For the Defense - Vol. 7, Issue 3 - 54

Discuss this waiver with your client with the same
seriousness you would discuss the waiver of any
constitutional right.30
* Request discovery early and in writing. That way,
if the Commonwealth fails to provide requested
discovery, any required continuance will be on
the prosecution. If you have to follow-up with the
Commonwealth about discovery they have failed to
hand over, be sure to memorialize such requests in
a writing such as an email.
Sharing Information Based on Common Interest
* If a continuance is required due to the
Commonwealth's failure of diligence, be sure to
put that on the record at the time the continuance
is requested. Even if the judge does not rule in
your favor, you have at least preserved the issue for
appeal.
365-day period has elapsed. If the trial judge rules
against you and subsequently the Commonwealth
causes another substantial period of delay, file
a new Rule 600 motion based on this additional
time and litigate it prior to any trial to preserve an
objection to the additional time period.
* All motions to dismiss pursuant to Rule 600 must be
made in writing.31
If the interests of the represented parties are aligned,
pool counsel or separate counsel representing an
individual may want to share certain information
with counsel for the organization who is paying for
the representation, pursuant to a common interest
agreement (or perhaps even a joint defense agreement).
The purpose of a common interest agreement is to
share information between counsel for parties who are
separately represented without waiving the attorneyclient
privilege.8
of the agreement in writing, especially if there are many
parties who want to participate in the common interest
agreement.
Separate counsel should be engaged if a concern
arises later in the representation that an individual
represented by pool counsel participated in wrongdoing
or is the subject or target of a government investigation.
Under those circumstances, pool counsel should stop
representing that individual immediately. Pool counsel
cannot represent someone whose interests are adverse to
the interests of their other clients.
Using the strategy above, people both in and
outside my office have had tremendous success with
Rule 600 motions. Oftentimes, just making it plain
to the Commonwealth that you intend to seriously
litigate this issue can get you results. It is only one
weapon in your arsenal, but because a win means
discharge, it is a potent weapon that should never
be overlooked.
Pa. R.P.C. Rule 1.13(d).
PANTONE
4 Rule 1.2 of the Pennsylvania Rules of Professional Conduct
2955C
CMYK
7406C
NOTES:
1
Such a warning was developed in response to Upjohn Co. v.
Commonwealth v. Mills, 162 A.3d 323 (Pa. 2017).
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HEXIDECIMAL
2 U.S. ConSt. Amend. VI; PA. CONST. art. 1, § 9.
Rule 4.3 of the Pennsylvania Rules of Professional Conduct
3 Commonwealth v. DeBlase, 665 A.2d 427, 431 (Pa. 1995).
4
United States, 449 U.S. 383 (1981).
6
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Barker v. Wingo, 407 U.S. 514, 530 (1972) (articulating the
constitutional test); Commonwealth v. Preston, 904 A.2d
1, 10 (Pa. Super. Ct. 2006) (the Barker test is an entirely
separate analysis from Rule 600 and therefore needs to be
raised separately).
It may be helpful to set forth the terms
File your client's motion after the
If the interests of a party to a common interest
* At the Rule 600 hearing, after the defense has
made a prima facie showing that the defendant
has not been brought to trial within 365 days,
the Commonwealth bears the burden of proving
that they have nonetheless acted with diligence.
This means that after the defense has made such
a prima facie showing, it is the Commonwealth
who should be required to put on its evidence
and the defense should only argue after the
Commonwealth has done so. Essentially, a Rule 600
hearing should proceed in form almost identically
to a suppression hearing. If the judge asks you
to argue prior to the Commonwealth's evidence,
make it clear that you could not possibly argue
on behalf of your client until you know what the
Commonwealth's evidence of diligence is.
Final Thoughts
Representing an entity is complicated and interesting
work, but it requires ongoing analysis of the information
that is being uncovered and willingness to change course
when necessary. It is key to recognize conflicts that could
arise and to follow up on unexpected leads. Counsel
for an entity may start out grappling with such ethical
issues alone, but, if a common interest or joint defense
agreement is established, counsel for the entity may have
the advantage of discussing these issues with counsel for
other represented parties.
