For the Defense - Vol. 5, Issue 4 - 37

* All motions to dismiss pursuant to Rule 600 must be
made in writing.31 File your client's motion after the
365-day period has elapsed. If the trial judge rules
possibly
be subsequently
transferred to
lawyer in the
against
you and
theanother
Commonwealth
firm as long as, per Rule 1.18(d), " the disqualified
causes another substantial period of delay, file
lawyer is timely screened from any participation in
a new Rule 600 motion based on this additional
the matter and is apportioned no part of the fee
timetherefrom "
and litigate and
it prior
to anynotice
trial toispreserve
angiven
" written
promptly
objection
the additional
time period.
to thetoprospective
client. "
* At the Rule 600 hearing, after the defense has
Conclusion
made
a prima facie showing that the defendant
has not been brought to trial within 365 days,
Though consultations with potential clients
the Commonwealth bears the burden of proving
which do not result in a lawyer-client relationship
that " usually
they haveare
nonetheless
limited inacted
time with
and diligence.
depth and leave
This both
meansthe
thatprospective
after the defense
such
client has
andmade
the lawyer
free
a prima
showing,
it is the Commonwealth
(andfacie
sometimes
required)
to proceed no further, "
whothese
shouldindividuals
be required to
on its evidence
areputnonetheless
entitled to
but should
not allonly
of argue
the protection
and " some
the defense
after the afforded
clients. " Comment
Rule 1.18(c).
Commonwealth
has done[1]
so.of
Essentially,
a RuleHowever,
600
in
this
case,
protection
of
the
prospective
hearing should proceed in form almost identically client
be tempered
by Ifa the
commonsense
approach to
to a can
suppression
hearing.
judge asks you
the consultation, as well as an advance waiver of
to argue prior to the Commonwealth's evidence,
any conflicts before the interview. Remember that
make
it clear
that waiver
you could
not possibly
argueinformed
the
advance
requires
the client's
on behalf
of your client until you know what the
consent.
Commonwealth's evidence of diligence is.
Keep these principles in mind and you won't have
* If the Commonwealth appears at the Rule 600
to face the irksome situation of not being able to
hearing and does not present any evidence that
be hired by the client that wants you because of
it acted
diligence-for
instance, you.
they And
did not
the with
earlier
client who rejected
that will
bring
in
the
officer
to
testify
to
the
attempts
made
indeed be music to your ears!
to find and apprehend the defendant-argue that
theyNOTES:
have not met their burden because the burden
1
ABA Comm'n on Ethics and Professional Responsibility, Formal
of proof
includes
thehttps://www.americanbar.org/content/
burden of production and
Op. 492
(Jun. 2020),
dam/aba/administrative/professional_responsibility/aba-formalarguments
of counsel are not evidence.

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).

About the Author

For over 25 years, Ellen C.
Brotman has concentrated
Click here to view and/or
print the
in the areas of professional
full notes section forresponsibility,
this article.
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
Katherine
Ernst is an
columns: the Professional Conduct column for the Legal
appellate
attorney
with
the
Intelligencer and For
the Defense,
a digital
journal
Montgomery
County of
Public
published by the Pennsylvania
Association
Criminal
Defense Lawyers. Ms.
Brotman regularly
present ethics
Defender's
Office. She
training for the American
Bar
Association,
handles
appeals
from(White
all
Collar Crime Committee and Center for Professional
juvenile
to homicide,
Responsibility,) the units,
National
Association
of Criminal
and
she
also
formulates
Defense Lawyers, the Pennsylvania Association of
Criminal Defense Lawyers,
the Pennsylvania
Bar
legal strategy
for pre-trial
Institute,
and
other
county
bar
associations.
and trial units. Katherine graduated Magna Cum

About the Author

Laude from
Loyola
Law
School,
New Orleans
L E A D E Rto
S ,her
I N Fpractice
L U E N C Erepresenting
R S A N D S T Rlawyers
AT E G I Sbefore
TS
In addition
in 2007
and
was
on
law
review.
She
TO SERVE O
N PA Cshe
D L provides
COM
M I Tpracticed
Tethics
E E S opinions, and
the Disciplinary
Board,
at Kaufman,
Coren ethics
& Resscounsel
in Philadelphia
out defender
serves as outside
to local public
organizations
and
the
in-house
counsel
department
of
of law school, and thereafter did work in the
a large public university. In 2017, she founded her own
intersection of horseracing
law
and §1983
for a
by sending
a short
business, solo practiceApply
(BrotmanLaw)
and
legalemail
ethics
to
pacdl@pacdl.org
indicating
number
her passion
blog.of years before following
your committee of interest.
for indigent criminal defense.
A list of committees can be

WANTED:
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found on PACDL's website.

HEXIDECIMAL

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opinion-492.pdf.
2
Opinion at 7 (quoting Kuntz v. Disciplinary Board, 860
N.W.2d 117, 125 (N.D. 2015)); see also O Builders v. Yuna
Corp, 19 A.3d 966 (N.J. 2011) ( " information which is 'simply
detrimental in general to the former prospective client,' but
not 'prejudicial... within the confines of the specific matter in
which disqualification is sought' does not meet the standard of
'significantly harmful' " ).
3 Opinion at page 8.

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Vol. 4, Issue 4

l

For The Defense

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Lawyers Assistance
Lawyers
Strike ForceAssistance

Strike Force

PACDL's Lawyers Assistance Strike Force offers consultation to
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Contact
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you may
consult with an experienced
717.234.7403.
attorney to discuss a contempt citation, a
PANTONE

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7406C

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22/58/92

234/194/56

motion to disqualify, or a subpoena to
provide information. Your request for
assistance receives top priority from
experienced Pennsylvania attorneys who will
review your case. Contact www.pacdl.org. or
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Vol. 5, Issue 4 l For The Defense

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For the Defense - Vol. 5, Issue 4

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