By: Marc Robert Steinberg, Esquire
Among the many things criminal defense lawyers have to deal with in the representation of our clients is a Post Conviction Relief Act (“PCRA”) petition raising the ineffectiveness of counsel at trial, when the client is unhappy with the outcome. I realize some are valid complaints, but the majority are baseless, and just seek to blame the lawyer for the punishment of a crime the lawyer didn’t commit.
In the interesting case of Commonwealth v. Jerome King, 3251 EDA 2015, 167 A.3d 140 (Pa. Super. 2017), the Superior Court held that trial counsel did not have to cooperate with the District Attorney’s request for an ex parte interview with trial counsel prior to the PCRA hearing. The facts leading to the conviction and the PCRA are less important than the result of the interview request, so they won’t require review here. Instead, it was the PCRA counsel’s request to speak with trial counsel and the DA’s request for an ex parte interview with trial counsel that piques our interest.
PCRA counsel wrote to trial counsel, who ignored the letter and a phone call. When finally contacted, he replied, “You are nuts if you think I am going to help you.” PCRA counsel wrote to trial counsel asking him to consider his duty of loyalty to his former client, and not to speak or share any information with the Commonwealth. The DA requested a meeting with trial counsel, who rightly refused to do so, compelling the filing of a Motion by Appellee (the former client) seeking to preclude trial counsel from being interviewed by the DA. The PCRA court granted this motion and the Commonwealth appealed.
The appeal was accepted under Rule 313 of the Rules of Appellate Procedure, which permits an immediate appeal as of right.
The Superior Court decided that a claim of ineffectiveness in a PCRA proceeding constitutes a waiver of the attorney-client and confidentiality privileges. Further, the Court held that trial counsel was correct in refusing to meet with the DA and that a preclusion order was necessary because a private interview between the DA and trial counsel could “easily become a freewheeling inquiry into privileged matters that fall outside the scope of the ineffectiveness claims raised by Appellee. The Court said, “the only way to guard against this hazard is to order the Commonwealth to refrain from interviewing trial counsel in advance of the PCRA evidentiary hearing.”
The takeaway from King, is that despite your angst at being PCRA’ed, you cannot cooperate with the DA who wants to meet with you before the hearing so you can feel vindicated after the PCRA hearing. The Rules of Professional Conduct 1.9 and 1.6, and Commonwealth v. King should guide your actions.
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