Criminal Defense of Immigrants
§ 3.49 1. In General
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Immediately obtain a complete copy of the case file from the original defense counsel. This includes the attorney’s notes, investigation reports, and everything else contained in the file. Submit a written request, accompanied by an information release executed by the client. Since the entire file is the property of the client, this should not be difficult. If the attorney balks, gently educate him or her concerning the ethical obligation to deliver the entire file to successor counsel. (Original counsel may, of course, keep a copy at his or her expense.)
Sometimes, reluctant counsel may not wish to produce the file, and may claim not to have retained it. Counsel, however, is ethically required to retain the file. For example, Los Angeles County Bar Association, Formal Ethics Opinion No. 420 states: “In the absence of written instruction by the client, the client’s file relating to a criminal matter in the possession of an attorney should be retained by the attorney and not destroyed.”