(satori13)

Reducing backlog is a priority in all court systems, but a program aimed at efficiency in Franklin County had some attorneys crying foul that efforts to move cases along potentially threatened their clients’ rights.

According to an informal advisory ethics opinion from the Pennsylvania Bar Association’s committee on legal ethics and professional responsibility, an “Early Accountability Program” that gave lenient plea offers to criminal defendants after those charged waived their rights before an adequate discovery was conducted led some attorneys to report they had “been threatened with loss of their employment and [had] been subjected to harassment by the court if they [did] not recommend that a client participate” in the program.

The opinion, issued in July, concluded that advising a client concerning the program would entail violating the Pennsylvania Rules of Professional Conduct.

Although the opinion did not mention Franklin County, the opinion referenced a September 2012 PowerPoint presentation from the Franklin County District Attorney’s Office outlining the program that was attached as an exhibit to the opinion.

According to officials close with the situation, the Franklin County program has been modified to allow discovery to be available for two weeks before attorneys can advise a client about the Early Accountability Program.

Pennsylvania Association of Criminal Defense Lawyers President James A. Swetz said PACDL had received numerous complaints about the program dating back to 2012.

“We recognize throughout the commonwealth that there is an effort to close out cases at the earliest possible date. There’s nothing wrong with that,” Swetz said. “However, the courts and prosecutors must recognize, as they did in Franklin County, that a lawyer has an ethical responsibility, a duty to investigate, and a duty to review discovery before a decision can be made.”

Swetz said that, while similar programs that encourage early acceptance of guilt and the waiver of some rights exist around the state to help deal with backlogs, he said the Franklin County program was the only one he had heard of that involved the potential waiver of rights before a full discovery had been conducted.

Franklin County District Attorney Matthew D. Fogal confirmed that he met with the PBA’s ethics committee members and Franklin County’s chief public defender, Michael Toms. He said the program had not been suspended, but referred to PBA ethics committee chairman David A. Fitzsimons about the changes to the program.

Fitzsimons confirmed that he was advised the program had been changed to make two weeks of discovery available. He further noted that the informal opinion had not yet been published by the committee, and that the committee would not provide identification of the location of the program.

“The committee and its members recognize that everyone involved is looking to provide a system that works fairly and efficiently for all involved, under quite varying circumstances,” Fitzsimons said. “Sometimes constraints arise from analysis under the rules of conduct which results in positive changes to the evolving system. If and when that occurs, everyone wins.”

Fitzsimons said the committee had received three inquiries about the program, and that the advisory opinion specifically addressed the inquiries. According to Fitzsimons, informal opinions from the committee provide advice that is narrowly framed within the specific set of situations reported by an inquiring attorney, and do not offer critiques regarding any program as a whole.

A call to Toms was not returned.

A description of the program included as an exhibit in the PBA’s opinion said early disposition of guilty pleas allowed for sentencing alternatives that would not be available through plea agreements at a later stage. The alternative sentences included accelerated rehabilitative disposition, house arrest and community service, shortened periods of probation supervision, lower fines, and eligibility for work release, early reentry or weekender programs.

The program was only offered to defendants facing relatively minor charges, or without serious prior records, the opinion said.

The opinion raised concerns about attorneys advising clients regarding the program when there was limited or absent discovery, and said agreeing to a plea through the program could violate conduct rules involving making false and prejudicial statements. The opinion also raised concerns about the “coercive” nature of the program.

“Because of the personal pressure being applied to defense counsel, the attorney’s personal interest in retaining employment and the favor of the court conflict with the attorney’s duty of fidelity to the client,” the opinion said.

A letter PACDL sent to Franklin County court officials in February 2013 said that, without the opportunity to fully investigate the case and review discovery, including potentially Brady materials, the program could deprive defendants of the effective assistance of counsel.

According to Swetz, after PACDL received complaints about the program, it was stopped. However, he said, “The program was quietly being reinstated to the concern of our members.”

Following additional action from PACDL and the PBA’s opinion, the program was altered. Swetz said he was pleased that Franklin County officials took action to allow for more discovery.

“I must applaud the district attorney and the bench in Franklin County for recognizing what a criminal lawyer must do before a client may be advised concerning a plea offer,” he said.

One lasting outcome, Swetz said, could be that defendants who participated in the program could have claims about ineffectiveness of counsel.

Max Mitchell can be contacted at 215-557-2354 or mmitchell@alm.com. Follow him on Twitter @MMitchellTLI.