the means by which the client ’ s objectives are to be accomplished ” and to “ explain a matter to the extent reasonably necessary to permit the client to make informed decisions [.]” Rule 1.3 requires a lawyer to act with “ reasonable diligence [,]” and an explanatory comment indicates that the lawyer must act with “ commitment and dedication to the interests of the client [.]”
Because of the lawyer ’ s duties relating to consultation and diligence , the general rule on conflict of interest would preclude a lawyer from agreeing with another party to withhold pertinent information from the client . Rule 1.7 ( a ) provides that a lawyer “ shall not represent a client if the lawyer ’ s ability to consider , recommend , or carry out a course of action on behalf of the client will be adversely affected by the lawyer ’ s responsibilities ... to a third person [.]” Rule 1.7 ( c ) provides that lawyer “ shall not represent a client if the representation ... might be adversely affected by the lawyer ’ s responsibilities ... to a third person [.]” While the latter provision allows the lawyer to continue representation when the client consents after consultation , 1 no reasonable consultation could occur . See N . D . R . Prof . Conduct 1.7 ( c )( 2 ). The client could not knowingly consent because the client would not know what information is being withheld . Thus if a lawyer becomes bound by an agreement to withhold pertinent information from a client , the lawyer would be required to withdraw .
Criminal history information concerning the witnesses against a criminal defendant and the defendant himself is pertinent . As noted , a defendant making a proper request under the procedural rules is entitled to that information . Moreover , the information enables the defendant to better assess whether witnesses , including himself , are impeachable . See N . D . R . Ev . 609 ( providing criteria for using prior convictions to impeach witnesses ). The impeachability of witnesses impacts a criminal defendant ’ s assessment of the case and a variety of choices , e . g ., whether to accept a prosecutor ’ s plea proposal , whether to investigate circumstances further , whether to go to trial and attack the witnesses ’ credibility , and whether to testify himself or instead remain silent .
Given the importance of criminal history information , reasonable consultation and reasonable diligence preclude Criminal Defense Attorney from agreeing to withhold such information from a client . executed and served or filed regardless whether the client has paid the lawyer for drafting and serving and / or filing the document ( s ).” ( Emphasis added .)
The criminal history information noted by Criminal Defense Attorney constitutes part of a client ’ s files . The information is discovery ; indeed , it would be obtained through Criminal Defense Attorney ’ s request under N . D . R . Crim . P . 16 . As part of the client ’ s files , Rule 1.19 prohibits Criminal Defense Attorney from destroying the information at the end of the case , unless the client consents .
CONCLUSION Criminal Defense Attorney has duties to reasonably consult with client and to act with reasonable diligence . Those duties preclude Criminal Defense Attorney from agreeing to withhold from the client pertinent information – including criminal history documents regarding prosecution witnesses and the client himself . Criminal Defense Attorney also has a duty to recognize that discovery documents constitute property of the client . That duty precludes Criminal Defense Attorney from destroying criminal history information obtained by discovery request , unless the client consents to destruction .
This opinion was drafted by Cherie Clark and was unanimously approved by the Ethics Committee on the 22nd day of March , 2017 .
This opinion is provided under Rule 1.2 ( B ), North Dakota Rules for Lawyer Discipline , which states :
A lawyer who acts with good faith and reasonable reliance on a written opinion or advisory letter of the ethics committee of the association is not subject to sanction for violation of the North Dakota Rules of Professional Conduct as to the conduct that is the subject of the opinion or advisory letter .
1 . The lawyer must also “ reasonably believe [] the representation will not be adversely affected [.]” See N . D . R . Prof . Conduct 1.7 ( c )( l ).
II . Criminal Defense Attorney is prohibited from destroying the criminal history information at the conclusion of the case .
Rule 1.19 relates to ownership of criminal history information obtained through discovery . Under the Rule , “[ t ] he following constitute a client ’ s files , papers ( including items only electronically stored ), or property ... [ a ] ll pleadings , motions , discovery , memoranda , and other litigation materials which have been
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