Texas prosecutors shall adopt an “open file” policy for all criminal defense lawyers

Texas Ethic Opinion 646

Professional Ethics Committee for the State Bar of Texas



Prosecutor right to require criminal defense lawyers to keep confidential discoverable information contained in the prosecutor’s file.

Statement of facts

“A district attorney requires criminal defense lawyers to sign a confidentiality agreement as a condition to granting lawyers access to the prosecutor’s file (a so-called “open file” arrangement). The agreement allows lawyers to obtain discoverable information in the prosecutor’s file in exchange for their agreeing not to share copies of that information with anyone else, including the lawyers’ clients, and their agreeing not to seek court-ordered discovery in any of their clients’ cases.”

Conclusion of the Committee:

“The Texas Disciplinary Rules of Professional Conduct require prosecutors to comply with the Michael Morton Act, Tex. Code Crim. Proc. art. 39.14, including making disclosures required by the act. Therefore, prosecutors may not, as a condition for providing information in their files they are obligated to disclose, require that criminal defense lawyers agree not to show or provide copies of the information to their clients, nor require that criminal defense lawyers agree to waive court-ordered discovery in all of their clients’ cases.”

The full text of the opinion can be found at http://www.legalethicstexas.com…