Rule 19 Motions Requesting Copy of Record or Brief

COMMENT Reporter's Notes to 2016 Amendment: This rule was added in 2016 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 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.