If the courts will not give the defense equal access to evidence, then the only remedy may be to prohibit its use.

I have difficulty when I get disks, thumb drives or even emails from the District Attorney's Office that contain video statements. Some can be opened easily, but many cannot. What can I do about it?

Samuel C. Stretton.

Many lawyers, at least in Philadelphia County, have expressed concerns about electronic discovery from the district attorney and the inability at times to access it or print it out fully.  This is more pronounced for the older lawyer because their skills with technology aren't as good as those who were weaned on it from the day they were born.

All lawyers do have a duty to maintain—as best they can—knowledge in modern technology. The Rules of Professional Conduct require that. Rule 1.1 requires a lawyer to maintain competence in the law. Comment 8 to that rule states as follows: "To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and his practice, including the benefits and risks associated with relevant technology, engaging and continue to study in education, and comply with all the continuing legal education requirements to which the lawyer is subject."

Having said that, it shouldn't be so complicated and difficult to be able to access discovery. In this modern world, technology is largely much more accessible and it doesn't make any sense that it becomes too complicated to be able to open up and print out or listen to modern technology. In Philadelphia County, the police interviews of witnesses or defendants often can't be heard even with the volume being put at the highest level. Whether that's because the video rooms at the police department have defective equipment or it's done intentionally, who knows, but it has happened too many times.

Part of the problem is that many of the district attorney offices have the monies to have a full-time technology department in-house. Also, district attorneys have concerns about easy accessibility of material and discovery. There are concerns about keeping discovery from persons not connected to the case.

There was an interesting article in the New York Times Sunday Edition on Nov. 24. The article is titled, "The Exoneration Machine," and was subtitled, "Public defenders lack access to gadgets and software that could keep their clients out of jail." Obviously, public defender's offices often have more resources than the private defense bar. Many private criminal attorneys and conflict counsel, particularly those who are primarily defending street crimes as opposed to the far more lucrative white-collar crimes live on an extremely tight budget. In fact, in Philadelphia County, where the DA's office appears to have given up on prosecuting many crimes, many law offices are closing down or are in terrible financial straits.

The article notes that in America, citizens accused of a crime are supposed to have an advantage since the burden of proof is on the prosecutors and the government has to turn over all evidence to the defendants. The article points out that concept in theory sounds great, but most defendants don't have the monies and the government has other advantages, such as detectives and government funding. But the article then notes as follows: "Today, one way in which the deck is stacked against defendants involves technology."

The article notes that the law enforcement agencies can use warrants and court orders to compel companies to turn over emails but the defendant has no such power. Obviously, defendants can't issue subpoenas unless and until there is a trial date. The article then says as follows: "The government has access to forensic technology that makes digital investigation easier. Over the last two decades, the machines and software designed to extract data from computers and smartphones are primarily made for and sold to law enforcement."

The article notes that public defender offices in New York realized that they had to have the funds to "buy the same tools the police had: forensic devices and software from companies including Cellebrite, Magnet Forensics and Guidance Software."

The article pointed out how in New York, the Legal Aid Society has a budget that can afford some of these while most other public defender offices and certainly the private bar, particularly the private conflict bar, do not. The article pointed out the bill was over $100,000. The article noted the Manhattan District Attorney's Office had a forensic lab built in 2016 for a substantial sum of money.

The article said that, as a result, the prosecutor has a much greater advantage since most defense law offices cannot afford the technology required.

This technology is rarely accessible to defense lawyers. In fact, the article notes as follows: "When I sent an inquiry to Cellebrite about how its products get used by the defense instead of by law enforcement, its spokesman assumed I was talking about the military."

Obviously, that frustrates defenders' organizations or private defense lawyers who are not in a position to buy the material.

The article also noted that some companies won't sell to defense lawyers. The article quotes a company named Grayshift. The article then pointed out as follows: "Developing new technical expertise necessary to adequately defend their clients is a challenge. Not only do public defenders tend to be underfunded, law enforcement can mobilize the experts in the field and prohibit them from working for the defense."

The article did note that Philadelphia's public defender started building a dedicated forensic lab. It also noted most public defenders' offices have to hire forensic examinations of the evidence in their cases, which is expensive.

