone conversations. It is not permissible to leave the discovery with the defendant in the jail. Therefore, one of your staff members will have to travel to the jail and sit with the defendant while he reviews the written discovery and listens to the recordings. Do the Rules of Professional Conduct require you to comply with the defendant’s request?

Rule 1.4 provides that a lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information. The two scenarios above demonstrate that what is “reasonable” may be in the eyes of the beholder.

A recently adopted ethics opinion attempts to give guidance to lawyers faced with such discovery review requests. Pursuant to 2013 FEO 2 (adopted 1/24/2014), if, after providing a criminal client with a summary of the discovery materials, the client requests access to the entire discovery file, the lawyer must afford the client the opportunity to review all of the “relevant” discovery materials unless the lawyer believes it is not in the best interest of the client’s legal defense to comply with the request. In determining what discovery materials are relevant, and what disclosure is in the best interest of the client’s legal defense, the lawyer must exercise his independent professional judgment.

The content of 2013 FEO 2 was, and continues to be, hotly debated. Some lawyers believe a criminal defense client is absolutely entitled to review everything in the client’s file. Other lawyers argue that a criminal defense lawyer has absolute discretion to determine what file materials to disclose to a criminal client. Rule 1.2 discusses the general allocation of authority between the lawyer and the client. The rule provides that a lawyer must abide by a client's decisions concerning the objectives of representation and, as required by Rule 1.4, shall consult with the client as to the means by which they are to be pursued. Comment [2] to Rule 1.2 notes that clients “normally defer to the special knowledge and skill of their lawyer with respect to the means to be used to accomplish their objectives, particularly with respect to technical, legal, and tactical matters.”

Query: Is a criminal defense lawyer’s decision on whether to provide a client with unlimited access to discovery materials a matter of trial strategy and judgment that ultimately lies within the lawyer’s discretion?

There are genuine concerns underlying the continuing discussion: the limited resources available to represent indigent defendants; the practical difficulties in providing discovery review to an incarcerated defendant; the sheer volume of discovery produced pursuant to open discovery laws; and the desire to provide equal access to justice to all criminal defendants.

2013 FEO 2 attempts to address these sometimes competing concerns in the context of a lawyer’s duties under the Rules of Professional Conduct. Of paramount importance in the drafting was the desire to craft an ethics opinion that did not differentiate a lawyer’s professional responsibilities to clients based on the client’s location or ability to pay for the lawyer’s services.

The Ethics Committee continued to debate 2013 FEO 2 even after its adoption. Given the importance of the issues addressed in the opinion, as well as the necessity for immediate guidance for criminal defense lawyers, the Ethics Committee took an unusual step at its meeting on July 24, 2014, by voting to publish for comment an alternative version of the opinion.

Without substantially changing the conclusions in 2013 FEO 2, the alternative proposed opinion emphasizes that, in determining what discovery materials are relevant and what disclosure is in the best interest of the client’s legal defense, the lawyer must exercise his or her independent professional judgment in the context of the critical decisions that are exclusively those of the criminal defendant. Under Rule 1.2(a)(1), the client in a criminal case has the authority to decide the “plea to be entered, whether to waive a jury trial, and whether [to] testify.” The opinion draws the connection between these decisions and the duty to keep the client reasonably informed and to respond to requests for information. The alternative proposed opinion states that a criminal defense lawyer complies with the requirement of Rule 1.4 to keep a client “reasonably informed” by providing the client with information sufficient to make these important decisions.

The two opinions also differ slightly as to the criteria for withholding relevant discovery from a criminal defense client. The adopted opinion provides that a lawyer may withhold relevant discovery if withholding the information is in the best interest of the client’s legal defense. The adopted opinion adds that the defense lawyer may redact information that would endanger the safety and welfare of the client or others, violate a court rule or order, or is subject to a protective order or nondisclosure agreement. The acceptable justifications for withholding relevant discovery in the alternative opinion are expanded to include discovery agreements and time constraints due to the volume of discovery and deadlines for trial or pleas.

Query: Does the adopted opinion allow more discretion to the lawyer because it does not specify the conditions under which a lawyer may withhold review of discovery from an incarcerated client, or is more specific guidance, as provided in the alternative opinion, preferable?

Comments on the adopted opinion as well as the alternative draft will be considered at the October ethics meeting.

Suzanne Lever is assistant ethics counsel for the North Carolina State Bar.

