Bar Rules

Formal Advisory Opinion No. 93-4

Ethics & Discipline / Advisory Opinions / Formal Advisory Opinions / Formal Advisory Opinion No. 93-4

State Bar of Georgia
Issued by the Supreme Court of Georgia
On November 10, 1993
Formal Advisory Opinion No. 93-4

For references to Standard of Conduct 21, please see Rule 1.16(a).

For references to Standards of Conduct 22, please see Rule 1.16.

For references to Standard of Conduct 22(b), please see Rule 1.16(d).

For an explanation regarding the addition of headnotes to the opinion, click here.

Ethical obligation of criminal defense lawyers to provide indigent clients with copies of transcripts needed to pursue collateral post-conviction remedies.

Standard 22(b) requires a criminal defense attorney to provide copies of transcripts to indigent clients, without cost to the clients, whenever that is necessary to avoid foreseeable prejudice to the clients upon termination of the representation of the clients by the defense attorney.

Correspondent asks if public defenders are ethically obligated to provide indigent clients with copies of transcripts needed to pursue collateral post-conviction remedies. Apparently, the public defender office does not provide representation on collateral post-conviction remedies yet wishes to retain the paupered transcript in its file for its own purposes. Making additional copies of transcripts for indigent clients will impose a financial burden upon the public defender.

Standard 22(b) requires the public defender or any criminal defense attorney to provide copies of transcripts to indigent clients, without cost to the clients, whenever that is necessary to avoid foreseeable prejudice to the client upon termination of the representation of the client by the public defender. Standard 22(b), in its pertinent part, provides:

A lawyer shall not withdraw from employment until he has taken reasonable steps to avoid foreseeable prejudice to the rights of his client, including . . . delivering to the client all papers and property to which the client is entitled. While, by its own terms, Standard 22(b) applies only upon withdrawal, the purpose of Standard 22(b) is invoked whenever there is a termination of a lawyer-client relationship.1

A paupered transcript is a "paper . . . to which the client is entitled." That phrase must be interpreted in light of the purpose of the Standard which is to avoid prejudice to a client's rights. There can be no doubt that the lack of a transcript can prejudice the assertion of rights by the client in a collateral post-conviction relief matter. In addition, the attorney obtained the paupered transcript under a claim of right which belongs to the client -- not to the attorney. Standard 22(b) obligates attorneys to deliver transcripts and any other court documents which would be useful in the client's pursuit of rights.2

The obligation created by Standard 22 is limited to those situations in which the client would be prejudiced by the failure to deliver the transcript. If an additional copy of a paupered transcript is available to the client from the court for use in collateral post-conviction proceedings, the client may not be prejudiced by a refusal to deliver the transcript. Whether additional copies of paupered transcripts are or should be available from the court is not a matter for this opinion.

As we stated in Advisory Opinion 87-5, attorneys are entitled to keep copies of papers in their client files, but, absent a prior agreement as to costs, a situation inapplicable here, the attorney bears the cost of copying.3 It would be completely inconsistent with the nature of the relationship between the public defender or other defense counsel and the indigent criminal defendant to condition release of documents essential to further appeals upon the payment of costs of copying.

In cases where the criminal defense lawyer does not have the transcript available through no fault of his own, he has no obligation to provide it.

1 Standard 21 makes the withdrawal rules applicable to cases of discharge by the client as well:
"A lawyer representing a client before a tribunal, with its permission if required by its rules, shall withdraw from employment and a lawyer representing a client in other matters shall withdraw from employment, if he is discharged by his client."

2 In accord, ABA Informal Opinion 1376.

3 In accord, Michigan Opin. No. CI-926.



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