For the Defense - Volume 2, Issue 4 - 2017 - 7

amici also presented extensive arguments about
the impact of American Bar Association Ethics
Opinion 10-456 (2010).15 That opinion interprets
Rule 1.6 similarly to the King court in that the
ABA emphasized that only that specific information reasonably necessary to respond to the
specific claim of ineffectiveness may be disclosed.
The ABA Opinion goes a step further than the
King court, however, and creates a rule that
trial counsel may not divulge any information to
prosecutors except in a courtroom setting.16
While the King court found it unnecessary
to evaluate the ABA position in order to affirm,
there is reason to believe that when presented
with the issue, the Pennsylvania courts will
adopt the ABA position. The ABA opinion relies
primarily on Rule 1.6's prerequisite of reasonable
necessity before a disclosure may be permitted, a
prerequisite also relied upon by the King court.17
The ABA's explanation of how the reasonable
necessity requirement applies to ineffectiveness
claims is sound: Many ineffectiveness claims suffer
dismissal without any evidentiary hearing, for
example, for failure to clear the many procedural

hurdles to post-conviction relief or because even
accepting that there was some deficient representation, no prejudice is shown.18 In all those
instances, pre-hearing disclosure is not necessary.
Even when a hearing is ordered, disclosure at the
hearing suffices to respond to the allegation of
ineffectiveness.19
Note, too, the breadth of the language used
in the King court's ruling. First, the Court feared
the prospect of "a freewheeling inquiry into
privileged matters that fall outside the scope
of the ineffectiveness claim;" the Court did not
trust the prosecutor and trial counsel to limit
the scope of the inquiry to the communications
or work-product relevant to the ineffectiveness
claim.20 Second, the Court believed that a preclusion order - a rather extraordinary intrusion
into a party's pre-hearing preparation - was
"the only way to guard against this hazard."21
And finally, the ruling did not permit the
prosecution some limited interaction with trial
counsel; it absolutely prohibited any pre-hearing
interview.22 This portion of the decision lacks any
suggestion that these concerns and this absolute

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Vol. 2, Issue 4 | For The Defense

7
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Table of Contents for the Digital Edition of For the Defense - Volume 2, Issue 4 - 2017
