Just had a defense lawyer bring this opinion to my attention. He claims that not only that a prosecutor requiring an agreement is a grievable action, but that even an acknowledgement of discovery procedure and laws requiring defense to redact is as well. With the new discovery law, my office has been executing an acknowledgement. Any opinions on the matter?

http://www.legalethicstexas.co...ons/Opinion-646.aspx

Well... he's wrong. At least in regards to the acknowledgment and redaction. He's right that you can't require an agreement before you provide discovery.

39.14(f) imposes confidentiality restrictions on the defense. 39.14(j) requires an acknowledgment either in writing or on the record.

The opinion just points out that prosecutors can't require a signed agreement as a condition to complying with the discovery statute. The law doesn't authorize it, and doing so would put you in violation of Rule 8.04(a)(12), which provides that a lawyer shall not “violate any other laws of this state relating to the professional conduct of lawyers and to the practice of law.”

The irony is that if your defense attorney is refusing to redact or acknowledge discovery based on this opinion, he's actually in violation of the same professional rule upon which the opinion is based.

I suppose each office will have to adopt its own understanding of the MMA. I believe, however, that the Ethics Committee was wrong to say the amendment "require[s] that prosecutors disclose all information in a prosecutor’s file except the prosecutor’s work product and other information (such as information about victims and children) that is made confidential by law." Instead, the statute provides a laundry list, or specific categories, of items to be disclosed.

While I have expressed doubt that any defense attorney should ever fail to make a request under the act, Op. 646 does not outlaw reaching an agreement for discovery under subsection (n) that provides methods, procedures, and rights equal to those in other parts of the statute. The opinion does caution that any such agreement must not include any "concession" from a defendant, but agreeing on some alternative type of discovery is not, in itself, a concession. And compliance with a subsection (n) agreement should prove sufficient and binding on both parties, whether entry into the agreement is considered a waiver or there is express waiver language in the agreement. But, frankly, why not just ignore subsection (n) and forget trying to interpret or haggle over what are "equal" discovery and documentation requirements.

Also, there is no longer anything "court-ordered" about discovery except under subsections (b) and (c) of the statute. The duty to comply with a request under subsection (a) is automatic, although I suppose the court might get involved with compliance when the "as soon as practicable" time period has expired.

This message has been edited. Last edited by: Martin Peterson,