For the Defense - Vol. 7, Issue 1 - 15

Investigating Grand Jury Act. In Pennsylvania, attorneys are
generally prohibited from disclosing " matters occurring
before the grand jury, " 29
and the Court in In re Fortieth
confirmed that attorneys who are privately retained by
grand jury witnesses, and other attorneys who are " privy
to grand jury proceedings, " must generally be sworn to
secrecy.30
The Court
A key issue in In re Fortieth was whether private
counsel was required to sign an entry-of-appearance form
that included a secrecy oath requiring them to keep secret
" all matters and information concerning this Grand Jury
obtained in the course of the representation. " 31
held that this language exceeded the secrecy requirements
under 42 Pa.C.S.A. § 4549(b) of the Pennsylvania
Investigating Grand Jury Act, which only prohibits the
disclosure of " matters occurring before the grand jury. " The
language in the form was " too great an impingement on
counsel's ability to effectively represent their clients. " 32
The
Court, therefore, modified the form to reflect the actual
language in Section 4549(b).
As the Court observed, its curtailment of the nondisclosure
language in the entry-of-appearance form opened " a
wider field of information to disclosure among participants
in a common interest arrangement. " 33
The Court cautioned
that, " in the absence of some developed counter-advocacy " ,
counsel's secrecy obligations under Section 4549(b) still
serve as a " restraint on the range of information that will
be available to counsel to share per a privilege-extending
arrangement. " 34
Justice David N. Wecht took a different
view, which he articulated in his concurring in part and
dissenting in part opinion. Justice Wecht surmised that the
attorney appearance form exempts secrecy obligations
for disclosures that are authorized by law, and since joint
defense agreements are " authorized by law, " the form
does not impair joint defense agreements.35
Today, the scope of information that counsel may share
under joint defense agreements continues to be litigated,
and while counsel may share information under a joint
defense agreement in the grand jury context, counsel
must do so with caution. As previously mentioned, unless
authorized by the supervising grand jury judge, counsel
should not share with each other " matters occurring
before the grand jury. " This phrase is broad and includes
materials beyond what " transpires in a grand jury room, " 36
and includes materials that reveal " something about the
grand jury's investigation " and which may be subject to
nondisclosure, such as confidential submissions to the court
or search warrants issued in connection with an ongoing
grand jury investigation.37
Gag Orders as an Additional Obstacle to InformationSharing
Under Joint Defense Agreements
Witnesses are entitled to disclose their own grand jury
testimony, including through their attorneys.38
However,
the supervising judge may issue a " gag order " that
Vol. 7, Issue 1 l For The Defense 15
The Court, therefore, left open the possibility that
gag orders may become an obstacle to the exchange of
information under a joint defense agreement. While these
orders do not apply to a grand jury witness's disclosure to
their own attorney, the witness and the attorney would not
be permitted to share the testimony with co-counsel since
an attorney-client relationship does not exist between cocounsel
and the client.41
Crafting an Enforceable Joint Defense Agreement and
Sharing Information with Judicial Oversight in Mind
Given the lack of clarity around what may be shared
under a joint defense agreement in the context of a grand
jury investigation, sharing any information with counsel
under this agreement may invite judicial oversight. For
example, the supervising judge may want confirmation
that confidential information is not being shared with
anyone who is not sworn to secrecy or that counsel is not
sharing information that may compromise the grand jury's
investigation or the safety of witnesses. Depending on the
circumstances of the case, it may be prudent for counsel
to jointly seek clarification from the supervising judge
regarding the scope of information that may be shared,
because while attorneys are generally prohibited from
disclosing grand jury matters, such disclosures may be made
" when so directed by the court. " 42
prohibits a witness from disclosing their testimony " for
cause shown in a hearing. " 39
The Court in In re Fortieth
clarified in a footnote that its opinion should not be read to
restrict the supervising judge's authority to issue gag orders
under 42 Pa.C.S.A. § 4549 or any other special provisions
for confidentiality under the Investigating Grand Jury Act.40
Again, it is important to understand 42 Pa.C.S. § 4549(b):
(b) Disclosure of proceedings by participants
other than witnesses.--Disclosure of matters
occurring before the grand jury other than its
deliberations and the vote of any juror may be made
to the attorneys for the Commonwealth for use in
the performance of their duties. The attorneys for
the Commonwealth may with the approval of the
supervising judge disclose matters occurring before
the investigating grand jury including transcripts of
testimony to local, State, other state or Federal law
enforcement or investigating agencies to assist them
in investigating crimes under their investigative
jurisdiction. Otherwise a juror, attorney, interpreter,
stenographer, operator of a recording device, or
any typist who transcribes recorded testimony may
disclose matters occurring before the grand jury
only when so directed by the court. All such persons
shall be sworn to secrecy, and shall be in contempt
of court if they reveal any information which they
are sworn to keep secret.
For the Defense - Vol. 7, Issue 1

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