Providing Discovery to an Incarcerated Client

At its meeting on July 24, 2014, the Ethics Committee considered a motion to recommend that the State Bar Council withdraw existing ethics opinion 2013 FEO 4, which was adopted by the Council in January of this year, and to publish a proposed substitute opinion. The motion failed but a second motion, to publish the proposed substitute opinion for comment, passed. It was agreed that the existing opinion would be published together with the substitute so that members of the bar could compare and offer comment on whether the substitute, by providing additional or different guidance, should supersede the existing opinion. Comments are strongly encouraged and should be directed to the Ethics Committee at PO Box 25908, Raleigh, NC 27611, by September 30, 2014.

2013 FEO 2
Providing Defendant with Discovery During Representation
January 24, 2014

Opinion rules that if, after providing a criminal client with a summary/explanation of the discovery materials in the client’s file, the client requests access to the entire file, the lawyer must afford the client the opportunity to meaningfully review all of the relevant discovery materials unless the lawyer believes it is in the best interest of the client’s legal defense not to do so.

Inquiry #1:

Lawyer represents Defendant in a criminal case. The state has provided Lawyer with discovery as PDF files. The state has also provided Lawyer DVDs containing copies of the video recordings of interrogations of Defendant and a codefendant; surveillance videotapes; and audio recordings of calls made by Defendant and the codefendant from the jail.

Lawyer reviewed the discovery and provided Defendant with a summary of the evidence. Defendant demands that he be provided a copy of the entire 1,200 pages of discovery and be allowed to view/listen to the 17 hours of video and audio recordings.

Does Lawyer have an ethical duty to comply with the client’s demand?

Opinion #1:

As a matter of professional responsibility, Rule 1.4 requires a lawyer to “keep a client reasonably informed about the status of a matter” and “promptly comply with reasonable requests for information.” As stated in comment [5] to Rule 1.4:

The client should have sufficient information to participate intelligently in decisions concerning the objectives of the representation and the means by which they are to be pursued...The guiding principle is that the lawyer should fulfill reasonable client expectations for information consistent with the duty to act in the client's best interests, and the client's overall requirements as to the character of representation.

The duties set out in Rule 1.4 are similar to those found in ABA Standards for Criminal Justice, Defense Functions, Standard 4-3.8 (3d ed. 1993) which provides:

(a) Defense counsel should keep the client informed of the developments in the case and the progress of preparing the defense and should promptly comply with reasonable requests for information.

(b) Defense counsel should explain developments in the case to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

During the course of the representation, the lawyer complies with the requirements of Rule 1.4 by providing the client with a summary of the discovery materials and consulting with the client as to the relevance of the materials to the client’s case. However, if the lawyer has provided the client with a summary/explanation of the discovery materials and the client, nonetheless, requests copies of any of the file materials, the lawyer must afford the client the opportunity to meaningfully review all of the relevant discovery material unless the lawyer believes it is in the best interest of the client’s legal defense to deny the request. The lawyer is not required to provide the client with a physical copy of the discovery materials during the course of the representation.

In determining what discovery materials are relevant, and what disclosure is in the best interest of the client’s legal defense, the lawyer must exercise his or her independent professional judgment. As stated in comment [5] to Rule 1.4: “The guiding principle is that the lawyer should fulfill reasonable client expectations for information consistent with the duty to act in the client's best interests, and the client's overall requirements as to the character of representation.” However, as stated in comment [7] to Rule 1.4, a lawyer “may not withhold information to serve the lawyer’s own interest or convenience or the interest or convenience of another person.” Therefore, the lawyer may not deny the request due to issues of expense or inconvenience.

Inquiry #2:

If Lawyer provides Defendant with a copy of, or access to, discovery materials, may Lawyer redact or otherwise remove private information of a third person, such as the address of a witness or pictures of an alleged rape victim?

Opinion #2:

The lawyer may redact or otherwise remove information that the lawyer determines, in his professional discretion, should not be disclosed to the client, including information that would endanger the safety and welfare of the client or others, violate a court rule or order, or is subject to any protective order or nondisclosure agreement. See Rule 1.4, cmt. [7].

Proposed Substitute for 2013 Formal Ethics Opinion 2
Providing Incarcerated Defendant with Opportunity to Review Discovery Materials
July 24, 2014

Proposed substitute opinion rules that if, after providing an incarcerated criminal client with a summary/explanation of the discovery materials in the client’s file, the client requests access to any of the discovery materials, the lawyer must afford the client the opportunity to meaningfully review relevant discovery materials unless certain conditions exist.

