                                                                                                                   FILED
                                                                                                         COURT OF
                                                                                                               DIVISION II
                                                                                                        2814 AUG 12
                                                                                                                    PM 12: 148
                                                                                                               0

      IN THE COURT OF APPEALS OF THE STATE OF WASH'

                                                    DIVISION II

STATE OF WASHINGTON,                                                                 No. 44712 -6 -II


                                         Respondent,


         v.



RAYNARD SANTOS CHARGUALAF,                                                       UNPUBLISHED OPINION


                                         Appellant.


         LEE, J. —     A jury found Raynard Santos Chargualaf guilty of first degree burglary, first

degree robbery, four counts of first degree kidnapping, and second degree unlawful possession of

a   firearm.     While his appeal was pending, he filed a motion to compel his trial attorney to

provide him with his client file and discovery. The trial court denied the motion and Chargualaf

appeals.      We reverse and remand to the trial court for further proceedings consistent with this


opinion.



                                                              FACTS


         Chargualaf      appealed        his   convictions     for   numerous      felonies.   While his appeal was


pending, Chargualaf filed            a    motion   to   compel       his trial attorney to     provide   him   with " all




discovery      and   case -related   files."     Clerk'   s   Papers   at   7.   The trial court denied Chargualaf' s


motion because the files were not the trial attorney' s property, and therefore, the trial court could

not order      the trial attorney to     provide   them.       Chargualaf appeals the trial court' s order denying

his   motion.
No. 44712 -6 -II


                                                              ANALYSIS.


             This   case   involves Chargualaf s         request     for two different types   of records:   his client file


and    the   discovery     the State    provided       to his defense attorney.      Chargualaf is entitled to his client


file under RPC 1. 16, subject to the limitations discussed below. And under CrR 4. 7, Chargualaf


is entitled to the discovery provided to his attorney; however, all discovery materials are subject

to redactions approved by the prosecutor and the court.

A. CLIENT FILE


             Chargualaf argues that he is entitled to his client file under the Rules of Professional


Conduct (RPC) governing the termination of representation. RPC 1. 16( d) states,

             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 or expense that has not been earned or incurred. The lawyer may


             retain papers relating to the client to the extent permitted by other law.)l1
             In the Washington State Bar Association ( WSBA)' s ethics advisory opinion interpreting

RPC 1. 16( d),       the advisory rules of the professional conduct committee concluded, in relevant

part,




             At the conclusion of a representation, unless there is an express agreement to the
             contrary,     the   file       generated    in   the    course   of   representation,   with    limited
             exceptions, must be turned over to the client at the client' s request, and if the
             lawyer wishes to retain copies for the lawyer' s use, the copies must be made at the
             lawyer' s expense.




1
    The fact that Chargualaf            s   trial   counsel was appointed     is   of no   import. As comment 3 to RPC
6. 2    states, "   An appointed lawyer has the same obligations to the client as retained counsel,
including the obligations of loyalty and confidentiality, and is subject to the same limitations on
the client -
           lawyer relationship, such as the obligation to refrain from assisting the client in
violation of the Rules."


                                                                     2
No. 44712 -6 -II



WSBA Ethics            Advisory Opinion 181              at   2 ( 1987).    Therefore,     under   RPC 1. 16( d), Chargualaf is


entitled      to his   client   file.      However, even the WSBA' s ethics advisory opinion recognized that a

client   is   not entitled      to   all   documents in       a client' s   file.   As the WSBA' s ethics advisory opinion

explains, a lawyer may withhold certain papers or materials if it does not prejudice the client.

 Examples of papers the withholding of which would not prejudice the client would be drafts of

papers,        duplicate    copies,             photocopies    of    research       material,    and    lawyers'   personal       notes




containing       subjective      impressions          such as . comments about           identifiable    persons."   WSBA Ethics


Advisory Opinion            181      at    3.     The ethics advisory opinion itself recognized that its opinion as
                                                                                                                              2
written       addresses    primarily the             rights   of clients    in   civil   cases   with   retained   counsel.       In a


criminal case, however, some documents and information in the client' s file may also contain

sensitive or confidential information that is simply not appropriate to be released to a criminal

defendant for the same reasons that discovery must be redacted prior to disclosure pursuant to

CrR 4. 7 ( discussed below).                     This is applicable whether criminal defense counsel is retained or


appointed.         Thus, while Chargualaf is entitled to his client file, Chargualaf' s counsel must


evaluate what documents or information in the file may be properly withheld without prejudicing

the client, taking into consideration the restrictions ( and spirit of the restrictions) under CrR 4.7.

Accordingly, the trial court erred in summarily denying Chargualaf s request to have his trial

counsel provide him his client file.


B. DISCOVERY


              The disclosure of the discovery provided by the State in the course of the criminal

prosecution       is   governed         by the     criminal rules,   specifically CrR 4. 7. CrR 4. 7( h)(3) states,




2 " The client, however, retains an absolute right, in civil cases at least, to terminate the lawyer at
any time for any reason, or for no reason at all." WSBA Ethics Advisory Opinion 181 at 1.
                                                                       3
No. 44712 -6 -II



        Any materials furnished to an attorney pursuant to these rules shall remain in the
        exclusive custody of the attorney and be used only for the purposes of conducting
        the party' s side of the case, unless otherwise agreed by the parties or ordered by
        the court, and shall be subject to such other terms and conditions as the parties
        may       agree   or   the   court   may Further, a defense attorney shall be
                                                   provide.

        permitted to provide a copy of the materials to the defendant after making
        appropriate redactions which are approved by the prosecuting authority or order
        of the court.


The trial court erred in concluding that Chargualaf' s trial attorney could not provide him with

copies of   the   discovery. Chargualaf' s attorney can provide copies of the discovery material so

long as the materials can be properly redacted and approved by the prosecutor or the trial court.

        The trial court erred by summarily denying Chargualaf' s motion to compel production of

his client file and discovery. He is entitled to copies of his client file and discovery provided it is

properly redacted and approved by the prosecuting attorney or the trial court.

        We reverse the trial court and remand for further proceedings consistent with this


opinion.




        A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate , Reports, but will be filed for public record in accordance with RCW

2. 06. 040, it is so ordered.




We concur:




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