As a result, it's difficult according to the article for court-appointed lawyers and most defenders' offices to adequately investigate. For instance, one might want to examine the phone of a third party. It would be almost impossible for a defense lawyer to gain access.

The article also indicated that as a result of technology many cases plead, but if they do go to trial, then at some point, of course, forensic reports have to be turned over to the defense. But the article indicates, "these reports can be thousands of pages long, easily navigable only if you have a forensic company's proprietary software."

One of the concerns, of course, is that even if lawyers get access to some of this material, they are not in a position to challenge the accuracy of these programs. Like everything else, when something has been around for a while, people start to accept the accuracy. Only in recent years has there been questions about at least other areas of forensics in criminal law that turn out to be junk science. For instance, bite marks or hair analysis or things of that nature turned out to be junk science, but in the past were accepted.

So, there is a problem that is at least recognized in the New York Times article that is going to have to be addressed at some point. The problem is with some very simple matters. When a lawyer gets a disk or thumb drive from the prosecution and they can't open it. They cannot access it. One needs almost someone who has an advanced degree or advanced experience in forensic computer technology to do so and many average criminal defense lawyers don't have those kinds of skills, particularly those who are older.

If one is court-appointed, for instance, in Philadelphia County, the amount of money they pay for experts is abysmal. Whereas, those who practice court-appointed law in Philadelphia County, know that they go through experts and experts aren't going to work anymore for the minute fees paid. Also, at least in Philadelphia County, the fees for a court-appointed counsel is so miniscule that counsel does not have the time to spend on this technology.

This is really a major ethical issue in the making. It just hasn't been seen yet. Perhaps the civil bar experiences it when law firms who are rather wealthy can engage in this kind of analysis and some of the others can't.

Perhaps technology, at least in the area of trials and particularly criminal trials, has gotten too advanced. Everyone interested in the "truth" views modern technology as a classic example of getting to the "truth." The problem is that people have to step back and question whether the truth for these technology advances is really the truth. But, more importantly, they have to step back because it's extremely unfair if an average criminal defendant can't have the same advantages as a prosecutor's office. But, to get that advantage, it's going to be far more expensive than any court-appointed system or most public defender's offices are willing to pay, particularly in Pennsylvania where the funding for criminal defense comes county-by-county with the local county commissioners and is does not get statewide funding as almost every other state in the union. Pennsylvania's funding of indigent defense is barbaric and truly something that's almost 100 years behind the times. But voters don't care about criminal defense and no one is going to put that in the budget or even think about it unless their son or daughter are arrested. The world of criminal defense is at a turning point. That is why so many cases never go to trial anymore. But it's a very uneven playing field, a playing field that leaves a lot of unanswered questions and a playing field that makes it almost impossible for a court-appointed counsel or indigent defense counsel to be able to participate at an equal level. Even a privately hired criminal defense counsel normally only receives modest fees to try these cases. Fees of six figures or millions of dollars may happen with high-profile politicians or corporate people, but not based on street crime or lower level white-collar misconduct.

Perhaps if technology is only available to one side and not available to the defense, then the other side shouldn't be allowed to use it.

If the New York Times article is even halfway correct, then there is a real problem in the world of criminal defense. If something is too expensive, then it should not be allowed to be used unless it's easily accessible and available to all who participate in the system. But that is going to be an impossibility at least in the foreseeable future, particularly in Pennsylvania with the outdated funding process.

Ethics and fairness have to be part of the criminal justice system or it fails. That's why the Gideon decision in 1964 was so important because it required people to have counsel whether they could afford it or not. Before that, many people did not have a lawyer. Now in the 21^st century, technology is the new Gideon. It doesn't make as much difference now if you have a very competent lawyer in old-fashioned criminal trials. But, apparently, it makes a huge difference if you have the access to modern technology. The Gideon legacy would be totally undermined if only the prosecution or U.S. Attorney's Office have that kind of advantage. This is an issue that future lawyers and bar associations have to grapple with and it is a major problem. But the gap between the prosecution and defense in terms of technology is significant. If the courts will not give the defense equal access, then the only remedy may be to prohibit its use.

