For the Defense - Volume 2, Issue 3 - 2017 - 49

However, the Superior Court did not hold
that a criminal trial attorney may never speak to
the prosecution, a specific ruling unnecessary to
resolve the issues in King. Nevertheless, the appellate court did reaffirm that a P.C.R.A. claim of
ineffective representation waives the attorney-client privilege only as to the specific issue of ineffectiveness raised. The court was clear that it will
not allow any procedure in which there is a risk
of disclosure of information beyond that relevant
to the specific P.C.R.A claim(s). Recognize that the
court was silent as to when that waiver of attorney client privilege as to the specific P.C.R.A. claim
kicks in - upon filing the P.C.R.A; upon the grant
of an evidentiary hearing as to a particular issue;
or at the hearing once it is clear beyond question
that the issue will be pursued.
The Court also declined to reach the ethics
rule issue:
The parties and two amici argue at
length regarding whether American Bar Association Ethics Opinion
10-456 barred trial counsel from
divulging information to prosecutors outside of a courtroom setting. Having already identified two
grounds for affirming the PCRA
court's order, we need not analyze
whether, and  to what extent, the
ABA opinion applies to this case.
Commonwealth v. King, 2017 PA Super 220.

So, what does this all mean?
1. If you are P.C.R.A. counsel, contact trial counsel
once your other investigation is complete and
you have identified the claims you wish to raise.
Ask her/him to debrief with you on the potential P.C.R.A. issues. Former counsel has a continuing duty of loyalty to former clients which
includes cooperating with a successor counsel's
investigation.
2. P.C.R.A. counsel must remind trial counsel
about the duty of non-disclosure to the prosecutor and ask that trial counsel maintain privilege and confidentiality until called as a witness during an evidentiary hearing.
3. P.C.R.A. counsel must document the specifics
of any conversation in which trial counsel was
reluctant to meet with P.C.R.A. counsel and/or
wants to meet with the prosecution.
4. Any reluctance on the part of trial counsel
to cooperate with P.C.R.A. counsel or maintain confidentiality until the time of the evidentiary hearing should be met with the
immediate filing of a motion to prohibit the
prosecution from interviewing trial counsel
ex parte.
If you were trial counsel in a case and are subsequently the subject of a P.C.R.A., you should
cooperate with P.C.R.A. counsel and advise the
prosecutor that unless ordered to do so by the
Court you will not discuss the case until on the
witness stand and ordered to answer questions
by the judge.

About the Author
Jules Epstein is Professor of Law and Director of Advocacy Programs at
Temple University, Beasley School of Law in Philadelphia, Pennsylvania. He
is a former partner at the law firm of Kairys, Rudovsky, Messing & Feinberg,
LLP where he remains of counsel. Professor Epstein teaches advocacy and
evidence courses and has participated in a variety of continuing legal education programs for lawyers and judges. He received his J.D. and B.A. from the
University of Pennsylvania School of Law.

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Vol. 2,
Issue 3 | For The Defense

49



Table of Contents for the Digital Edition of For the Defense - Volume 2, Issue 3 - 2017

Table of Contents
For the Defense - Volume 2, Issue 3 - 2017 - 1
For the Defense - Volume 2, Issue 3 - 2017 - 2
For the Defense - Volume 2, Issue 3 - 2017 - Table of Contents
For the Defense - Volume 2, Issue 3 - 2017 - 4
For the Defense - Volume 2, Issue 3 - 2017 - 5
For the Defense - Volume 2, Issue 3 - 2017 - 6
For the Defense - Volume 2, Issue 3 - 2017 - 7
For the Defense - Volume 2, Issue 3 - 2017 - 8
For the Defense - Volume 2, Issue 3 - 2017 - 9
For the Defense - Volume 2, Issue 3 - 2017 - 10
For the Defense - Volume 2, Issue 3 - 2017 - 11
For the Defense - Volume 2, Issue 3 - 2017 - 12
For the Defense - Volume 2, Issue 3 - 2017 - 13
For the Defense - Volume 2, Issue 3 - 2017 - 14
For the Defense - Volume 2, Issue 3 - 2017 - 15
For the Defense - Volume 2, Issue 3 - 2017 - 16
For the Defense - Volume 2, Issue 3 - 2017 - 17
For the Defense - Volume 2, Issue 3 - 2017 - 18
For the Defense - Volume 2, Issue 3 - 2017 - 19
For the Defense - Volume 2, Issue 3 - 2017 - 20
For the Defense - Volume 2, Issue 3 - 2017 - 21
For the Defense - Volume 2, Issue 3 - 2017 - 22
For the Defense - Volume 2, Issue 3 - 2017 - 23
For the Defense - Volume 2, Issue 3 - 2017 - 24
For the Defense - Volume 2, Issue 3 - 2017 - 25
For the Defense - Volume 2, Issue 3 - 2017 - 26
For the Defense - Volume 2, Issue 3 - 2017 - 27
For the Defense - Volume 2, Issue 3 - 2017 - 28
For the Defense - Volume 2, Issue 3 - 2017 - 29
For the Defense - Volume 2, Issue 3 - 2017 - 30
For the Defense - Volume 2, Issue 3 - 2017 - 31
For the Defense - Volume 2, Issue 3 - 2017 - 32
For the Defense - Volume 2, Issue 3 - 2017 - 33
For the Defense - Volume 2, Issue 3 - 2017 - 34
For the Defense - Volume 2, Issue 3 - 2017 - 35
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For the Defense - Volume 2, Issue 3 - 2017 - 37
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For the Defense - Volume 2, Issue 3 - 2017 - 40
For the Defense - Volume 2, Issue 3 - 2017 - 41
For the Defense - Volume 2, Issue 3 - 2017 - 42
For the Defense - Volume 2, Issue 3 - 2017 - 43
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For the Defense - Volume 2, Issue 3 - 2017 - 45
For the Defense - Volume 2, Issue 3 - 2017 - 46
For the Defense - Volume 2, Issue 3 - 2017 - 47
For the Defense - Volume 2, Issue 3 - 2017 - 48
For the Defense - Volume 2, Issue 3 - 2017 - 49
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For the Defense - Volume 2, Issue 3 - 2017 - 58
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