For the Defense - Volume 2, Issue 4 - 2017 - 9

and save everyone the trouble of pursuing
unfounded claims.

Finally, cooperation with PCRA
counsel will advance efficiency and
the search for truth. If trial counsel
indeed did investigate, research and
discuss the strategic questions that are
now questioned, he can educate PCRA
counsel and save everyone the trouble
of pursuing unfounded claims.

What to Do
King and the other authorities discussed here
suggest the following checklist for trial and
PCRA counsel:
1. Trial counsel should provide the entire file,
including notes and internal memoranda
and emails to successor counsel. She
should meet with successor counsel and
answer questions to the best of her ability
about the choices she made, the avenues
she pursued and those she did not and
why, whether these choices were documented or not.
2. If trial counsel retains portions of the file
and the prosecutor issues a subpoena or
formal discovery demand for the file, trial
counsel should notify the client and make
all non-frivolous objections to production.
Any arguably privileged or work product
documents should be produced only on
court order.
3. Trial counsel should answer prosecution
questions only at a hearing at which the
client or his attorney has an opportunity
to object.
4. PCRA counsel must notify trial counsel in
writing of her duty to avoid talking to the
prosecutor under ABA Formal Opinion
10-456 and under a good-faith extension
of Commonwealth v. King's reasoning.
Instruct trial counsel to maintain privilege
and confidentiality until called as a witness
at an evidentiary hearing.
5. PCRA counsel should instruct the prosecutor not to contact trial counsel.
6. PCRA counsel must document all communications with trial counsel and the
prosecution and make a King-like motion to
preclude, addressed both to the prosecutor
and trial counsel, if they do not affirmatively
agree to respect the ethical duties of continuing confidentiality and loyalty.34

lawyer shall take steps to the extent reasonably
practicable to protect a client's interests . . . ."32
As the State Bar of California put it:
We believe that the Rules of
Professional Conduct impose a duty
upon trial counsel to fully and candidly
discuss matters relating to the representation of the client with appellate
counsel and to respond to the
questions of appellate counsel, even
if to do so would be to disclose that
trial counsel failed to provide effective
assistance of counsel. This decision is
in accord with the general rule that
the attorney owes a duty of complete
fidelity to the client and to the
interests of the client. (See Clancy v.
State Bar (1969) 71 Cal.2d 140 [454 P.2d
329]; see also State Bar Formal Opinion
No. 1984-83.) And, inasmuch as the
attorney's duty to the client survives
the termination of the attorney-client
relationship, the fiduciary duty to the
former client requires the attorney to
protect the interests of the client and
make appropriate disclosure.33
Finally, cooperation with PCRA counsel will
advance efficiency and the search for truth. If
trial counsel indeed did investigate, research
and discuss the strategic questions that are
now questioned, he can educate PCRA counsel

Notes
1.
2.

2017 Pa. Super. 220, 2017 WL 2962050 (July 12, 2017).
2017 WL 2962050, *2.

Vol. 2, Issue 4 | For The Defense

9



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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