The Rules of Criminal Procedure do not define the practice of law, therefore police officers should not be acting as attorneys.

I read your article about police officers at preliminary hearings acting as attorneys for the commonwealth. I thought the Rules of Criminal Procedure allowed that?

Samuel C. Stretton.

Obviously, no one is perfect and the writer of these columns is the first to admit that he, at times, makes mistakes. But the question is correct. Pennsylvania Rules of Criminal Procedure, Rule 542(b) states as follows: “When no attorney appears on behalf of the commonwealth at a preliminary hearing, the affiant may be permitted to ask questions of any witness who is testifying.”

Similarly, the Pennsylvania Rules of Criminal Procedure, Rule 454(c) in reference to a summary case, the following is noted: “When no attorney appears on behalf of the commonwealth, the affiant may be permitted to ask questions of any witness who testifies.”

Therefore, the article written about the unauthorized practice of law and police officers stands corrected. But, having said that, it doesn't make a difference.

The Rules of Criminal Procedure don't define what is the practice of law. The practice of law is very clearly defined in case law, statute, and the Rules of Professional Conduct. One has to be an attorney to go into court and to question witnesses. If a suspended lawyer, disbarred lawyer, an administratively suspended lawyer, an inactive status lawyer or any layperson did that on someone else's behalf, they could be guilty of criminal charges and also the subject of contempt proceedings by the Unauthorized Practice of Law Committee or by the Office of Disciplinary Counsel.

Therefore, it appears that the statements in there would not overcome the fact that there are criminal statutes and case law about what constitutes the unauthorized practice of law. If a police officer is going to be allowed to do that, then an attorney's paralegal or a suspended lawyer could do it if the lawyer can't get there on time. Also, a layperson's brother who is a paralegal could do it at the hearing if they can't afford counsel. Clearly, an equal protection argument would appear to preclude the use of police officers.

Therefore, despite these rules, this writer reaffirms his earlier position that police officers at summary hearings or preliminary hearings should not be questioning witnesses and it is directly in violation of the criminal statute as written and as noted in the previous article and the unauthorized practice of law. The fact that the Rules of Criminal Procedure say they can do it does not in any way amend or change what constitutes the unauthorized practice of law. Further, police officers also would have conflicts. Not only are they questioning witnesses, but they are probably one of the key witnesses. Rule 3.7 of the Rules of Professional Conduct does not normally allow a lawyer who is an advocate to also be a key witness for the client's case.

What constitutes the unauthorized practice of law is a very serious matter. The Pennsylvania Supreme Court defines that and the Pennsylvania Supreme Court has taken normally very strong discipline action against lawyers who are engaged in the unauthorized practice of law when they weren't licensed or had their license placed on inactive or suspended. Oftentimes a suspension of a year and a day takes place. There cannot be buried somewhere in the Rules of Criminal Procedure, a clause that totally contradicts the case law in the unauthorized practice of law and totally contradicts the statutory prohibition. Presumably that was slipped in at the request of a District Attorney's Office to save costs. But cost savings isn't the basis for changing what is the practice of law and what is not.

Therefore, this writer takes the same position that there is no basis and no right for police officers to be representing the commonwealth at preliminary hearings or summary hearings because it directly involves and puts them in the position of engaging in the unauthorized practice of law. If this exception for apparently convenience of the district attorney is going to prevail, then it opens the flood gates to many other persons who may or may not have some qualifications but are not lawyers to start practicing law and representing people at hearings. Those two provisions of the Rules of Criminal Procedure ought to be reconsidered and stricken.

Whether Rule 1.6 is an evidentiary rule or a regulatory rule, all lawyers have to comply with it.

How does one classify the duty of confidentiality of lawyers to their clients? Is it an evidentiary rule?

