The Philadelphia court system has never appreciated court-appointed counsel. For about 30 to 40 years, there was a hardcore group of lawyers who handled almost all the indigent conflict cases. The small group was about one-tenth of 1 percent of the lawyers who practiced in Philadelphia. This small percentage of lawyers assumed the burden for all lawyers in indigent criminal defense to ensure people had adequate representation. The rates of pay have been almost miniscule. At times, big firms will get involved, but unlike court-appointed counsel, the big-firm lawyers still get their salaries. Court-appointed lawyers don't get paid for the time they work on these matters until years later and at a miniscule rate of compensation.
When there were discussions about raising rates and reforming the Philadelphia court-appointed system, many of the older lawyers were told they were no longer wanted or they were too old. Lawyers who had done capital cases for years were told they weren't going to qualify. That did not go unnoticed by many members of the bar who had handled these cases for years. It greatly reduced the morale. Instead of encouraging a professional indigent defense bar dedicated to representing indigent criminal defendants, the court system went out of their way to discourage such a practice.
Now that Philadelphia courts refuse to have an indigent defense system that adequately compensates the lawyer, the court system is trying to force down on those who get court appointments the PCRA appointments. Every lawyer is supposed to get one or two or more, depending on the backlog. Many have declined, but they are told they can't decline. This creates an impossible situation.
The bottom line is the Court of Common Pleas should not be forcing people to do cases they don't want. If the court wants to force PCRA representation, then every lawyer in Philadelphia who practices ought to then be given these assignments. It should not be just limited to lawyers who are doing court appointments at these reduced rates. But, there are ethical concerns also. In this modern era, the courts seem to push their problems on the bar. Perhaps judges assumes all lawyers are making huge amounts of money. On the contrary, in Philadelphia many court-appointed lawyers are making next to nothing, usually less than a beginning school teacher would make, if that. Judges, particularly those who were never in private practice for long and didn't have to make payroll, have no concept of overhead. Most of the Common Pleas judicial officers get overhead for free by the county, as they should. But, that overhead of a very convenient and nice office, secretarial staff, law clerk, access to Westlaw or Lexis, papers, health insurance, etc. to have an overhead of somewhere between $250,000 to $500,000 on the market. For the judge then to make their salary with that type of overhead in terms of a private practice would require them to bring in about $800,000 a year. Perhaps if one is doing a major personal injury practice, that could be done but for most lawyers who grind out legal fees, the life of a lawyer is usually 16-hour days, seven days a week. Further, most lawyers can't afford a major personal injury practice since most major personal injury cases require expenditures in advance of anywhere between $20,000 to $50,000 to $100,000, depending on the size of the case. Very few lawyers are in a position to advance that type of cost.
Pennsylvania Rules of Professional Conduct for lawyers encourage lawyers to take court appointments, but there are limitations. In the Rules of Professional Conduct, Rule 6.1 urges lawyers to render public interest legal services. Rule 6.2 of the Rules of Professional Conduct involve appointments. The rule notes a lawyer should not seek to avoid appointments from the court to represent a person except for good cause to decline. There are three examples in Rule 6.2 of good cause. The first example is when representing a client would result in the violation of the rules of conduct, such as a conflict of interest. Second, is if representing a client is likely to result in unreasonable financial burden on the lawyer. Third is if the case is so repugnant to the lawyer as to impair the attorney-client relationship or the lawyer's ability to represent the client.
In these court-appointed cases, it clearly is an unreasonable financial burden to require a lawyer to handle a PCRA case if they don't want to. There is no chance of reasonable payment on a timely basis and when the payment is made, it's at these less than paralegal billing hourly rates and is going to be cut. One most remember the Philadelphia fee system for court-appointed counsel was negotiated in 1992 by this present writer. But, the deal was that the fee was to be increased every year by 10 percent. Of course, that never happened. The fee was low back in 1992, but with the 10 percent increase it would have been manageable. But, the court broke its agreement and failed to do so. There is now a committee examining a new structure for court-appointed cases.
