QUESTION: May Attorney representing Client charged with a crime in federal court enter into an agreement by which the prosecutor will provide discovery to Attorney under circumstances advantageous to Client in return for Attorney’s agreement not to turn over discovery to Client?

ANSWER: Attorney must consult with Client about the means by which Client’s objectives for the representation are to be pursued, including whether to enter into a discovery agreement that would prevent Client from obtaining the entire client file. See Rule 4 dash–1.2(a). Attorney should explain the proposed agreement to the extent reasonably necessary to allow Client to make an informed decision. See Rule 4 dash–1.4(b). Comment [1] to Rule 4 dash–1.2 provides guidance that a lawyer is not required to employ particular means in pursuing Client’s objectives simply because a client so directs, and the lawyer should assume responsibility for technical and legal tactical issues while deferring to the client regarding questions such as expense and concern for third persons. The file belongs to the client, with limited exception. Formal Opinion 115, as amended. Rule 4 dash–1.15(d) requires Attorney to deliver promptly to the client any property that the client is entitled to receive, “except as … otherwise permitted by law or by agreement with the client.” Upon termination of the representation, Attorney is obligated to surrender papers and property “to which the client is entitled,” but may “retain papers and property to the extent permitted by other law.” When a discovery agreement is in place, whether other law would permit Attorney to deny a request from Client to obtain the entire file, including discovery, is a question of fact and law outside the scope of the Rules of Professional Conduct. 

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