83-F-42 - Client Property Trial Transcript

FORMAL ETHICS OPINION 83-F-42


Inquiry is made concerning the ethical obligation of a court appointed attorney to
provide his client, an indigent criminal defendant, with a copy of the trial
transcript and a copy of the appellate brief filed on behalf of his client.


T.C.A. 40-14-312 provides, in part, as follows:
--If the defendant prays and is granted an appeal, and is determined
by the trial judge to be without sufficient funds to pay for the
preparation of the transcript of the proceedings, the trial judge shall
direct the court reporter to furnish the defendant a complete
transcript of the proceedings, the fee for which shall be paid by the
State of Tennessee out of money appropriated for that purpose.---
The practice of implementing the statute varies from court to court. In some instances, the court
reporter prepares only one original transcript which is filed with the trial court and ultimately
with the appellate court. In such instances, the attorney has limited access to the transcript to
prepare an appeal. In other instances, the court reporter prepares an original transcript and also
furnishes a copy to the attorney for the defendant.
In the instances when the attorney is furnished with a copy of the transcript, then pursuant to
T.C.A. 40-14-312, the copy of the transcript is the property of the defendant client.
The ethical rules governing an attorney's treatment of client property derive generally from
agency law, which imposes duties of separation, accounting, notification and delivery on all
agents possessed of a principal's property. See Reinstatement (Second Agency), Sec. 381-382,
1207, 1334-1335 (1957). The attorney is ethically obligated to treat the property of a client with
special care and meet the high standards of accountability required by Disciplinary Rule 9-
102(B) of the Code of Professional Responsibility.
Thus, in instances when the attorney has been provided with a copy of the trial transcript on
behalf of the client, the attorney is ethically obligated to account for the transcript copy in
accordance with Disciplinary Rule
9-102(B) which includes delivering the transcript copy to his client.
In instances when the attorney is not provided with a copy of the trial transcript and the original
transcript is filed with the trial or appellate court on behalf of the client, then the attorney has no
ethical obligation to bear the expense of copying the transcript in order for his client to obtain a
copy.
83-F-42 Page 2
The brief filed on behalf of the indigent client by the court appointed attorney is the product for
which the attorney is compensated by the State of Tennessee. This product is the joint property
of the attorney and the indigent client and, pursuant to Disciplinary Rule 9-102(B)(4), a copy of
the brief should be furnished to the indigent client upon request.
This 14th day of April , 1983.
ETHICS COMMITTEE:
F. Evans Harvill
Oscar B. Hofstetter, Jr.
William R. Willis
APPROVED AND ADOPTED BY THE BOARD