For the Defense - Vol. 6, Issue 4 - 24

Discuss this waiver with your client with the same
seriousness you would discuss the waiver of any
constitutional right.30
* Request discovery early and in writing. That way,
if the Commonwealth fails to provide requested
discovery, any required continuance will be on
the prosecution. If you have to follow-up with the
Commonwealth about discovery they have failed to
hand over, be sure to memorialize such requests in
a writing such as an email.
* If a continuance is required due to the
Commonwealth's failure of diligence, be sure to
put that on the record at the time the continuance
is requested. Even if the judge does not rule in
your favor, you have at least preserved the issue for
appeal.
We have agreed that the fee in this matter is a flat,
* All motions to dismiss pursuant to Rule 600 must be
made in writing.31
non-refundable fee which is earned upon receipt
and covers the following work (insert scope of the
engagement.) As such, it will not be placed in an
attorney trust account to be billed against.
365-day period has elapsed. If the trial judge rules
against you and subsequently the Commonwealth
causes another substantial period of delay, file
a new Rule 600 motion based on this additional
time and litigate it prior to any trial to preserve an
objection to the additional time period.
* At the Rule 600 hearing, after the defense has
made a prima facie showing that the defendant
has not been brought to trial within 365 days,
the Commonwealth bears the burden of proving
that they have nonetheless acted with diligence.
This means that after the defense has made such
a prima facie showing, it is the Commonwealth
who should be required to put on its evidence
and the defense should only argue after the
Commonwealth has done so. Essentially, a Rule 600
hearing should proceed in form almost identically
to a suppression hearing. If the judge asks you
to argue prior to the Commonwealth's evidence,
make it clear that you could not possibly argue
on behalf of your client until you know what the
Commonwealth's evidence of diligence is.
This language should protect you both ways: first by
establishing that you are not receiving an advance fee that has
to be deposited into a trust account and second by getting the
client's informed consent to deposit the fee in the operating
account, notwithstanding how the fee is characterized. You
should also be aware that, while you say that the fee is " nonrefundable, "
it is still subject to Rule 1.5's requirement that the
fee not be " excessive. " A fee that is negotiated to cover 20
hours of work may need to be partially refunded if a case only
requires two hours. Considering this, it is also a good idea to
keep track of the time and efforts that you spend on a case.
File your client's motion after the
Another practice tip on fees: many of our clients want to pay
* If the Commonwealth appears at the Rule 600
hearing and does not present any evidence that
it acted with diligence-for instance, they did not
bring in the officer to testify to the attempts made
to find and apprehend the defendant-argue that
they have not met their burden because the burden
of proof includes the burden of production and
arguments of counsel are not evidence.
24 For The Defense l Vol. 6, Issue 4
Vol. 4, Issue 4 l For The Defense 9
by credit card. Credit card payments can be made both into
the IOLTA account and the Operating Account. While this is
not intended to be an endorsement, and is provided only by
example, our firm uses Law Pay, a third-party online transaction
processing service provider specifically developed for lawyers.
It is a simple payment management solution that correctly
separates earned and unearned fees and protects your IOLTA
account. First, from a cybersecurity perspective, LawPay's
technology exceeds PCI Data Security Standards https://www.
pcisecuritystandards.org/pci_security/, which means all sensitive
data is completely protected. LawPay will accept payments
through credit card or eCheck and integrate payments with
your legal and banking software. Invoices sent by email can
include a " pay now " link for ease of payment, or a request for
a trust payment can be made that will then be deposited into
your trust account. This type of third-party service protects the
firm from having to worry about protecting client's financial
data and makes payments and accounting far easier. Of course,
fees apply which can be charged back to clients as expenses if
that provision is included in your fee agreement.
I also recommend including the following items in your fee
agreement, not necessarily in order of importance: a specific
description of the scope of the engagement; that you may
be using contract attorneys or associates to assist with the
5
a Trust Account unless the client gives their informed consent,
confirmed in writing, to the handling of fees ... in a different
manner. " The Disciplinary Board and the Supreme Court have
consistently held that flat fees must be maintained in trust
until the fee has been earned by performing the services. In
ODC v. Ostrowski, 135 DB 2008 (2009) and cases following it,
the Board stated: " The mere language that the $3,000 was a
" flat fee " is insufficient to transform the retainer automatically
into Respondent's personal property. Respondent should have
deposited the funds into a trust account. " If you are negotiating
a flat non-refundable fee - include these magic words in your
agreement: " earned upon receipt. " Once you include this
language, theoretically, at least according to Ostrowski, you
should be able to deposit the fee in your operating account
without fear. However, the belt and suspenders approach that
I recommend is to include the following language in your fee
agreement and then have your client counter-sign it:
Using the strategy above, people both in and
outside my office have had tremendous success with
Rule 600 motions. Oftentimes, just making it plain
to the Commonwealth that you intend to seriously
litigate this issue can get you results. It is only one
weapon in your arsenal, but because a win means
discharge, it is a potent weapon that should never
be overlooked.
