For the Defense - Vol. 8, Issue 1 - 16

Discuss this waiver with your client with the same
seriousness you would discuss the waiver of any
constitutional right.30
At a minimum, you must discuss the following:
*
Speak at the client's level of sophistication. Let's face it: pool counsel
gigs are good engagements with good payers. But do not let your
enthusiasm for the work lead you to downplay the risk to the client.
You will not feel comfortable, and you could do real harm to your
client and to yourself.
* 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.
the danger of a conflict arising in the future, your
duty to continue to monitor for it and how it will be
handled if it arises;
* how you will handle the client's confidential
information, including that the client's consent to
the attorney's use of confidential information for the
clients' mutual benefit will not be revocable;
* 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.
* how the attorney-client privilege will function
between and among the concurrently represented
clients;
*
* All motions to dismiss pursuant to Rule 600 must be
made in writing.31
the fact that the corporation (or another third party)
will be paying the lawyer's fees. You must ensure
that the client, and the payer both understand that,
despite the payment, the attorney-client relationship
and all its duties are between the client and the
lawyer, not the payer and the lawyer. The client must
give informed consent to this arrangement as well as
to the multiple representation.
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.
*
File your client's motion after the
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.
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1
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Commonwealth v. Mills, 162 A.3d 323 (Pa. 2017).
2 U.S. ConSt. Amend. VI; PA. CONST. art. 1, § 9.
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As the saying goes, a stitch in time, saves nine! The work you do up
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3 Commonwealth v. DeBlase, 665 A.2d 427, 431 (Pa. 1995).
4
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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).
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advise the client that they may wish to consult with
another lawyer on the question of whether to jump
into the pool. See New York City Bar Association Prof'l
Ethics Comm., Formal Op. 2019-4, " Representing
Multiple Individuals in the Context of a Government
or Internal Investigation. "
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).
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About the Author
* 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.
On the issue of how you will handle conflicts that arise in the
future, in general, I am not a fan of advance waivers, as it is impossible
for a client to know what conflict they are waiving until the events
arise. However, in this case, the possible triggers of a conflict are
somewhat predictable and can be specifically enumerated. Thus,
an advance waiver that gives the attorney the right to determine
how to resolve a conflict that arises should be part of the initial
client discussion and should also be included in the engagement
letter. This preserves the ability to keep the pool intact, even if one
client is conflicted out of it. Make sure that the client understands
the advance waiver and exactly what it means: that they will be left
without a lawyer and may need to start from scratch with someone
new.
* 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.
16 For The Defense l Vol. 8, Issue 1
After your interviews, what if you decide that one prospective
client does not fit into the pool? How do you convey that to company
counsel without betraying a confidence or creating an inference of
culpability? My advice is to be vague: tell company counsel that
the representation is not " a good fit " and that the client would be
better off with a different, or even their own lawyer. If necessary, fall
on the sword to deflect suspicion.
All of this groundwork will be worthless if these risks, your
advice about them, and your client's understanding of them are
About the Author
Click here to view and/or print the
full notes section for this article.
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
columns: the Professional Conduct column for the Legal
Intelligencer and For the Defense, a digital journal
published by the Pennsylvania Association of Criminal
Defense Lawyers. Ms. Brotman regularly present ethics
training for the American Bar Association, (White
Collar Crime Committee and Center for Professional
Responsibility,) the National Association of Criminal
Defense Lawyers, the Pennsylvania Association of
Criminal Defense Lawyers, the Pennsylvania Bar
Institute, and other county bar associations.
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
In addition to her practice representing lawyers before
the Disciplinary Board, she provides ethics opinions, and
serves as outside ethics counsel to local public defender
organizations and the in-house counsel department of
a large public university. In 2017, she founded her own
business, solo practice (BrotmanLaw) and legal ethics
blog.
For over 25 years, Ellen C.
Brotman has concentrated
in the areas of professional
responsibility, 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
front in advising your clients and assuring that they understand and
are comfortable with the arrangement will enable to take on this
rewarding and important work of protecting employees embroiled
in a government investigation, and to see it through to the end with
all of them.
not memorialized in an engagement letter. This letter must be
counter-signed by your client as proof that the advice has been
given and understood.
As we all know, there are times when investigations are quiet.
During these times, remain diligent! Calendar reminders to check
in with company counsel on the progress of the investigation. Have
new subpoenas been issued? Have any interviews been conducted?
Is an internal investigation ongoing or complete? In short, is there
anything you should know to ensure that a conflict has not arisen
while you were not watching.
https://www.ellenbrotmanlaw.com/
For the Defense - Vol. 8, Issue 1

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