In re Rule of App. P.-Crim.19

Cite as 2015 Ark. 295
SUPREME COURT OF ARKANSAS
No.
Opinion Delivered: June 25, 2015
IN RE ARKANSAS SUPREME COURT
COMMITTEE ON CRIMINAL
PRACTICE—ARKANSAS RULE OF
APPELLATE PROCEDURE–CRIM. 19
PER CURIAM
The Arkansas Supreme Court Committee on Criminal Practice has proposed a new
rule to address the recurrent issue of convicted offenders requesting that the appellate court
provide at public expense a copy of the party’s brief or appellate record that had previously
been filed. The issue is discussed in the Reporter’s Notes that accompany this proposal, and
we commend them to the reader when considering this proposal. Succinctly, the intent of this
rule is to make clear that a party is first to look to his or her former attorney for a copy of a
brief or an appellate record. The attorney may already possess them, and they presumably have
already been paid for. The obligation is to provide documents that the attorney has in his or
her possession. There is no obligation to make copies.
The proposed rule is being published for comment, and the comment period shall end
on September 1, 2015. Comments should be submitted in writing to: Stacey Pectol, Clerk
of the Arkansas Supreme Court, Attention: Criminal Practice Committee, Justice Building,
625 Marshall Street, Little Rock, AR 72201.
Cite as 2015 Ark. 295
RULES OF APPELLATE PROCEDURE–CRIMINAL
NEW
Rule 19. Motions requesting copy of record or brief.
(a) A convicted offender who seeks, at public expense, a copy of an appellate brief, the
trial record, or a transcript must file a motion stating that he or she has requested the
documents from his or her counsel and that counsel did not provide the documents. In
addition, if the moving party seeks a photocopy (as opposed to a disk or other electronic
medium), he or she must demonstrate some compelling need for the brief, record, or
transcript.
(b) A copy of the motion shall be served on counsel who prepared or filed the
documents. Within 20 days of such service, counsel shall file a response. If the requested
documents were not provided to the client, the response shall either commit to provide the
requested documents or provide good cause why counsel will not provide the documents.
(c) An attorney has an obligation under Ark. R. Prof’l Conduct 1.16(d) to surrender
documents such as an appellate brief, record or transcript to the client. This obligation requires
the attorney to provide only what already exists in his or her possession. But if the attorney
possesses paper copies that have been requested, the attorney must supply those paper copies.
The attorney’s obligation is determined by Ark. R. Prof’l Conduct 1.16(d), and this rule is
not intended to enlarge or diminish the obligation.
Reporter’s Notes to 2015 amendment.
This rule was added in 2015 to address a recurrent issue faced by the appellate courts:
convicted offenders frequently request that the appellate court provide at public expense a
copy of the party’s brief or appellate record that had previously been filed. The intent of this
amendment is to make clear that a party is first to look to his or her former attorney for a
copy of a brief or an appellate record. The attorney may already possess the requested
documents and in many cases these documents have already been paid for either by the client
or by the state if the party is indigent.
Attorneys are the appropriate first stop for copies because in general a person is not
entitled to photocopying at public expense unless he or she demonstrates some compelling
need for specific documentary evidence, such as to support an allegation contained in a
petition for postconviction relief. Wright v. State, 2010 Ark. 155 (per curiam); Layton v. State,
2009 Ark. 438 (per curiam); Moore v. State, 324 Ark. 453, 921 S.W.2d 606 (1996) (per
curiam); see Austin v. State, 287 Ark. 256, 697 S.W.2d 914 (1985) (per curiam). Indigency
alone does not entitle a petitioner to photocopying at public expense. Gardner v. State, 2009
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Cite as 2015 Ark. 295
Ark. 488 (per curiam); see Washington v. State, 270 Ark. 840, 606 S.W.2d 365 (1980) (per
curiam). When an appeal has been lodged in either of the appellate courts, all material related
to the appeal remains permanently on file with the clerk. Persons may review the material in
the clerk's office and photocopy all or portions of it. Absent compelling need, an incarcerated
person desiring a photocopy of material related to an appeal may write the court, remit the
photocopying fee, and request that the copy be mailed to the prison.
Attorneys have an obligation to surrender these documents to a client or former client
upon request. In Travis v. Supreme Court Committee on Professional Conduct, 2009 Ark. 188, the
court discussed the attorney’s duty to provide documents in a file to a client pursuant to Ark.
R. Prof’l Conduct 1.16(d), which provides:
(d) 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.
(Emphasis added.) To be clear, the attorney’s obligation is to provide documents that are in
his or her possession. There is no obligation to recreate them. If counsel desires to keep a copy
of what is surrendered to the client, however, such expense should be borne by the attorney.
Moreover, if counsel has a copy of the documents in electronic form only, whether on a disk
or other electronic medium, he or she is obligated to provide an electronic copy of the
documents.
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