For lawyers who do any indigent work, to do PCRAs can be a tremendous financial burden. There are many lawyers who try indigent criminal cases who are on the trial list because they want to try the cases or like trials or will use it to gain trial experience. But, many of these lawyers do not necessarily have the skills to do PCRAs or appellate work. Therefore, it's very odd that the system will not allow lawyers to decline the PCRA appointments when the declination is done immediately and for financial reasons, i.e., they don't pay enough and don't pay timely. Further, why should the few people, which are less than probably 1 percent of the bar in Philadelphia, who do these court-appointed cases and help the court be punished for doing so by being forced to take on PCRAs when the system financially will not pay reasonably. If the system feels they are not getting enough lawyers, there is no reason why all other lawyers shouldn't just be handed these appointments. Of course, if that was done, there would be such an outcry by the civil bar and those who fund the judicial campaigns that that would go nowhere. But, court-appointed lawyers are often powerless in terms of the political system and contributions to judicial offices. Therefore, the court tries to solve the problem by putting the burden on the lawyers and if they are suspended because they cannot handle the case timely then that is too bad.
Most attorneys who are getting these unwanted PCRA appointments are doing court-appointed work and at miniscule rates. The question is, is it unethical for a court system to impose such draconian requirements of doing PCRAs when they are not wanted by the lawyers?
It must be remembered that these lawyers are already doing a lot of indigent defense work and should have the right to refuse cases where there is ridiculously low payment. This is not a situation where a lawyer gets a few appointments a year and does the appointment as a favor to the court. People who do indigent defense work have a large part of their practice of handling indigent defense cases. One wants to encourage that, not discourage the lawyer dedicated to indigent defense.
In the Code of Judicial Conduct, under Rule 2.13 titled "Administrative Appointments," a judge in making appointments has to exercise the appointment with impartiality and on the basis of merit. Randomly requiring everyone to do PCRAs, particularly those who don't do PCRAs, seems to violate that rule. In the administrative appointment rules, there are prohibitions about appointing lawyers who have made contributions to a judge's campaign. But, the rule is defective in that there is no rule about giving lawyers appointments when they don't want them or the lawyers are already handling a substantial number of indigent defense appointments. That, unfortunately, is a major omission in the rule. But, there are other rules that perhaps would be violated. For instance, Rule 1.1 requires a judge to uphold confidence in the judiciary. Rule 2.2, requires a judge to uphold the laws, fairly and impartially. Rule 2.3 forbids harassment by judicial officers. Rule 2.6 requires giving every person the right to be heard.
The problem by forcing lawyers who don't want PCRAs to accept them because they are on the general appointment list with the implied threat that then you don't get any court appointments at all, the above rules may be violated.
The consequences to lawyers can be severe. As a result of being forced to participate with inadequate pay, the work product might not be good or a person might not get the best representation. Just looking at the number of Finley letters which the lawyer is filing stating there are no issues. This by itself suggests that there may be some problems with the current PCRA appointments. Of course, the court system doesn't care, because it has been a numbers game.
The court system once used to respect the knowledge and scholarship and experience of a judge. Now, those judges who get the highest approval are those who move the most number of cases. In other words, in Philadelphia and perhaps many jurisdictions it's a numbers game now. Whether the numbers reflect fairness or not is of no concern to the system. If a judge has high disposition numbers, they are the hero within the judicial system. The PCRA is just another example. While forcing everybody to take them, they're off the list and if the people don't get good representation, who cares. Let the person then try to deal with that later. Or if the lawyer can't handle it because he's already said he's too busy and then loses his law license or receives public discipline or private discipline, that's their problem.
It's not a good system and it shouldn't be done that way. It's really time to revamp all the court-appointed systems in Pennsylvania. First and foremost, the counties should no longer have to fund indigent defense. That's one of the biggest problems. Funding should come statewide. Second, there should be a uniform court-appointed system and not this hodge podge system where each county has different systems and different rates, etc. Third, there has to be a great increase in payment. If the people are going to be arrested and the public wants people to have to go to trial, then the public has to be willing to pay for it. The court system and the Pennsylvania Supreme Court have to do something about this hodge podge and disgraceful system. The legacy of Gideon, the famous Supreme Court case on the right to counsel in felony trials really no longer exists in Pennsylvania. It's honored in the breach and in name only.
