DENISE PAGE HOOD, District Judge.
This matter is before the Court on Defendant Alexis Redd Rodgers' Motion to Compel Attorney to Surrender Case File and Defense Counsel's Motion to Dismiss Motion to Compel Attorney to Surrender Case File.
On August 29, 2013, a Judgment was entered against A. Rodgers after he entered a plea of guilty to the following: Count 1, Conspiracy to Distribute and to Possess with Intent to Distribute More than 5 Kilograms of a Controlled Substance-Cocaine (21 U.S.C. § 841(a)(1), 21 U.S.C. § 841(b)(1)(A), 21 U.S.C. § 851); Count 6, Unlawful Use of a Communication Facility (21 U.S.C. § 843(b) and 21 U.S.C. § 843(d)(1)); and Count 14, Felon in Possession of a Firearm (18 U.S.C. § 922(g)(1) and 18 U.S.C. § 924(a)(1). A. Rodgers received a term of imprisonment of 108 months on Count 1, 48 months on Count 6, and 108 months on Count 14, to be served concurrently. Upon release from imprisonment, A. Rodgers is to serve supervised release terms of 60 months on Count 1, 12 months on Count 6 and 12 months on Count 14, to run concurrently. (Judg., Doc. No. 392)
A. Rodgers seeks documents in possession of his defense counsel, William Hatchett. Mr. Hatchett responds that he has submitted certain documents to A. Rodgers and that he has contacted A. Rodgers' prison counselor at FCI McKean in Pennsylvania to verify what information Mr. Hatchett is able to send to A. Rodgers. Mr. Hatchett indicated all unsealed discovery materials in his possession would be transferred to CDs and will be sent to A. Rodgers no later than February 21, 2014. In Mr. Hatchett's Motion to Dismiss the Motion to Compel, it appears that Mr. Hatchett is requiring A. Rodgers to pay the copying costs of the documents Mr. Hatchett reduced to CDs and DVDs, prior to mailing the CDs and DVDs to A. Rodgers. Mr. Hatchett indicates A. Rodgers has refused to pay the cost of preparing the documents.
The issue before the Court is whether defense counsel must bear the cost of copying the files A. Rodgers seeks to be sent to him. This Court is not privy to the retention agreement between the parties which may govern the fees and costs between defense counsel and A. Rodgers. In any event, post-judgment motions in this criminal action are not a proper way to litigate the retention agreement between defense and A. Rodgers.
A State Bar of Michigan formal ethics opinion has been issued after analyzing MRPC 1.15 governing a client's property and MRPC 1.16(d) governing termination of representation and counsel's duty to surrender or retain the client's papers. The formal ethics opinion, R-19, states,
(Mich. State Bar, Formal Ethics Opinion, R-19, Aug. 4, 2000) The formal ethics opinion concludes, "[t]he client's right is, in general, one of access, not custody or possession. Thus, it is properly the client who should bear the cost of copying and delivering copies of the file records." (Mich. State Bar, Formal Ethics Opinion, R-19)
Based on the State Bar of Michigan formal ethics opinion, R-19, the Court cannot compel Mr. Hatchett to mail the CDs and DVDs to A. Rodgers without payment of the costs associated with preparing the CDs and DVDs. As noted by Mr. Hatchett, he has sent A. Rodgers various documents without charge.
To the extent A. Rodgers is seeking discovery material to further litigate his Judgment sometime in the future, there is no such matter before the Court. There is no Motion to Vacate, Set Aside or Correct a Sentence filed before the Court under 28 U.S.C. § 2255
IT IS ORDERED that Defendant Alexis Redd Rodgers' Motion to Compel Attorney to Surrender the Case File
IT IS FURTHER ORDERED that Attorney William Hatchett's Motion to Dismiss Motion to Compel Attorney to Surrender Case File
