For the Defense - Vol. 9, Issue 4 - 41

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.
information is provided to a " self-learning " GAI
tool, that tool may use that information in other
cases, either outside the firm or within it. If that risk
cannot be eliminated, the lawyer must get the client's
informed consent BEFORE providing a GAI tool with
information " related " to a representation.
*
* All motions to dismiss pursuant to Rule 600 must be
made in writing.31
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.
Rule 1.4(a)(2) requires a lawyer to " reasonably consult with
the client about the means by which the client's objectives
are to be accomplished. " Lawyers should communicate
with clients about their use of AI technologies in their
practices, explaining how they are used and why.
This
communication could be incorporated as a paragraph in
a fee agreement, which if counter-signed, should provide
adequate informed consent. (Some corporate clients, in
their Outside Counsel Guidelines, are now requiring that
a firm disclose their use of GAI.)
*
* 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.
The all-important duty of confidentiality is a major
concern with GAI tools. Remember that Rule 1.6, the
duty of confidentiality protects " information relating
to representation of a client " and is far broader than
the attorney-client privilege. Just because a fact is not
" privileged " does not mean it is not a client confidence
that must be protected. Therefore, lawyers must ensure
that the GAI and AI tools they are using protect the
confidentiality of their client information. This includes
ensuring that any third-party vendor providing the GAI
tool has adequate protection against cyberthreats, is not
retaining client information after a case is over and is not
using your client's information as material that is gleaned
from to provide answers in any other case.
*
* 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.
The duty to supervise subordinate lawyers and nonlawyers,
as laid out in Rules 5.1 and 5.3, applies to their
use of GAI tools. Clear policies and training are required
to fulfill a lawyer's obligation to make " reasonable
efforts to ensure that the firm has in effect measures
giving reasonable assurance that all lawyers in the firm
conform to the Rules of Professional Conduct. " This
includes ensuring that associates, staff and outside
vendors understand how the use of GAI implicates the
ethical concerns raised above, is cognizant of them, and is
acting in accordance with them. An outsourced GAI tool
must be designed to protect confidentiality and security
of a client's information.
*
Of course, another question is, how to bill for the use
of a GAI tool? The question is whether it is an overhead
expense for which there is no charge or a billable expense?
The safe approach, if the lawyer wishes to bill use of the
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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Commonwealth v. Mills, 162 A.3d 323 (Pa. 2017).
2 U.S. ConSt. Amend. VI; PA. CONST. art. 1, § 9.
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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).
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
tool, is to ensure that the charge is reasonably based
on cost and not to use it as a " profit enhancer. " While
Rule 1.5 prohibits " excessive fees, " it provides limited
guidance on how " excessiveness " is measured. The best
tactic is to be clear about this in your engagement letter
so that the client has the ability to understand what the
charge encompasses and why and challenge it before the
letter is signed and the retention is final.
NOTES:
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About the Author
Click here to view and/or print the
full notes section for this article.
About the Author
PANTONE
3 Commonwealth v. DeBlase, 665 A.2d 427, 431 (Pa. 1995).
4
As GAI tools gain in sophistication and become more widespread,
we will be better able to appreciate their pitfalls and benefits through
experience. Tread carefully as you use these tools and ensure that you
understand all their implications for your practice. Be clear with your
clients and cautious with your staff. GAI provides a great opportunity
for us to do more for our clients with economy and efficiency. Through
its ability to digest and summarize huge amounts of discovery and
documents, it may be part of an answer to the crisis in accessibility
to the courts for those without the means to hire lawyers. We do not
know what the future will hold, but as lawyers with a duty to our
clients and to our profession, we can work together to shape a tool
whose benefits will outweigh its drawbacks.
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https://www.sdnyblog.com/files/2023/06/Castel-Chat-GPT.pdf.
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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
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.
Ellen Brotman of Brotman Law is
based in Pennsylvania, with offices
in Philadelphia and Washington,
D.C. Ellen founded her firm in
March 2017 and her practices
include professional responsibility
and ethics, criminal defense, and
appellate advocacy. She is licensed
to practice in Pennsylvania,
District of Columbia, and New
York. She has over thirty years of experience including
handling representations before the Disciplinary Board of
Pennsylvania, providing ethics advice, and representing
individuals in a wide-variety of high-profile white-collar cases.
Ellen is a member of the PACDL Board of Directors and a
recipient of the Charles P. Gelso President's Award.
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