The current problem with appointments of PCRAs in Philadelphia is just a classic example of a system that is not correcting itself, but only trying to force people to make the numbers look good. It's not a way to run a court system and it is now time to develop a real court-appointed system, funded by the state with uniform standards. The Pennsylvania Supreme Court has statewide jurisdiction over all lawyers. The Pennsylvania Supreme Court has the ultimate power under Article 5 of the Pennsylvania Constitution for the judicial system. The Pennsylvania Supreme Court has to come in and correct these problems which go far beyond just forcing people to accept PCRA appointments. But, now is the time and there is nothing more important in the judicial system then to insure fair trials and hearings. The current court-appointed systems rely on the good will and unappreciated efforts of people who have been doing it for years and are now being punished by being forced to take PCRAs. It's time for change. Unfortunately, nothing is going to happen, nothing is going to change, and it will probably be just 10 times worse in the next 10 years. But, hope springs eternal.
What are my duties if a client presented to me evidence that would be very useful in the case, but that the client illegally obtained? Can I use it either directly or indirectly or am I prohibited from doing so?
One would think that the answer is very straightforward. The answer is a lawyer cannot use documents illegally obtained by a client, directly or indirectly. Under certain circumstances, there may be an obligation to disclose certain material.
Lawyers always must look at Rule of Professional Conduct 1.6 when a client hands them illegally obtained material. This is the confidentiality rule. But, there are exceptions to that rule. Under Rule 1.6(c), a lawyer may, although it's not mandatory, disclose certain material or information to prevent or rectify consequences of a client's criminal or fraudulent acts in the commission of which the lawyer's services are being used or to prevent a client from committing a criminal act in the future if it's likely to result in substantial injury or death to another. Also, any information that is obtained in violation of Rule 3.3 has to be revealed. Rule 3.3 of the Rules of Professional Conduct involves candor to a tribunal. That prohibits a lawyer from making false statements and not disclosing cases that are adverse and offering evidence a lawyer knows is false. Rule 3.4 also provides fairness and prevents a lawyer from obstructing another party's access to evidence or altering, destroying, concealing documents, or falsifying evidence, etc. Rule 4.4 involves respecting the rights of third persons and this precludes lawyers from doing acts that have no substantial purpose or using methods of obtaining evidence that violate the legal rights of people. Rule 4.4(b) speaks specifically about receiving inadvertent information electronically. Although there is no requirement to give it back, the lawyer at least has to notify the sender.
Under Rule 8.4(c), a lawyer cannot be involved in fraud or misrepresentation and under Rule 8.4(d), a lawyer cannot be involved in conduct prejudicial to the administration of justice.
Therefore, the bottom line is a lawyer cannot assist a client or utilize information that the client has illegally obtained. If the client has already committed a crime doing so, it's a past crime, but then the lawyer cannot continue that crime by using illegal evidence in the future.
One of the common examples is the divorce client or criminal client who comes in and states he or she has a tape recording of the alleged victim or some key witness where the witness indicates their statements are false or they're making up things about the person. At least in Pennsylvania, that would be illegally obtained unless the person who's being taped was aware and consented to the tape recording, which usually is not the case. It's, therefore, a felony of the third degree at least under Pennsylvania Wiretap Statutes, to even listen to the tape and using it could subject the lawyer to a felony of the third degree conviction. The lawyer cannot reference it. The interesting question is can the lawyer then destroy it or tell the client to get rid of it? The answer is not obvious. It would seem that the lawyer could as long as the client wasn't being charged with the wiretap violation. But, the better practice unless there was a definitive ethics opinion would be to just have the lawyer hold the evidence in a locked file drawer and never reference it again. But, if the material is evidence of the underlying crime that the lawyer discovers, such as a murder weapon, etc. that is handled differently. Evidence of a crime has to be turned over to the commonwealth with the quid pro quo that the commonwealth can't refer or mention where they obtained the evidence.
The bottom line is that illegally obtained evidence can never be utilized and should be discouraged. The lawyer's representation can never be used to assist someone in presenting or using what the lawyer knows is illegal or criminally obtained.
