For the Defense - Volume 2, Issue 4 - 2017 - 10

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Id.
Id.
Id.
Id.
Id.
Id.at 3. According to the Superior Court, other trial
judges in Philadelphia County had reached the opposite
result on the same issue. Id.. at 4.
136 A.3d 150, 160-61 (Pa. 2016)(holding that trial
counsel who was ordered to produce his file to the
Commonwealth in a PCRA proceeding must be allowed
time to conduct a review and withhold documents that
remain protected by either the attorney-client communications privilege or attorney work product doctrine).
32 A.3d 243, 248 (Pa. 2011)(holding that the
Commonwealth could not hire a psychologist who
testified for the defense as the Commonwealth's
expert in the PCRA proceeding because of the risk that
privileged information could be disclosed). See also
Commw. v. Chmiel, 738 A.2d 406, 424 (Pa. 1999) (holding
that "an attorney may not respond to allegations of
ineffectiveness by disclosing client confidences unrelated
to such allegations").
See Flor, 136 A.3d at 160; Harris, 32 A.3d at 252-53.
Commw. v. King, 2017 WL 2962050, *6.
See Rule 1.6 Comment, n. 3 ("The confidentiality rule,
for example, applies not only to matters communicated
in confidence by the client also to all information
relating to the representation, whatever its source.") &
n.4.
King, 2017 WL 2962050 at *6 ("The circumstances of
this case indicated that trial counsel, left unchecked,
might share client confidences and secrets with the
Commonwealth in violation of his duties under Rules 1.9
and 1.6.").
Id. at *7.
ABA, Comm'n on Ethics & Prof'l Responsibility, Formal
Op. 10-456 (July 14, 2010) (Disclosure of Information

17.
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27.

to Prosecutor When Lawyer's Former Client Brings
Ineffective Assistance of Counsel Claim) (available at
https://www.americanbar.org/content/dam/aba/images/
crsj/DPDPRP/ethics_opinion_10_456.authcheckdam.pdf).
King, 2016 WL 2962050 at *6.
ABA Formal Op. 10-456 at 5. See Jenna C. Newmark, The
Lawyer's "Prisoner's Dilemma:" Duty and Ineffectiveness
in Postconviction Ineffectiveness Claims, 79 Fordham L.
rev. 699, 705-07 (2010).
ABA Formal Op. 10-456 at 5. See also King, 2016 WL
2962050 at *3 (trial court noted that in light of the
narrowness of the claims and the scope of the hearing,
efficiency in preparation was not a consideration).
King, 2017 WL 2962050 at *6. Although the King court
did not mention it, given the narrowness of the ineffectiveness claim - failure to request a cautionary instruction at trial - communications with the client likely had
no relevance and were not placed in issue. But the King,
Harris, and Flor decisions also protect work-product: the
attorney's thinking about pre-trial and trial decisions.
King, 2017 WL 2962050 at *6.
Id.
See ABA Formal Op. 10-456 at 2; Pa. RPC 1.6, comment,
n.19 ("Absent informed consent of the client to do
otherwise, the lawyer should assert on behalf of the
client all non-frivolous claims that the order is not
authorized by other law or that the information sought
is protected against disclosure by the attorney-client
privilege or other applicable law.").
133 A.3d 294, 306 & n.14, 327-28.
King, 2017 WL 2962050 at *6.
Id.
Maleski v. Corporate Life Ins. Co, 641 A.2d 1, 6 (Pa.
Cwlth 1994).

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About the Author
Thomas J. Farrell is a partner in the firm of Farrell & Reisinger LLC in Pittsburgh. Mr. Farrell's practice
focuses on criminal defense, ranging from pre-indictment investigations and negotiations and the
representation of witnesses and victims, to trials, appeals and post-conviction petitions; from white collar
matters such as health care fraud, tax evasion, complex securities frauds, and environmental crimes, to
capital murder. He is a member of the PACDL Board of Directors. Mr. Farrell is the author of the practical
two-volume treatise Criminal Defense Tools and Techniques (James Publishing 2017) and the "Trial"
chapter in the Third Circuit Criminal Handbook (Matthew Bender Rev. ed. 2017).

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