For the Defense - Volume 2, Issue 4 - 2017 - 6

that "it was standard practice for the District
Attorney [of Philadelphia, the largest office
in the Commonwealth] to prepare for PCRA
hearings relating to trial counsel's performance
by interviewing trial counsel in private prior to
the hearing."7
The trial court granted the motion to preclude, relying on trial counsel's refusal to cooperate with PCRA counsel, the narrow scope of the
inquiry at the PCRA hearing, and the importance
of the attorney-client relationship.8 The court
noted, however, that the more appropriate relief
might have been directed at trial counsel rather
than to the District Attorney.
The Superior Court affirmed. Its ruling rested
both on an understanding of the scope of the
privilege waiver in an ineffectiveness claim and
on the nature of trial counsel's continuing ethical
duties to a former client.
The Court's privilege reasoning was broad
and independent of the case-specific facts
relating to trial counsel's hostility. Under the
Supreme Court's rulings in Commonwealth
v. Flor9 and Commonwealth v. Harris,10 an
assertion of ineffective assistance of counsel
waives the privilege only as to the particular
instances or claims of ineffectiveness, and
the attorney-client communication and work
product privileges survive as to all other
communications and work. For both the Flor
and Harris courts, the "mere potential" that
privileged material could be disclosed justified
orders to restrict prosecution access to defense
files and experts.11 Accordingly, the King Court
ruled that a preclusion order was necessary to
avoid that risk:
Therefore, we conclude that the PCRA
court in this case correctly determined
that a preclusion order was necessary. A
private interview between prosecutors
and trial counsel could easily become
a freewheeling inquiry into privileged
matters that fall outside the scope of
the ineffectiveness claims raised by
Appellee. As in Harris, the only way to
guard against this hazard is to order
the Commonwealth to refrain from
interviewing trial counsel in advance of
the PCRA evidentiary hearing.12

For The Defense | Vol. 2, Issue 4

The Superior Court then discussed another
reason to uphold the trial court's ruling: the trial
judge's inherent power to prevent a reasonably
anticipated breach of the ethical rules. The Court
cited two Rules of Professional Conduct: RPC
1.9 and 1.6. Rule 1.9 imposes a continuing duty
of loyalty to former clients. Rule 1.6 "precludes
disclosure of any other information gained in
the professional relationship that the client
has requested be held inviolate or that would
be detrimental to the client" - a restriction
that is broader than that of the attorney-client
privilege.13 While Rule 1.6(c)(4)'s so-called
"self-defense" exception to the privilege permits
disclosure to respond to a claim of ineffectiveness, that exception has a "reasonable necessity"
limitation. King's trial counsel's "uncooperative
attitude towards PCRA counsel" led the court to
believe that he would not respect those ethical
boundaries and that consequently, a preclusion
order was necessary.14

ABA Formal Opinion 10-456
The King court noted that the parties and two

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Table of Contents for the Digital Edition of For the Defense - Volume 2, Issue 4 - 2017