PANTONE
2955C
7406C
CMYK
90/78/39/30
9/22/91/0
NOTES:
1
RGB
22/58/92
234/194/56
Commonwealth v. Mills, 162 A.3d 323 (Pa. 2017).
2 U.S. ConSt. Amend. VI; PA. CONST. art. 1, § 9.
HEXIDECIMAL
#153A5B
#EAC137
representation, including appearances in court; that you will
endeavor to return calls and emails within 24 hours but when
you are on trial this may be difficult; that both parties agree
to communicate by email, despite cyber-risks; that you may
terminate the client with x weeks of notice (if permitted by the
court and RPC 1.16 - a whole separate column for the future);
and your file retention policy.
3 Commonwealth v. DeBlase, 665 A.2d 427, 431 (Pa. 1995).
4
I am not going to repeat all the advice from the earlier
article on record-keeping requirements for IOLTA accounts, but
I entreat you to re-read it if you have questions. However, if
you have client funds in IOLTA, remember that you must be
maintaining a general ledger, individual client sub-ledgers and
reconciling both to the bank statement monthly. You must
keep these financial records, including your fee agreement for
five years and you may be subject to a random audit.
Barker v. Wingo, 407 U.S. 514, 530 (1972) (articulating the
constitutional test); Commonwealth v. Preston, 904 A.2d
1, 10 (Pa. Super. Ct. 2006) (the Barker test is an entirely
separate analysis from Rule 600 and therefore needs to be
raised separately).
Pa.R.Crim.P. Rule 600(2)(a); see also Commonwealth
v. Kearse, 890 A.2d 388, 395 (Pa. Super. Ct. 2005) (no
" prejudice " need be shown to obtain Rule 600 dismissal).
While Rule 600 has a more definitive time period, the sole
focus of Rule 600 is on the action of the Commonwealth.
Thus, a constitutional argument should be forwarded
when a delay prejudices a defendant and that delay was
primarily caused by the courts.
6 Pa.R.Crim.P. Rule 600(D)(1).
NOTES:
1
About the Author
Click here to view and/or print the
About the Author
full notes section for this article.
With all of the pressures and stress of the criminal defense
practice, it is important to ensure that your practice management
issues do not interfere with your ability to get to the fun part of
your practice: defending your clients and winning cases.
9
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issue4_2019/index.php#/p/24
For over 25 years, Ellen C.
and trial units. Katherine graduated Magna Cum
Laude from Loyola Law School, New Orleans
in 2007 and was on law review. She practiced
at Kaufman, Coren & Ress in Philadelphia out
of law school, and thereafter did work in the
intersection of horseracing law and §1983 for a
number of years before following her passion
for indigent criminal defense.
Share this article
Conduct column for the Legal Intelligencer and For the
Defense, a digital journal published by the Pennsylvania
Association of Criminal Defense Lawyers. Ms. Brotman
regularly present ethics training for the American Bar
Association, (White Collar Crime Committee and Center
for Professional Responsibility,) the National Association
of Criminal Defense Lawyers, the Pennsylvania Association
of Criminal Defense Lawyers, the Pennsylvania Bar
Institute, and other county bar associations.
Katherine Ernst is an
appellate attorney with the
Montgomery County Public
Defender's Office. She
handles appeals from all
units, juvenile to homicide,
and she also formulates
legal strategy for pre-trial
In addition to her practice representing lawyers before
the Disciplinary Board, she provides ethics opinions, and
serves as outside ethics counsel to local public defender
organizations and the in-house counsel department of
a large public university. In 2017, she founded her own
business, solo practice (BrotmanLaw) and legal ethics blog.
Brotman has concentrated
in the areas of professional
responsibility, ethics and
compliance counseling and
criminal defense. She is a
frequent presenter and author
on ethics issues in local and
national venues and authors
two regularly published
columns: the Professional
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For the Defense - Vol. 6, Issue 4

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