I get a lot of calls from disgruntled criminal defendants and convicted criminal defendants. Some want to talk about the process they have endured in the system, some want to talk about the delay in their case, but most want to talk about their criminal defense attorney. According to at least one Federal Circuit Court of Appeals Judge, these complaints about the general ineffectiveness of criminal defense lawyers are well founded. One of the questions that we are most frequently asked is: Do I have access to my file from my criminal defense attorney? The answer is: yes, you do have a right to access your criminal defense attorney's file.
YOUR RIGHT TO YOUR (FORMER) ATTORNEY'S FILE IN GEORGIA
You have a right to obtain your file from your criminal defense attorney in Georgia. Georgia's Rules of Profession Conduct, specifically Rule 1.16, provides this right to you.
Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee that has not been earned.
So, you do have the right to obtain your file from your criminal defense lawyer in Georgiapursuant to the Rules of Professional Conduct, but the question remains if or how you should.
WHY DO YOU WANT YOUR FILE FROM YOUR CRIMINAL DEFENSE LAWYER?
Before we address why you may want to obtain your file, let's distinguish the different types of clients: (1) criminal defendants with pending criminal charges, and (2) clients seeking post-conviction relief.
CRIMINAL DEFENDANTS WITH PENDING CHARGES SEEKING THEIR FILE FROM THEIR CURRENT CRIMINAL DEFENSE ATTORNEY
If you are so concerned about what your criminal defense attorney is doing that you want to obtain your file, let's be honest: your confidence in that lawyer's work is gone. You don't need the file to confirm that. You need to make up your mind if that confidence can be regained or if you simply need to move on to another lawyer. Before you request your file, have a face-to-face meeting with him/her. Let them know your concerns before you completely make the lawyer become defensive by requesting the file. Yes, lawyers are people that react defensively when questioned as well.
CLIENT'S SEEKING POST-CONVICTION RELIEF AND SEEKING THEIR FILE
Of course, you have as much right to get your file after your case is over as you do during a pending case, but again, the question should be asked if you should get it. There is absolutely no harm in obtaining a copy of your file after a criminal conviction, but we strongly recommend not taking possession of the original of the file. If you have taken possession of the original and the (original) lawyer does not retain a copy of the file, this may cause complications with your post-conviction relief efforts.
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