For the Defense - Volume 2, Issue 4 - 2017 - 8
prohibition were unique to King's trial counsel;
rather, the Court relied on the Harris and Flor
precautions against the "mere potential" of
improper disclosures to fashion a strong rule
against a pre-hearing prosecution interview of
trial counsel.
Further, like the ABA, Pennsylvania law
demands that the client have an opportunity
to object in advance to disclosure.23 Thus in
Commonwealth v. Schultz, the Superior Court
held that one reason for dismissal of charges
resulting from counsel's testimony in the
grand jury against her former client was the
prosecution's failure to afford the client an
opportunity to object or to obtain a preliminary
court ruling on which questions may be asked.
The Schultz court relied on RPC 3.10, which
requires prosecutors to obtain court approval
before subpoenaing an attorney to testify against
his current or former client.24 Schultz's emphasis
on providing the client with an opportunity to
object and on restricting privilege waivers to
the narrowest bounds, concerns shared by the
King court, suggests that in the appropriate case,
Pennsylvania appellate courts will adopt Formal
Opinion 10-456's prohibition against answering
prosecution questions until asked at a hearing,
when the defense has an opportunity to object
and the judge a chance to measure the scope of
the waiver.
The Duty to Cooperate
with Successor Counsel
As important as King and Formal Opinion 10-456
are, they do not answer another important
question for trial counsel: to what extent is he
obligated to assist PCRA counsel and his former
client? Must he meet with new counsel and
explain the decisions he made?
The answer appears to be yes. The King
court noted that former counsel retains a duty
of loyalty to a former client under Rule 1.9(c),
although this discussion occurred in the context
of the continuing duty to preserve confidential
information.25
The King court's take on trial counsel's refusal
to cooperate, meet with, or even respond to
PCRA counsel's letters, sheds more light on what
it saw as former counsel's duty. It was this refusal
to assist his former client, not the fact that trial
8
For The Defense | Vol. 2, Issue 4
counsel had met with the prosecutor, which led
the court to hold that a meeting must be forbidden because trial counsel was unlikely to respect
ethical rules.26 The refusal to help the defense
made trial counsel ethically suspect in the court's
eyes; this reasoning implies that proper ethical
conduct entails readiness to assist one's former
client even in an ineffectiveness claim.
More support for this position can be found
in the Commonwealth Court's interpretation of
Rule 1.15(b) as requiring that former counsel is
obligated to furnish his client with all his work
product, including notes.27 Work product - the
attorney's research, thoughts, and planning
about the case - is the client's property. Work
product often is memorialized in notes and
memoranda, but not always. In many criminal
cases, attorneys do not make file memoranda
about all their meetings and thinking about
what legal and factual avenues to pursue and
which to forego.28
The work may have been done, but to
transmit it to the former client, the attorney must
meet and discuss it, or at least answer written
questions, much as the King PCRA counsel put in
a letter to his predecessor after five years of futile
calls and letters: "PCRA counsel wrote to trial
counsel asking whether he had a strategic reason
for not requesting a cautionary jury instruction
concerning "other acts" evidence introduced
during trial."29
Other authorities support the existence
of a duty to cooperate. The American Bar
Association's Guidelines for the Appointment and
Performance of Defense Counsel in Death Penalty
Cases dictate that predecessor counsel has "a
continuing duty to safeguard the interests of the
client and should cooperate fully with successor
counsel." This includes proving all information
concerning the representation to successor
counsel and cooperating with that counsel's
"professionally appropriate legal strategies."30
