Does appellate counsel appointed by the Office of Alternate Defense Counsel (OADC) violate his or her ethical duties to a present or former client by refusing to (1) review transcripts and documents contained in the client file when the purpose of the review is to identify and, if appropriate, redact material constituting contraband under the regulations of the Department of Corrections (DOC), or (2) deliver to the client information that is barred from disclosure by law, regulation, or court order?
Statement of Facts
A. OADC counsel. OADC appellate counsel are independent contractors. They are paid a flat hourly rate, and their appointment terminates when the mandate or other order terminating the appeal is issued. Clients are typically advised at the outset of the representation that OADC counsel will review the trial transcripts but see no reason why the client needs personal copies of transcripts and documents from the court file and, if copies are requested, payment must first be made by the client to the court reporter. Nevertheless, OADC counsel receive requests from current and former clients for copies of transcripts and other documents from their client files. Former clients routinely cite Colo. RPC 1.16 and this Committee’s Formal Opinion 104 in asserting that OADC counsel are ethically required to surrender such materials to them.
B. Incarcerated clients. DOC considers certain information frequently found in transcripts and the client file (whether in electronic or printed format) to be contraband and, by regulation, provides that it is the responsibility of the inmate’s counsel to redact such information before sending those materials to the inmate. However, OADC does not pay for client copies of transcripts or documents, nor does it pay appointed counsel to review and redact those transcripts and documents, both of which must be done before they can be forwarded to incarcerated clients.
DOC regulations prohibit:
[P]ersonal communications; personal pictures; maps; victim information; phone numbers, addresses, social security, SID, or FBI numbers of victims, witnesses or employees; . . . personal information regarding other incarcerated individuals; . . . training manuals, restricted regulations, security threat group identifications, etc.
Colo. DOC Admin. Reg. 750-03 (K) (L) (Jan. 15, 2011).
In addition, it is a criminal offense to introduce contraband into a correctional facility. “Contraband” is defined as:
[a]ny article or thing that poses or may pose a threat to the security of the detention facility as determined by the administrative head of the detention facility if reasonable notice is given that such article or thing is contraband.
CRS Ann. § 18-8-204(2)(l). Because notice has been given by DOC regulation that information of this type is contraband, introduction of such information in unredacted transcripts or documents may expose counsel to prosecution for second-degree introduction of contraband. CRS § 18-8-204(1). Knowing and unlawful introduction of such contraband is a class 6 felony. CRS § 18-8-204(3). Finally, counsel could be charged with introduction of contraband in the first degree, a class 4 felony, if the attorney sends materials under 1,000 pages in CD or DVD formats, whether redacted or not, because the disc, when broken, has sharp edges and can be used as a dangerous weapon. See CRS Ann. § 18-8-203.
C. Other clients. In addition, counsel may, by reason of a court protective order or otherwise, be prohibited from providing unredacted documents to a current or former client, whether incarcerated or not.
A. Former clients.Counsel’s duty to provide to a former client documents from the lawyer’s files for that client is addressed in Colo. RPC 1.16, which provides:
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 papers and property to which the client is entitled and refunding any advance payment of fee or expense that has not been earned or incurred. The lawyer may retain papers relating to the client to the extent permitted by other law. (Emphasis added.)
The Committee has previously discussed the requirements of Colo. RPC 1.16 (d) in its Opinion 104, adopted April 17, 1999. Opinion 104 states that it does not address surrender of documents in circumstances where “lawyers are subject to court orders that prohibit the disclosure of certain documents or certain information to the client.” Opinion 104, footnote 5. Similarly, Opinion 104 does not expressly address the circumstance presented by an incarcerated former client’s request to be provided at no charge with client file documents that would require review and perhaps redaction to comply with DOC regulations. The Committee also notes that, following the adoption of Opinion 104, Crim.P. 16, Part V(c) was amended to provide that “copies of any discovery provided to a defendant by court appointed counsel shall be paid for by the defendant.”
