VSB Standing Committee On Legal Ethics Seeking Public Comment On Legal Ethics Opinion 1864
view draft LEO 1864 (PDF file)
Pursuant to Part Six: Section IV, Paragraph 10-2(C) of the Rules of the Supreme Court of Virginia, the Virginia State Bar’s Standing Committee on Legal Ethics (“Committee”) is seeking public comment on proposed advisory Legal Ethics Opinion 1864, May a Criminal Defense Lawyer Agree That He Will Not Give Certain Discovery Materials To His Client During The Course Of The Representation, And That He Will Remove Certain Materials From His File Prior To The End Of The Representation?.
This proposed opinion addresses an agreement offered by a prosecutor to criminal defense lawyers, which provides that in exchange for broad discovery provided by the prosecutor, the defense lawyer will not give copies of any such discovery materials to his client during the course of the representation, and that the lawyer will remove certain sensitive materials from his file prior to the termination of the representation so that the client will not receive those materials. The prosecutor asks whether this agreement will cause the defense lawyer to violate Rule 1.4, governing communication, and/or Rule 1.16(e), addressing the client’s entitlement to materials from the file upon the termination of the representation.
In this proposed opinion, the Committee concludes that Rule 1.4 does not require that the lawyer provide copies of discovery materials during the representation, because the lawyer can explain all pertinent facts to the client without providing particular documents. However, in order to avoid a violation of Rule 1.16(e) if the lawyer’s representation is unexpectedly terminated, the lawyer must seek the client’s consent to the portion of the agreement that requires the lawyer to return documents to the prosecutor prior to the conclusion of the representation.
Inspection and Comment
The proposed advisory opinion may be inspected at the office of the Virginia State Bar, 707 East Main Street, Suite 1500, Richmond, Virginia 23219-2800, between the hours of 9:00 a.m. and 4:30 p.m., Monday through Friday. Copies of the proposed advisory opinion can be obtained from the offices of the Virginia State Bar by contacting the Office of Ethics Counsel at 804-775-0557, or can be found at the Virginia State Bar’s website at http://www.vsb.org/site/regulation/pending-leo.
Not later than September 7, 2012, any individual, business, or other entity may file or submit to Karen A. Gould, the Executive Director of the Virginia State Bar, a written comment in support of or in opposition to the proposed advisory opinion.