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CCBA Feature

PENNSYLVANIA BAR ASSOCIATION FORMAL OPINION 2014-500: Prosecutors, Public Defenders & Criminal Defense Attorneys Beware

By Shannon K. McDonald, Esquire


n November 20, 2014, a formal opinion was issued by the Pennsylvania Bar Association with what may qualify as a shocking result. The inquiry was whether a prosecutor may propose, at an early stage of proceedings, that a defendant accept an early favorable or deferred disposition conditioned upon forgoing one or more of the following: a preliminary hearing, formal arraignment, receipt of discovery, bill of particulars, filing of an omnibus pretrial motion, or file notice of affirmative defenses. Furthermore, the committee asked whether a criminal defense attorney could ethically recommend acceptance of the prosecutor’s offer. The conclusion: it is unethical for a defense attorney to recommend any waiver of rights without actually ensuring its knowing and voluntary (which the committee posits the defense attorney cannot do without having discovery and adequate time for investigation). And, it is unethical for a prosecutor to recommend that a defendant or the defense counsel actually waive, and it is unethical for any program to require the individual to waive those rights. The committee went through both early alternative disposition (EAP) (a program

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non-existent in Chester County, but the court has similar programs) and ARD (which in this county requires you to give up all rights listed by the committee and then some). The committee then discussed that the failure of the defendant to accede to waiver will result in rejection from the program. This particular problem is something I have counseled many defendants about, when we discuss potential defenses which may arise and the impossibility of cross-examining the officer or witness before deciding to waive. Additionally, although the Public Defenders are known for having preliminary hearings in this county, many private defense attorneys make it standard practice to waive, because the prosecutors represent that they will give the defendant good will. Further, as PCRA counsel, I have run into a number of counties where the various defense attorneys have told me it was standard practice in their county to not file pretrial motions, or face the consequences. The opinion provides specific rules where they feel the defense counsel and the prosecutors are violating the Rules of Professional Conduct (“Rules”). The committee asserts that a defense counsel

cannot know if he or she is competent to take on the case, or is being competent in the resolution, without reasonable investigation (violation of Rule 1.1). The committee states an independent investigation by defense counsel cannot be adequate for reasonable investigation, instead, the defense counsel must know what the prosecutor is actually relying on in prosecuting the charges (violation of Rule 1.1; 1.7). A defense counsel, according to the committee, cannot either obtain informed consent from his client nor represent to the court that the defendant is acting knowingly and voluntarily if counsel does not have full and complete information (violation of Rule 1.1; 1.7; 8.4). The committee offers a reasoned opinion (well-reasoned or not is your call) and emphasizes the coercive nature of the failure to step in line. The committee reviews some unnamed counties’ prosecution practices of deeming attorneys who don’t waive as being “not team players,” subject defendants who refuse programs to less favorable treatment, and even employment interests of defense counsel. All of these were reviewed as conflicts of interest for Continued on page 25

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