PANTONE
2955C
CMYK
7406C
* If the Commonwealth appears at the Rule 600
hearing and does not present any evidence that
it acted with diligence-for instance, they did not
bring in the officer to testify to the attempts made
to find and apprehend the defendant-argue that
they have not met their burden because the burden
of proof includes the burden of production and
arguments of counsel are not evidence.
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1
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#153A5B
#EAC137
Special thanks to Fox Rothschild summer associate Josephine
Wenson of the University of Pittsburgh School of Law for
assisting in preparing this article.
2
See Upjohn Co. v. United States, 449 U.S. 383 (1981). In Upjohn,
the U.S. Supreme Court's decision addressed how corporate
counsel obtains information from employees to provide legal
advice to an entity. The Court held that communications with
54 For The Defense l Vol. 7, Issue 3
agreement or a joint defense agreement later diverge
from the interests of the other parties to the agreement,
for instance if that individual/entity cooperates with the
government against the others, that party must withdraw
from the common interest or joint defense agreement.
Simply notifying other counsel that the party and its
counsel will no longer participate in the agreement and
that no further information should be shared with them
is sufficient.
Pa.R.Crim.P. Rule 600(2)(a); see also Commonwealth
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).
5
misunderstanding. " Pa. R.P.C. Rule 4.3(a)&(c).
7
About the Author
Click here to view and/or print the
full notes section for this article.
represented, or by the shareholders. " Pa. R.P.C. Rule 1.13(e).
8
provides further guidance regarding dealing with unrepresented
persons. The Rule states, in part: " (a) In dealing on behalf of a
client with a person who is not represented by counsel, a lawyer
shall not state or imply that the lawyer is disinterested. . . .
(c) When the lawyer knows or reasonably should know that an
unrepresented person misunderstands the lawyer's role in the
matter, the lawyer should make reasonable efforts to correct the
It should be noted that joint representations are permitted.
The Pennsylvania Rules of Professional Conduct state: " A
lawyer representing an organization may also represent any
of its directors, officers, employees, members, shareholders, or
other constituents, subject to the provisions of Rule 1.7. If the
organization's consent to the dual representation is required by
Rule 1.7, the consent shall be given by an appropriate official
of the organization other than the individual who is to be
Pursuant to Rule 4.2 of the Pennsylvania Rules of Professional
Conduct, such communications should occur through counsel.
Counsel for one party should not be communicating directly
with an individual represented by another attorney outside of
the presence and/or permission of that individual's attorney. " Pa.
R.P.C. Rule 4.2.
About the Author
Jana Volante Walshak is a
Katherine Ernst is an
appellate attorney with the
Montgomery County Public
Defender's Office. She
handles appeals from all
units, juvenile to homicide,
and she also formulates
legal strategy for pre-trial
governs the allocation of authority between a client and a
lawyer, and Rule 1.4 governs communications between a lawyer
and a client. Pa. R.P.C. Rules 1.2 & 1.4.
5
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employees are covered by the entity's attorney-client privilege
and that disclosure of attorney work product requires a strong
showing of necessity and unavailability by other means. This
decision ultimately led to the development of a corporate
Miranda warning to be administered by corporate counsel,
informing an employee that the attorney represents only the
entity and not the employee individually, as described in further
detail in this article.
3
and trial units. Katherine graduated Magna Cum
Laude from Loyola Law School, New Orleans
in 2007 and was on law review. She practiced
at Kaufman, Coren & Ress in Philadelphia out
of law school, and thereafter did work in the
intersection of horseracing law and §1983 for a
number of years before following her passion
for indigent criminal defense.
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Vol. 4, Issue 4 l For The Defense 9
Partner in the Pittsburgh
office of Fox Rothschild LLP,
a national law firm, and a
member of the firm's WhiteCollar
Criminal Defense
& Regulatory Compliance
Group. She conducts internal
investigations for clients
across a wide range of
industries and represents and
defends corporations, their officers and executives, and
other professionals, including doctors and lawyers, in
investigations by local, state, and federal prosecutors.
Jana is a graduate of Grove City College and Harvard
Law School.
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