There are three sources of the confidentiality and attorney-client privilege in Pennsylvania to protect the confidentiality of the communications between a lawyer and the client. First is the statutory attorney-client privilege. This can be seen from 42 Pa.CSA 5928 for civil cases and 42 Pa.CSA 5916 for criminal cases. There is also case law that has developed in Pennsylvania for the protection of the attorney-client confidentiality in addition to the statutory requirements. The statute and the case law probably fit into the category of an evidentiary rule in terms of attorney-client privilege.

The Rules of Professional Conduct also have Rule 1.6 that defines the confidential relationship between lawyers and clients. That rule is far broader than the traditional attorney-client privilege since it includes any information relating to the representation of the client. That is far broader than the traditional confidentiality of secrets and conversations. Rule of Professional Conduct 1.6 is a regulatory rule. On the other hand, a lawyer cannot reveal anything relating to the representation unless it fits with an exception or there is a waiver of the confidentiality rule by the client. From a practical standpoint, it becomes an evidentiary rule and ­­­­­­­­­­part of the assertion of the attorney-client privilege either by the client or the lawyer if the issue is raised.

The biggest difference between the two, statutory privilege and Rule 1.6 confidentiality, is that Rule 1.6 is not linked to what the client tells the lawyer or the lawyer tells the client. The difference is the Rule of Confidentiality, Rule 1.6 includes any and all information even if it doesn't come from the client. That could, for instance, include documents that are of public record somewhere. For instance, a criminal defendant in Pennsylvania, may have a conviction in another state for a minor offense that is not known to anyone. But it is a public record. Under traditional attorney-client privilege, if a lawyer was aware of that, that could be revealed. But under the Rule of Confidentiality, Rule 1.6, that cannot be revealed without the client's waiver.

Traditionally, at least in the common law attorney-client privilege, the name of one's client and the fee arrangements were not included in the privilege. There were, of course, some exceptions. Under the old disciplinary rules, around 1979-1980, these rules were amended to include the identity of the client. Of course, all that became moot when the Rules of Professional Conduct were adopted in 1987, which includes the very broad Rule of Confidentiality, Rule 1.6, being anything pertaining to the representation.

But whether Rule 1.6 is an evidentiary rule or a regulatory rule, all the lawyers have to comply with Rule 1.6. The assertion of attorney-client privilege must be made even if the assertion goes beyond the traditional common law fiduciary statutory privilege because of the broadness of Rule 1.6 of the Rules of Professional Conduct.

A careful reading of the Hicks case is required.

Can I ethically challenge the probable cause of a police stop on the basis of smelling marijuana in a motor vehicle based on new case law?

The answer is that lawyers should start to do that based on the new Pennsylvania Supreme Court decision of Commonwealth v. Hicks, 2019 Westlaw 2305953, ____ A.3d ____ (Pa., May 31, 2019). That case held in essence that a police officer can't infer criminal activity to support a stop merely because an individual was seen carrying a firearm in a high crime area. The decision essentially held a police officer can't infer criminal activity from an individual's possession of a concealed weapon in public since such possession may be lawful if the individual is licensed to do so.

This is a fairly significant decision. Since now medical marijuana is legal in Pennsylvania, the same rationale at least could be presented to the court to overrule any probable cause or reasonable suspicion basis for such a stop.

In the Hicks case, in Footnote 4, it does mention that the odor of marijuana alone is a basis for reasonable suspicion. That footnote should be read carefully.

Certainly, filing such a motion is something that at least every lawyer ought to consider depending on the facts of the particular case. But a careful reading of the Hicks case is required.

There would be no ethical prohibition about such a filing. Rule 1.1 of the Rules of Professional Conduct titled competence would protect any lawyer making an argument that has support in existing case law.

Chester County lawyer Samuel C. Stretton has practiced in the area of legal and judicial ethics for more than 35 years. He welcomes questions and comments from readers. If you have a question, call Stretton directly at 610-696-4243 or write to him at 301 S. High St. P.O. Box 3231, West Chester, Pennsylvania, 19381.