Sheri’s Sidebar Edition #36 1/15/2025

1) Important change in Padilla consequences you must investigate and advise the client regarding.
2) Studies show hand sanitizer on an officer’s hands, even through gloves, causes a FALSE Positive BAC reading, and can increase or create a BAC reading on the PBT of over double the legal amount.
3) Authority to challenge prosecutors arguing they get to limit discovery in violation of the rule and Brady.
4) An Appellate Court has the authority to disregard precedent if it is from their same division.
5) What do you have to provide in the client file? Yes, discovery is required from defense.
6) WSBA Best Practices on record retention.

***Hey all,

I received a request to clarify regarding the client’s file. I unintentionally used the term “work product” in the sense of the attorney’s research, and notes with subjective opinions or strategies. However, I listed work product as a separate category of documents/discovery that could be withheld from a client. That is not accurate because all of the motions drafted by the attorney, and any notes from interviews or other notes which do not include the attorney’s subjective opinion and/or strategies, MUST be given to the client and are also work product.

Here is the case making the clarification:

WSBA Advisory Op. 181 (“Examples of papers the withholding of which would not prejudice the client would be drafts of papers, duplicate copies, photocopies of research material, and lawyers’ personal notes containing subjective impressions such as comments about identifiable persons.”). In addition, materials may be redacted as approved by the prosecuting attorney or court order, in order to protect against dissemination of sensitive or confidential information. See CrR 4.7(h)(3). A protective order may also be entered, if appropriate. CrR 4.7(h)(4). State v. Padgett, 4 Wn. App. 2d 851, 855, 424 P.3d 1235, 1237 (2018).

As demonstrated in the advisory opinion, and in Padgett, work product as the large general category cannot be withheld from a client requesting their file.

The point to truly get across is that the duty to provide discovery to the client as part of the file has been directly ordered in case law now. Previously, there were attorneys who thought they do not have to download all the BWC Video for example, because the client could request discovery from the State. The case law presented below demonstrates that is not accurate.

…once a case is over, the State’s ordinary discovery obligations end. This is true even if a conviction is appealed or challenged through a personal restraint petition. See In re Pers. Restraint of Gentry, 137 Wash.2d 378, 390-91, 972 P.2d 1250 (1999).

State v. Albright, 25 Wn. App. 2d 840, 842, 525 P.3d 984, 986, review denied, 532 P.3d 155 (Wash. 2023)

The overarching reminder is that there are multiple authorities governing this issue, with the RPC’s being the ultimate authority. Essentially the goal is to turn over or copy the entire file to the client, with very limited exceptions. RPC 1.16.

Happy New Year All! Happy legislative session to those who take on that difficult task as well!
Sheri