Under the plain language of Colo. RPC 1.16, a lawyer’s otherwise broad duty to surrender client file documents to former clients is tempered by the Rule’s limitations that the surrender be “reasonably practicable” and that the documents be those “to which the client is entitled.” In the case of documents or information in documents subject to protective order or other prohibition against disclosure to the client, it would appear that the papers in question are not those “to which the client is entitled.” Similarly, in the case of documents or information in documents (or CDs or DVDs containing documents) from which incarcerated clients are barred by DOC regulation, it would appear that the papers (or property) are not those “to which the client is entitled,” nor would the surrender of those papers (or property) be “reasonably practicable.”
The former client may have a legitimate interest in receiving redacted versions of the documents in question where, for example, only a portion of the content of a document contains prohibited material. However, creating such redacted versions of the materials would require the lawyer to perform additional legal services for the former client. Nothing in Colo. RPC 1.16 requires a lawyer to provide such additional legal services, whether or not the client is willing and able to pay for those services. Once the representation has terminated, and absent some prior agreement, the lawyer is not required to enter into a new engagement, even if it would be beneficial to the client for the lawyer to do so.
Accordingly, Colo. RPC 1.16 does not require a lawyer to perform the services of review and redaction of documents in the client file to produce versions of the documents that are suitable for surrender to the client under the terms of applicable law, court order, or regulation. To the extent consistent with such law, order, or regulation, nothing in this letter is intended to suggest that the lawyer may not surrender the documents to successor counsel for the purpose of performing such review and redaction. Finally, his response does not address a circumstance in which the lawyer’s withdrawal or other termination of the representation occurs at a time when the client has an acutely time-sensitive need for the documents in redacted form.
B. Current clients. Colo. RPC 1.16 and Opinion 104 are inapplicable when a current client requests transcripts and documents from the client file.
With respect to the current client who is incarcerated, documents or information in documents (or CDs or DVDs containing documents) that are contraband under DOC regulations, the lawyer may not provide the relevant documents, information, or media storage devices to the client. See Colo. RPC 1.2 (d) (“A lawyer shall not . . . assist a client . . . in conduct that the lawyer knows is criminal . . . .”). While a lawyer is bound to promptly comply with a client’s reasonable requests for information (see Colo. RPC 1.4(a)(4)), that obligation is not without limits. As the comments to the Rule recognize, rules or court orders may preclude disclosure of particular information supplied to the lawyer.Id., cmt. 7.
Whether a lawyer is ethically required to perform the review and redaction necessary to produce versions of the documents that are suitable for surrender to the client under the terms of applicable law, court order, or regulation depends on the scope of representation. The Committee understands that the scope of representation provided by OADC does not include review and redaction services for this purpose. Accordingly, the Committee determines that the lawyer is not required to provide this service to the incarcerated client absent an agreement to do so.
Third-party payment of a defendant’s legal fees can raise professional, due process, and Sixth Amendment concerns. See Wood v. Georgia, 450 U.S. 261,268 (1981) (“inherent dangers” arise when defense counsel is hired and paid by a third party); Ariz. Ethics Op. 2001-06 (lawyers should not contract with county to represent indigent defendant if contract might induce lawyer to act contrary to clients’ interests).See also ABA Formal Opinion 87-355 (1987) (it is of “primary importance” that the payment of fees by a third party does not allow the third party to direct or regulate the lawyer’s professional conduct). The Colorado Rules of Professional Conduct prohibit a lawyer from allowing a third party who pays for legal services on behalf of a client to interfere with the lawyer’s exercise of independent professional judgment. Colo. RPC 1.8(f)(2) and 5.4(c).
The facts support the conclusion that the limitation of the scope of representation by OADC does not interfere with the exercise of independent judgment on behalf of clients. Accordingly, this limitation does not create a conflict prohibited by Colo. RPC 1.8(f) (2) or compromise the lawyer’s professional independence in violation of Colo. RPC 5.4(c).