How do you obtain files for a habeas corpus petition in Connecticut? Find out here.
Because “[t]he trial transcript seldom discloses all of the considerations of strategy that may have induced counsel to follow a particular course of action[,]” State v. Leecan, 198 Conn. 517, 541, cert. denied, 476 U.S. 1184 (1986), every effort should get made to obtain a copy of trial counsel’s entire file. This should happen without delay by sending a letter to trial counsel. This should include an authorization signed by the client attached. A copy of the entire file should go to habeas counsel within 30 days. They need this information for purposes of the pending litigation. If the file is not timely received, habeas counsel should follow-up on the request. Also, they do this by sending an additional letter to trial counsel and by calling trial counsel.
While it is a violation of the Rules of Professional Conduct to refuse a properly authorized request and to withhold a file, see Rule 1.16(d)(“lawyer shall…surrender papers and property to which the client is entitled), trial counsel need not disclose his or her entire file. Statewide Grievance Committee Ethics Opinion 84-3 identifies the portions of the file that must be turned over. Also, those portions which can be withheld. Ethics Opinion 84-3, which is an adoption of Opinion 1977-3 of the San Diego Bar Association, reads in pertinent part as follows:
A typical client’s file contains, broadly speaking, the follow-ing categories of documents: (a) pleadings and other papers filed with the court, which become part of the public record; (b) letters to the client, to the opposition, to witnesses, and to the attorney from the same; (c) notes written by the attorney to himself preparatory to drafting other documents or as preparation for disposition or notes of interviews—all typically characterized by their informality, candor, and containing mental impressions, conclusions, opinions, or legal theories; (d) investigative and research reports (legal and factual) prepared at the attorney’s direction for the attorney’s preparation of a particular matter. Ethics Opinion 84-3.
Documents to Authorize
The opinion holds that class (a) and class (b) documents must get turned over. As to class (d) documents, the opinion states that “[v]ariations among [the] documents are so numerous that it is not possible to comment generally about specifics. On the whole, however, investigative reports and written expert opinions should get turned over to the client.”
Ethics Opinion 84- 3. As to class (c) documents—personal notes written by the attorney, the opinion holds that they are not the property of the client and that the client has no right to them. “This is so because the typical attorney- client relationship presupposes that the rough, blemished opinions of the attorney, whether or not reduced to writing, are the tools of his trade (likened to the tools of a carpenter) without which the attorney cannot construct the appropriate legal representation for which the client has retained him and which the client has every right to expect.” Ethics Opinion 84-3.
Refusal to Provide Copies
Consequently, the relevant Rules Of Professional Conduct and Statewide Grievance Committee Ethics Opinion 84 -3 should get consulted. This happens if trial counsel refuses to provide a copy of his or her entire file. Or, it happens if they otherwise seek to withhold certain sections of it. This may or may not be a proper stance for counsel to take. An objection, however, based on the attorney-client privilege (which is a common law evidentiary rule) or the work -product doctrine (which is a rule of discovery) is not valid because the objection lies with the client, not trial counsel.
See Practice Book § 13-3 (civil work-product doctrine) and § 40-31 (criminal work-product doctrine); see also Spivey v. Zant, 683 F.2d 881, 885 (5th Cir. 1982)(“the work product doctrine does not apply to the situation in which a client seeks access to documents or other tangible things created or amassed by his attorney during the course of the representation”); see also Code Of Evidence, Article V. Privileges and Author Commentary (j) Attorney/Client; see generally C. Tait & Hon. E. Prescott, Tait’s Handbook Of Connecticut Evidence, § 5.20, et seq. (5th Ed. 2014)(Attorney-Client Privilege).
Notwithstanding Ethics Opinion 84-3’s holding that counsel can withhold his or her notes, every effort should happen to convince trial counsel that it is in the best interest of the client (and counsel) to disclose the entire file, including counsel’s notes, to habeas counsel.
Simply put, the entire file will aid in determining “the reasonableness of counsel’s challenged conduct on the facts of the particular case, viewed as of the time of counsel’s conduct.” Strickland , 466 U.S. at 689-90; see Gonzalez, 308 Conn. at 485; see also Id. at 691 (“inquiry into counsel’s conversations with the defendant may be critical to a proper assessment of counsel’s investigation decisions, just as it may be critical to a proper assessment of counsel’s other litigation decisions”); cf. Maxwell v. Florida, 479 U.S. 972 (1986)(Marshall, J., dissenting from denial of cert.)(“There is no more accurate or reliable evidence of trial counsel’s actual perspective and extent of preparation than the contents of his client’s case file. Access to these materials is critical where…trial counsel’s testimony rests on little more than vague recollections.”).
Finally, if trial counsel takes the position that Practice Book § 40-10(a) prohibits trial counsel from providing habeas counsel with a copy of the discovery received from the State, habeas counsel should move either the trial court or habeas court, pursuant to Practice Book § 40-10(a), for permission to receive the materials for the purpose of the habeas litigation.