sunEthics
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Florida - FILES
Mandamus does not lie to compel privately retainer lawyer to provide trial transcripts to former client. [Added 10/11/23]
Green was represented in his criminal case by privately retained counsel, Firsco. In connection with his direct appeal Green wanted Frisco to provide him with copies of trial transcripts that Green claimed were paid for in his legal fee. Green filed a petition for writ of mandamus, which the trial court denied. Green appealed.
The First DCA affirmed. Although a lawyer’s case files are the personal property of the lawyer under Florida law, the lawyer sometimes has an obligation to provide records to a client. For example, appointed counsel represent an indigent defendant must provide transcripts prepared at public expense to the defendant without charge for copying. The appointed counsel is considered a quasi-public official for this purpose.
But the writ of mandamus will not lie to compel a private person to perform an act. Because Frisco was privately retained rather than court-appointed, he is not a public official or a quasi-public official. Accordingly, “the trial court did not err in denying the petition to compel Frisco by writ of mandamus to provide Green with the trial transcripts.”
In a footnote the court pointed out that Green might be able to bring an action for replevin to recover the transcripts. Green v. Steven Garrett Frisco, P.A., __ So.3d __ (Fla. 1st DCA, No. 1D22-0404, 9/27/2023), 2023 WL 6282823.
Public defender’s former client who filed public records request for materials relating to case not required to include in request acknowledgment of obligation to pay copying costs. [Added 8/5/19]
Defendant had been represented by the public defender’s office. After his conviction, Defendant filed a petition to compel the office to provide him with a Department of Justice report relating to his case so that he could include the DOJ report as newly discovered evidence in a Fla.R.Crim.P. 3.850 motion for postconviction relief. The circuit court dismissed Defendant’s petition as facially insufficient because “the petition did not include an acknowledgment by [Defendant] of his obligation to pay the copying costs associated with the DOJ report.” Defendant appealed.
The Second DCA reversed, concluding that Defendant’s petition for mandamus to compel disclosure of the report was facially sufficient.
A defendant represented by a public defender is entitled to free copies of his records or property, including copies of all trial and hearing transcripts, motions, State discovery presented to defense counsel, and any other documents prepared at public expense. The defendant is not entitled to free copies of documents in the possession of the public defender if the documents were not obtained at public expense. In the latter situation, the defendant must reimburse his former lawyer for the cost of these documents. But Florida law does not require that the petition for mandamus affirmatively acknowledge an obligation to pay for copying costs in order to state a valid claim for mandamus relief. In this case, whether Defendant must pay copying costs is to be determined after the public defender’s office responds to the document request. Anthony v. State, __ So.3d __ (Fla. 2d DCA, No. 2D18-1987, 7/19/2019), 2019 WL 3242392.
Mandamus lies to compel public defender to provide former client with copies of documents, including recordings, prepared at public expense. [Added 8/29/18]
Defendant was represented by the Public Defender’s Office (“PD”). After the case, Defendant requested from the PD copies of certain CDs and DVDs that he alleged had been prepared at public defense. He petitioned for a writ of mandamus to compel production. The trial court summarily denied the petition on the ground “that he had no ‘pending’ prosecution and ‘the records of the Public Defender’s Office are not part of the judicial branch record, and are therefore not subject to release by [the circuit] court.’” Defendant appealed.
The Fifth DCA reversed for a determination whether the requested records were prepared at public expense. “Because a public defender is an ‘official,’ mandamus is an appropriate remedy to compel the public defender to provide to a former client copies of record documents prepared at public expense. . . . Moreover, record documents that were prepared at public expense on behalf of an indigent defendant must be provided to him or her without charge for copying.” (Citations omitted.) Kimbrough v. State, __ So.3d __ (Fla. 5th DCA, No. 5D18-608, /17/2018), 2018 WL 3946052.
