For the Defense - Vol. 3, Issue 2 - 2018 - 8
including members of the billing department
and the mail room, who in some way obtain
information about the client in the course of
this representation, requiring them to make that
affirmation in person and under oath? Taking
this practice to its logical extreme, we believe
the answer could be yes.5 Imagine the chaos
and expense to the client! The statute and the
rules simply cannot mean that entire law offices,
including lawyers and staff, must be gagged
pursuant to an order for which a judge refuses
to articulate cause and refuses to share with
counsel being gagged.
The "Entry of Appearance Form"
This brings us back to our hypothetical and
the not-so-hypothetical Entry of Appearance
Form. In a June 15, 2017 Opinion and Order
of the Supervising Judge of the 40th Statewide
Investigating Grand Jury of Allegheny
County Court of Common Pleas (No. CP-02MD-571-2016), Judge Krumenacker denied
counsel's request to strike the non-disclosure
requirements in the Entry of Appearance Form.
In his opinion, Judge Krumenacker held that the
non-disclosure language is "both authorized by
the [Grand Jury] Act and must be executed by all
attorneys who appear before a grand jury in any
capacity."6
An appeal is currently pending in the
Supreme Court of Pennsylvania.7
As noted above, the form prohibits counsel
from disclosure of "all matters and information
concerning this grand jury obtained in the
course of the representation." The form
prohibits disclosure far beyond Rule 231(C)
which defines "information pertaining to the
grand jury" as "testimony." Obviously, the
representation of a witness does not begin and
end with the appearance before the grand
jury - yet the form seemingly applies to any
and all information that counsel may learn or
develop concerning the underlying facts and
the mental state of the client. The "course
of representation" conceivably includes every
professional task counsel may perform in
connection with a client regardless of whether it
8
For The Defense
l
Vol. 3, Issue 2
was acquired in the actual grand jury room.
Prior to the grand jury appearance, effective
counsel must conduct an investigation into the
events relating to the investigation and his or her
client's role in order to make informed decisions
related to invocation of the Fifth Amendment
and any other testimonial privileges that might
be implicated. Moreover, counsel must be able to
take steps to insure the client's compliance with
any request for documents and adherence to the
oath.
After the client's testimony, counsel must
continue to seek out information that might
be relevant to the client, whether it relates to
correcting or clarifying testimony, engaging in
plea or immunity negotiations, in making proffer
statements or potentially defending criminal
charges arising out the grand jury investigation.
By virtue of the form's invocation of the secrecy
obligation relating to "any activity or proceeding
relating" to the grand jury investigation, counsel
is in effect gagged and prohibited from engaging
in the very activities that are required for an
effective representation. The gag would prevent
counsel from disclosing information to the
Commonwealth, to an investigator, to colleagues
under a common-interest agreement and arguably
to the client witness.
In addition to inhibiting the effective
representation of a witness client, the disclosure
prohibitions severely impair preparation for a
criminal trial in which the charges originated
from a grand jury investigation. Pursuant to
the statute, the disclosure prohibition does not
expire. Similarly, the Entry of Appearance form
appears to require indefinite silence. So, when
a grand jury investigation results in charges,
the lawyer representing grand jury witnesses
remains prohibited from speaking to the lawyer
for the target-now-defendant. This renders
defense counsel irrationally dependent upon the
Commonwealth for information that defense
counsel ought to be able to investigate and test
without adversarial gloss or interference.
This prolific and extreme form of gagging
defense counsel undermines the criminal justice
system. The law does not require that lawyers for
Table of Contents for the Digital Edition of For the Defense - Vol. 3, Issue 2 - 2018
Contents
For the Defense - Vol. 3, Issue 2 - 2018 - 1
For the Defense - Vol. 3, Issue 2 - 2018 - 2
For the Defense - Vol. 3, Issue 2 - 2018 - Contents
For the Defense - Vol. 3, Issue 2 - 2018 - 4
For the Defense - Vol. 3, Issue 2 - 2018 - 5
For the Defense - Vol. 3, Issue 2 - 2018 - 6
For the Defense - Vol. 3, Issue 2 - 2018 - 7
For the Defense - Vol. 3, Issue 2 - 2018 - 8
For the Defense - Vol. 3, Issue 2 - 2018 - 9
For the Defense - Vol. 3, Issue 2 - 2018 - 10
For the Defense - Vol. 3, Issue 2 - 2018 - 11
For the Defense - Vol. 3, Issue 2 - 2018 - 12
For the Defense - Vol. 3, Issue 2 - 2018 - 13
For the Defense - Vol. 3, Issue 2 - 2018 - 14
For the Defense - Vol. 3, Issue 2 - 2018 - 15
For the Defense - Vol. 3, Issue 2 - 2018 - 16
For the Defense - Vol. 3, Issue 2 - 2018 - 17
For the Defense - Vol. 3, Issue 2 - 2018 - 18
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