Inquiry #1:

Lawyer represents Defendant in a criminal case. The state has provided Lawyer with discovery as PDF files. The state has also given Lawyer DVDs containing copies of the video recordings of interrogations of Defendant and a codefendant; surveillance videotapes; and audio recordings of calls made by Defendant and the codefendant from the jail.

Lawyer reviewed the discovery and provided Defendant with a summary of the evidence. Defendant demands that he be provided a copy of the entire 1,200 pages of discovery and be allowed to view/listen to the 17 hours of video and audio recordings.

Does Lawyer have an ethical duty to comply with the client’s demand?

Opinion #1:

As a matter of professional responsibility, Rule 1.4 requires a lawyer to “keep a client reasonably informed about the status of a matter” and “promptly comply with reasonable requests for information.” As stated in comment [5] to Rule 1.4:

The client should have sufficient information to participate intelligently in decisions concerning the objectives of the representation and the means by which they are to be pursued...The guiding principle is that the lawyer should fulfill reasonable client expectations for information consistent with the duty to act in the client's best interests, and the client's overall requirements as to the character of representation.

The duties set out in Rule 1.4 are similar to those found in ABA Standards for Criminal Justice, Defense Functions, Standard 4-3.8 (3d ed. 1993) which provides:

(a) Defense counsel should keep the client informed of the developments in the case and the progress of preparing the defense and should promptly comply with reasonable requests for information.

(b) Defense counsel should explain developments in the case to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

Under Rule 1.2(a)(1), the client in a criminal case has the authority to decide, “after consultation with the lawyer, as to a plea to be entered, whether to waive a jury trial, and whether the client will testify.” During the course of the representation, a criminal defense lawyer complies with the requirements of Rule 1.4 to keep a client “reasonably informed” by providing the client with sufficient information to make informed decisions about these important issues. This obligation is fulfilled by providing the client with a summary of the discovery materials and consulting with the client as to the relevance of the materials to the client’s case. If the lawyer has provided the client with a summary/explanation of the discovery materials and the client, nonetheless, requests copies of or asks to review any of the file materials, the duty to comply with reasonable requests for information requires the lawyer to afford the client the opportunity to meaningfully review relevant discovery material unless one or more of the following conditions exist: (1) the lawyer believes it is in the best interest of the client’s legal defense to deny the request; (2) a protective order or court rule limiting the discovery materials that may be shown to the defendant or taken to a jail or prison is in effect; (3) such review is prohibited by the specific terms of a discovery agreement1 between the prosecution and the defense lawyer; (4) because of circumstances beyond the defense counsel’s control, such review is not feasible in light of the volume of discovery materials and the time remaining before trial or before a decision must be made by the client on a plea offer; or (5) disclosure of the discovery materials will endanger the safety or welfare of the client or others.

In determining what discovery materials are relevant, and what disclosure is in the best interest of the client’s legal defense, the lawyer must exercise his or her independent professional judgment in the context of the decisions that the defendant must make about what plea to enter, whether to waive jury trial, and whether to testify. See Rule 1.2(a)(1). As noted above: “The guiding principle is that the lawyer should fulfill reasonable client expectations for information consistent with the duty to act in the client's best interests, and the client's overall requirements as to the character of representation.” Rule 1.4, cmt. [5]. However, as stated in comment [7] to Rule 1.4, a lawyer “may not withhold information to serve the lawyer’s own interest or convenience or the interest or convenience of another person.” Therefore, the lawyer may not deny the request due to issues of expense or inconvenience.
Regardless of whether the lawyer determines that the client should have an opportunity to review some or all of the discovery materials, the lawyer is not required to provide the client with a physical copy of the discovery materials during the course of the representation.

Inquiry #2:

If Lawyer provides Defendant with a copy of, or access to, discovery materials, may Lawyer redact or otherwise remove private information of a third person, such as the address of a witness or pictures of an alleged rape victim?

Opinion #2:

The lawyer may redact or otherwise remove information that the lawyer determines, in his professional judgment, should not be disclosed to the client, including information that would endanger the safety and welfare of the client or is subject to a protective order, court rule, or agreement prohibiting disclosure. See Rule 1.4, cmt. [7].

Endnote

1. Discovery agreements between the prosecution and the defense may present other ethical concerns not addressed in this opinion. 

 

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