Court required to hold evidentiary hearing when convicted defendant petitioned for writ of mandamus to require appointed appellate counsel to provide record on appeal and relevant trial transcripts. [Added 2/18/17]
Defendant filed a petition for writ of mandamus to compel his court-appointed trial appellate counsel to provide him with “a copy of the record on appeal, all trial transcripts, and any other documents related to his direct appeal that were obtained at public expense.” The court issued an order to show cause that directed counsel to provide the materials or show cause why the relief should not be granted. Counsel responded that he had no independent recollection regarding the appeal and that he did not have, and did not recall having, the requested records. Defendant did not give up, replying with exhibits that were "inconsistent with defense counsel's representations." Ultimately, however, the trial court denied the petition.
The Fourth DCA reversed and remanded for an evidentiary hearing. “[T]he trial court erred in failing to conduct an evidentiary hearing on the contested issue of whether defense counsel had the requested materials in his possession. Appellant’s exhibits showed that defense counsel did in fact possess the record on appeal and the trial transcripts at one point, but wanted appellant to pay the costs of mailing the record and transcripts. Moreover, defense counsel’s unsworn allegation that he was not in possession of the requested materials was insufficient to show that there was no contested issue of fact.” Hollis v. Massa, __ So.3d __ (Fla. 4th DCA, 4D16-1712, 1/25/2017), 2017 WL 363152.
Court departed from essential requirements of law in ordering law firm to give former client immediate access to firm’s files, despite firm’s assertion of retaining liens on files. [Added 8/6/15] -- Conde & Cohen, P.L. v. Grandview Palace Condominium Ass’n, Inc., __ So.3d __ (Fla. 3d DCA, No. 3D15-1109, 8/5/2015.
Court clerk, rather than public defender, has duty to provide indigent defendant with paper copy of record on appeal. [Added 4/16/14] -- Lewis v. State, __ So.3d __ (Fla. 1st DCA, No. 1D13-4869).
Third DCA supports lawyers’ claim of retaining lien on client papers, rejecting argument that claim should fail because there were other avenues for payment. [Added 11/14/13] -- Fox v. Widjaya, __ So.3d __ (Fla. 3d DCA, No. 3D13-2548, 11/6/2013), 2013 WL 5927583.
Former client of Office of Criminal Conflict and Civil Regional Counsel is entitled to copies of discovery materials at no charge. [Added 8/19/13] -- Roland v. State, 120 So.3d 103 (Fla. 2d DCA 8/14/2013).
Court discusses what items from case file that indigent prisoner’s former publicly-paid counsel must provide to him for free. [Added 8/11/12] -- Brown v. State, 93 So.3d 1194 (Fla. 4th DCA 2012).
Public defender ordered to provided former client with free copies of crime scene photos from file. [Added 1/3/11] -- Morse v. State, 50 So.3d 750 (Fla. 2d DCA 2010).
When convicted defendant files mandamus petition seeking materials from file, trial court must order response from trial counsel before ruling on petition. [Added 4/20/10] -- Raymond v. State, 31 So.3d 946 (Fla. 2d DCA2010).
Law firm could not assert retaining lien over its files in contingent fee cases because contingency had not yet occurred. [Added 4/1/10] -- Brickell Place Condo Ass'n, Inc. v. Joseph H. Ganguzza & Associates, P.A., 31 So.3d 287 (Fla. 3d DCA 2010).
Trial court erred in ordering lawyer to produce his file on separate, unrelated case in which he was representing same client. [Added 4/1/10] -- Toledo v. Publix Super Markets, Inc., 30 So.3d 712 (Fla. 4th DCA 2010).
Lawyer is not required to produce documents that he does not have. [Added 7/29/05] -- Wells v. Office of Public Defender, 907 So.2d 1247 (Fla. 3d DCA 2005).
Mandamus does not lie to require court-appointed lawyer to provide file material to former criminal defense client at no charge (with certain limited exceptions). [Added 3/27/04] -- Potts v. State, 869 So.2d 1223 (Fla. 2d DCA 2004).
Retaining lien on former client's file trumps discovery demand by former client in legal malpractice case. [Added 12/9/03] -- Foreman v. Behr, 866 So.2d 705 (Fla. 2d DCA 2003).