Suggested Amendments

Rules of Appellate Procedure

RAP 10.10

STATEMENT OF ADDITIONAL GROUNDS FOR REVIEW

A.    Proponent: Washington State Office of Public Defense

B.     Spokesperson: Gideon Newmark, Appellate Program Manager

C.     Purpose: Washington State Rule of Appellate Procedure (RAP) 10.10 is an important feature of appellate public defense in Washington. It permits indigent clients to file a Statement of Additional Grounds (SAG), ensuring that clients are not forced to choose between having the benefit of appointed counsel and being able to raise the appellate issues they choose. But the SAG process is currently limited by the lack of state funding for clients to receive copies of the entire record. This suggested RAP amendment corrects this needless and detrimental limitation.

RAP 10.10(e) entitles clients in criminal cases to receive a copy of the transcripts on direct appeal, for the purpose of preparing a SAG. Under this subsection, attorneys print copies of the transcripts and send them to clients. OPD reimburses the attorneys for this expense. RAP 10.10(e) is silent as to clerk’s papers and exhibits, however, which OPD has long interpreted as not authorizing funding for clients to receive copies of these vital parts of the record.

Appointed attorneys are not ethically required to provide copies of the entire record to their clients at their own expense. As stated in Washington State Bar Association ethics opinion number 2117, while the client file ultimately belongs to the client, the lawyer is obligated to turn over the file only at the conclusion of the representation. Nothing in the ethics opinion suggests that lawyers for indigent clients must print out the file at their own expense to give their clients a copy during the representation. Because appellate attorneys in the present day work exclusively with electronic files, and because incarcerated clients are generally barred from possessing or reviewing electronic legal files, printing is necessary if clients are to be able to review the entire record when preparing a SAG.

Some appellate attorneys provide copies of clerk’s papers and exhibits to clients at their own expense, but many find they are not able to do so given the levels of compensation for indigent appellate defense. This is a frequent source of friction between lawyers and clients.

Clients often reasonably believe that if they are entitled to file a SAG, they should be entitled to review the entire record. While RAP 10.10(c) does not require citations to the record in a SAG, a SAG must identify the “nature and occurrence” of any errors. The RAP exempts the appellate courts from any requirement to search the record to support claim of error in a SAG. Thus, lack of access to the complete record makes drafting a SAG that identifies the “nature and occurrence” each issue much more difficult.

In order to fully implement the right to file a SAG and bolster access to justice in Washington, this Court should adopt this suggested rule amendment.

D.    Hearing: A hearing is not requested

E.     Expedited Consideration: Expedited consideration is not requested.

F. Supporting Material: Suggested rule amendment