The United States Supreme Court has approved
this publication as a guide to what constitutes
reasonably effective representation.31
While the ABA Guidelines were crafted for
capital cases, this particular rule merely echoes
the general ethical rules. The rules on termination of a representation caution an attorney
that "[u]pon termination of representation, a
Table of Contents for the Digital Edition of For the Defense - Volume 2, Issue 4 - 2017
Table of Contents
Commonwealth v. Jerome King and Beyond: Trial Counsel’s Obligation to Cooperate with an Ineffective Assistance of Counsel Claim
United States ex rel. Petratos v. Genentech Inc. – The Third Circuit Embraces A Rigorous Pleading Standard for Materiality In False Claims Act Suits, But Leaves Healthcare Industry Defendants Vulnerable On Medicare Claims
Changes in the DUI Landscape: Acts 33 and 30
Police Misconduct Resulting in Arrest: Weighing the Options
Dying with Dignity: Compassionate Release in Pennsylvania
Amicus Matters
Attorney Discipline
Finding the Hidden Data in Technology to Defend Your Client
For the Defense - Volume 2, Issue 4 - 2017 - 1
For the Defense - Volume 2, Issue 4 - 2017 - 2
For the Defense - Volume 2, Issue 4 - 2017 - Table of Contents
For the Defense - Volume 2, Issue 4 - 2017 - 4
For the Defense - Volume 2, Issue 4 - 2017 - Commonwealth v. Jerome King and Beyond: Trial Counsel’s Obligation to Cooperate with an Ineffective Assistance of Counsel Claim
For the Defense - Volume 2, Issue 4 - 2017 - 6
For the Defense - Volume 2, Issue 4 - 2017 - 7
For the Defense - Volume 2, Issue 4 - 2017 - 8
For the Defense - Volume 2, Issue 4 - 2017 - 9
For the Defense - Volume 2, Issue 4 - 2017 - 10
For the Defense - Volume 2, Issue 4 - 2017 - United States ex rel. Petratos v. Genentech Inc. – The Third Circuit Embraces A Rigorous Pleading Standard for Materiality In False Claims Act Suits, But Leaves Healthcare Industry Defendants Vulnerable On Medicare Claims
For the Defense - Volume 2, Issue 4 - 2017 - 12
For the Defense - Volume 2, Issue 4 - 2017 - 13
For the Defense - Volume 2, Issue 4 - 2017 - 14
For the Defense - Volume 2, Issue 4 - 2017 - 15
For the Defense - Volume 2, Issue 4 - 2017 - 16
For the Defense - Volume 2, Issue 4 - 2017 - 17
For the Defense - Volume 2, Issue 4 - 2017 - Changes in the DUI Landscape: Acts 33 and 30
For the Defense - Volume 2, Issue 4 - 2017 - 19
For the Defense - Volume 2, Issue 4 - 2017 - 20
For the Defense - Volume 2, Issue 4 - 2017 - 21
For the Defense - Volume 2, Issue 4 - 2017 - Police Misconduct Resulting in Arrest: Weighing the Options
For the Defense - Volume 2, Issue 4 - 2017 - 23
For the Defense - Volume 2, Issue 4 - 2017 - 24
For the Defense - Volume 2, Issue 4 - 2017 - 25
For the Defense - Volume 2, Issue 4 - 2017 - 26
For the Defense - Volume 2, Issue 4 - 2017 - 27
For the Defense - Volume 2, Issue 4 - 2017 - 28
For the Defense - Volume 2, Issue 4 - 2017 - Dying with Dignity: Compassionate Release in Pennsylvania
For the Defense - Volume 2, Issue 4 - 2017 - 30
For the Defense - Volume 2, Issue 4 - 2017 - 31
For the Defense - Volume 2, Issue 4 - 2017 - 32
For the Defense - Volume 2, Issue 4 - 2017 - 33
For the Defense - Volume 2, Issue 4 - 2017 - 34
For the Defense - Volume 2, Issue 4 - 2017 - Amicus Matters
For the Defense - Volume 2, Issue 4 - 2017 - 36
For the Defense - Volume 2, Issue 4 - 2017 - 37
For the Defense - Volume 2, Issue 4 - 2017 - 38
For the Defense - Volume 2, Issue 4 - 2017 - 39
For the Defense - Volume 2, Issue 4 - 2017 - Attorney Discipline
For the Defense - Volume 2, Issue 4 - 2017 - 41
For the Defense - Volume 2, Issue 4 - 2017 - 42
For the Defense - Volume 2, Issue 4 - 2017 - 43
For the Defense - Volume 2, Issue 4 - 2017 - Finding the Hidden Data in Technology to Defend Your Client
For the Defense - Volume 2, Issue 4 - 2017 - 45
For the Defense - Volume 2, Issue 4 - 2017 - 46
For the Defense - Volume 2, Issue 4 - 2017 - 47
For the Defense - Volume 2, Issue 4 - 2017 - 48
For the Defense - Volume 2, Issue 4 - 2017 - 49
For the Defense - Volume 2, Issue 4 - 2017 - 50
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