For the Defense - Vol. 8, Issue 3 - 45

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.
* 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.
ABA Formal Ethics Opinion 505 was issued on May 1, 2023, and
has caused some consternation among Pennsylvania Lawyers. This
Opinion states that there is no such thing as a " non-refundable "
fee, as all fees are subject to a prohibition against excessiveness.
The Opinion also prohibits placing advance fees into operating
accounts, requiring these fees to be placed in an IOLTA or other
trust account. However, despite the ABA's Opinion that " nonrefundable "
fees cannot exist, you will be pleased to know that,
by virtue of the differences between Model Rule 1.15 and PA Rule
1.15, non-refundable fees are alive and well in Pennsylvania. In fact,
Comment 7 to Rule of Professional Conduct 1.15 states -- " Lawyers
often receive funds from which the lawyer's fee will be paid. Unless
the fee is non-refundable, it should be deposited to a Trust account
and drawn down as earned. "
* All motions to dismiss pursuant to Rule 600 must be
made in writing.31
lawyers to place any fee into its operating account, if certain
conditions are met. RPC 1.15(i) provides that fees must be placed
in trust until " earned; " the Rule also permits the lawyer to place an
unearned fee into an operating account if there is informed consent
in writing to do so. Because neither Comment 7, nor RPC 1.15(i)
are in the Model Rules, the advice in Opinion 505 does not apply
in Pennsylvania. However, be sure to look at the Rules in any other
jurisdiction that your matter may have a " predominant effect. "
File your client's motion after the
* 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.
Based on my experiences representing Respondents before
the Disciplinary Board, I tell my clients who want to deposit fees
directly into their operating account to use extra caution in their
fee agreements. Though not strictly required by the Rule, I advise
specifying the fee as " earned upon receipt " AND include the fact
that the fee will be deposited directly into operating and not held in
trust. Make sure the fee agreement is in writing and counter-signed
by the client.
* 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.
Formal Opinion 506 was issued in June of this year and discusses
" Responsibilities Regarding Nonlawyer Assistants. " For many smallfirm
and solo lawyers, this Opinion is especially germane. The
Opinion warns against letting an assistant, even a knowledgeable
and experienced one, provide information about a client's case that
violates Rule 5.5's prohibition against assisting in the unauthorized
practice of law. As the Opinion states, a nonlawyer may " assist with
prospective client intake tasks including obtaining initial information
about the matter, performing an initial conflict check, determining
whether the assistance sought is in an area of law germane to the
lawyer's practice, assisting with answering general questions about
the fee agreement or process of representation, and obtaining the
prospective client's signature on the fee agreement. " However, the
client must always be " offered an opportunity to communicate with
the lawyer including to discuss the fee agreement and scope of
representation. " This is especially true if you are representing a client
for only one stage of their matter, for instance, a preliminary hearing,
or at sentencing. Pennsylvania Rule 1.2 (c) requires that the client
provide " informed consent " when the " scope of representation " is
limited. You cannot delegate the responsibility to ensure that your
client has given " informed consent " to a fee agreement that permits
you to deposit your fees into an operating account or limits your
representation to only one part of their matter.
Formal Opinion 507 was issued on July 12, 2023, and discusses the
ethics issues that can arise from office sharing arrangements. Again,
many of us, as small firms and solos share space, and even staff, with
other attorneys. However, as the Opinion notes, these arrangements
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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NOTES:
1
Further, Opinion 505 does not change the ability of Pennsylvania 4
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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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3 Commonwealth v. DeBlase, 665 A.2d 427, 431 (Pa. 1995).
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).
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
About the Author
Click here to view and/or print the
full notes section for this article.
About the Author
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
raise issues relating to " the confidentiality of information, conflicts
of interest, supervision of non-lawyers, and communications about
their services. The nature and extent of additional safeguards will
necessarily depend on the circumstances of each arrangement. " The
issues that I see in my practice from these arrangements are primarily
around confidentiality and conflicts of interest. It is inevitable that
lawyers practicing in shared spaces will talk about their cases. All of
us have gained insights or ideas from our colleagues in these collegial
discussions. However, in an office environment, it is very difficult to
have these discussions and protect confidential information. While
that in itself creates a problem, that problem gets exacerbated
when a co-defendant seeks representation from an office mate.
The confidential information that has been disclosed may prohibit
the subsequent representation. This is especially difficult in rural
counties where competent criminal defense lawyers are a scarce
commodity. The practice pointer here is: while your officemate is a
valuable resource as a sounding board or even a source of research,
be careful not to disclose a confidence that could disqualify them
from representing a co-defendant, a victim, or a witness.
Whether you " major " or " minor " in criminal defense work, you
will find these Opinions helpful guidance for your practice. The ABA's
Formal Opinions provide helpful guidance for all of us. As criminal
defense attorneys we are all ethics lawyers, daily confronting
difficult ethical dilemmas. Non ABA members can access Opinions
issued in the past year here.
Postscript: do not forget-if you find yourself in ethical
trouble-PACDL has a Lawyers' Assistance Strike Force. The Strike
Force assists PACDL members when they face threats of contempt,
disqualification, subpoenas for privileged information or other
similar issues because of their representation of a client. -You can
find more information about the Strike Force here.
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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
Vol. 8, Issue 3 l For The Defense 45
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 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 presents ethics training for the
American Bar Association (White Collar Crime Committee
and Center for Professional Responsibility), and the
National Association of Criminal Defense Lawyers, the
Pennsylvania Association of Criminal Defense Lawyers,
the Pennsylvania Bar Institute, and other county bar
associations.
https://www.americanbar.org/groups/professional_responsibility/publications/ethics_opinions/aba_formal_ethics_opinions_index_by_issue_dates/ https://www.pacdl.org/lawyers_assistance_strike
For the Defense - Vol. 8, Issue 3

Table of Contents for the Digital Edition of For the Defense - Vol. 8, Issue 3
