Trial Counsel Must Retain and Make File Available to Appellate Counsel

On February 1, 2012, the Michigan Supreme Court issued Administrative Order ("AO") File No. 2010-15, effective May 1, 2012, amending MCR 6.005.  The amended provision, (H)(5), requires trial counsel to "promptly" make  "the defendant's file, including all discovery material obtained, available for copying upon request" of the retained or appointed appellate lawyer.  Further, trial counsel must retain the materials in the defendant's file for at least five years after trial court disposition of the case.  The full text appears at:

 Appellate attorneys know it can sometimes be difficult to obtain discovery and trial attorneys’ files after an unsuccessful criminal trial.  The Michigan Supreme Court’s adoption of the amendment to MCR 6.005(H) should make this process easier.  Until now, trial attorneys were only ethically obligated to provide their files and discovery under MPRC 1.15 and 1.16.  Most attorneys happily complied.  But in many instances, trial attorneys for various reasons – not the least of which is limited resources due to Michigan’s current indigent defense system –failed to meet this obligation.  Seeking a remedy under the MPRC is too time consuming to be practical given the short deadlines imposed for filing.  Instead, appellate attorneys were forced to obtain the discovery by other means such as requests under the Freedom of Information Act, requests to the prosecutor, or requests to the client in hopes that he or she was able to retain the material (quite a feat if incarcerated).  These methods have long proven inadequate and will hopefully be unnecessary in the future.  As more trial attorneys become aware of the changes to MCR 6.005, the time it takes to get these materials should decrease, allowing appellate attorneys to file more post-judgment motions or fewer extensions.  The hope is that the rule will provide the impetus to streamline the transition between trial and appellate attorneys and a practical means to enforce an attorney’s ethical – and now legal – obligations.

by Neil Leithauser,
Associate Editor and
Meredith Krause,
SADO Special Assistant Defender