Attorney-Client Privilege and Trial Counsel as a Cooperating Commonwealth PCRA witness

In an interesting decision, the Pennsylvania Superior Court upheld a PCRA court's order precluding the Commonwealth from interviewing and questioning trial counsel prior to the petitioner's case therein. In Commonwealth v. King, 2017 PA Super 220, PCRA counsel wrote to trial counsel in order to discuss ineffectiveness issues that the petitioner intended to raise. When trial counsel did not respond, PCRA counsel telephoned trial counsel who indicated that he would not cooperate with PCRA counsel. Accordingly, PCRA counsel wrote an additional letter asking trial counsel to reconsider and requested that trial counsel refrain from speaking or sharing information with the Commonwealth based on trial counsel's duty to his former client. After PCRA counsel filed an amended PCRA petition, trial counsel wrote a letter reiterating that he would not cooperate.

The PCRA court initially issued a notice of its intent to dismiss, but after counsel filed a supplemental petition, granted relief on a Brady claim. The Superior Court reversed and after the Pennsylvania Supreme Court denied review, the matter returned to the PCRA court on a number of issues that had not been previously decided. The PCRA court denied relief without a hearing as to the remaining issues, but on appeal was reversed as to denying a hearing on one of the petitioner's claims. PCRA counsel again attempted to correspond with trial counsel regarding that specific issue.

After trial counsel did not respond to letters and phone messages, PCRA counsel filed a motion to preclude the Commonwealth from interviewing trial counsel ex parte. The PCRA court granted that request and the Commonwealth filed a collateral (interlocutory) appeal. The Superior Court panel concluded that, by raising ineffective assistance of counsel claims, a petitioner does not waive his attorney-client privilege as to all matters. It highlighted that the PCRA statute was claim specific with regard to the waiver of attorney-client privilege. The panel also relied on the Rules of Professional Conduct, and the duties of an attorney to a former client to not reveal information.

Trial counsel should thus be careful only to disclose information specific to a specific ineffectiveness claims if/when he or she is contacted by the prosecution. PCRA counsel also should, if trial counsel refuses to cooperate, consider seeking to preclude the Commonwealth from having broad-based discussions with trial counsel. Whether this decision will be granted review and upheld by the Pennsylvania Supreme Court could prove interesting. Undoubtedly, the Pennsylvania District Attorney's Association will seek to reverse this decision so stay tuned.