Avoid crowdfunding or third-party funding, particularly if it's done through the internet.

I have been asked to represent a client in what I consider a very serious matter where I believe the client is innocent. Can I—and the client—go on the computer and seek fees for the defense of this client since this case will be quite expensive?

The question is an interesting one and kind of a sad one. The old days of a lawyer representing a client and the client paying the fees or the client's family paying the fees seems to be rapidly disappearing, particularly since no one seems to have any money anymore. But it gets into dangerous terrain when someone is seeking, whether through computers or direct mail or whatever, to fund the litigation or defense. Rule 1.8 of the Rules of Professional Conduct do allow for a third party to pay legal fees. Rule 1.8(f) states that a lawyer can accept compensation from others, but only if the client gives informed consent, that there is no inference with the lawyer's independence or professional judgment or with the attorney-client relationship, and the information relating to the representation is protected as required by Rule 1.6, which is the confidentiality rule.

Therefore, Rule 1.8(f) does seem to suggest that third parties can pay legal fees. This rule when written was more pointing to a situation where, for instance, an employer or insurance company is paying the legal fees or Mr. Big is paying the legal fees for Mr. Little.

Comment 11 to Rule 1.8(f) notes that sometimes third parties have a conflicting interest with the client. Some of them, for instance, such as an insurance company might have an interest in minimizing the amount of money spent on a defense. The comment notes a lawyer had to satisfy himself when taking on the case his representation would not be interfered with by that third party. There can be no interference with a lawyer's independent professional judgment.  Comment 12 to Rule 1.8(f) notes that if the lawyer's independent judgment is potentially affected, then there can perhaps be no informed consent. That can happen, for instance, with a law firm that gets all insurance defense work either privately or as a captive law firm. If the insurance company tells the lawyer they can't do this or they can't do that and the lawyer thinks he should, that creates a real conflict. The lawyer's interest could be affected. Obviously, the lawyer wants to keep the insurance company business. Rule 1.7(a) is impacted where a lawyer's interest would be materially limited by this arrangement and the lawyer would be unable to give full representation to the client.

Unfortunately, the Rules of Professional Conduct have not caught up this modern age of technology "crowd funded legal fees" are starting to be used more and more.

If the client is going to use the internet or other means to get people to fund their case, several issues have to be considered. First, obviously, is whether there is a conflict. With other people paying, that has to be dealt with. A conflict could be the insurance company or the Mr. Big example. If one was getting monies, it depends again on who is paying and their relationship to the lawyer. Second, the lawyer who is doing this has to comply with the requirements of Rule 1.8(f). There can be no interference with independent judgment and the confidentiality must be maintained and the client must give informed consent. It's hard on people paying monies not to be able to hear specifics or be able to tell the lawyer do this or do that.

What happens if Mr. Big or the insurance company suddenly decides they are not paying anymore or if the crowd funding the arrangement stop paying? At least some people believe that that can't happen unless those who are paying go in and get permission from the court if the matter is in litigation or criminal defense trial is approaching.

There was a discussion about this at a very excellent white-collar practice seminar by the Pennsylvania Association of Criminal Defense Lawyers held in November. One of the examples talked about was, of course, President Donald Trump's former civil lawyer, Michael Cohen. The presentation, which was excellent, noted that Cohen said he would take a bullet for Trump. Then the article noted Cohen then turned on Trump. Cohen then sued Trump for his legal fees, which according to the newspaper article, totaled about $1.9 million.

Not to take a position on that legal quagmire, it highlights the problems with third parties or in the modern world of technology crowdfunded payments. Further, if these payments come in, the question is should the lawyer control the payments? In other words, who is holding the funds? If a number of people are paying in and a nonlawyer not connected with the lawyer's firm is holding these payments, that would be wrong. The payment should go to the lawyer and he should put them in his IOLTA account or perhaps in an interest-bearing escrow account if the monies are going to be held there for a long period of time until they are earned. There could be many problems for the lawyer if some third party is holding these fees that are coming in through the internet and there is not the proper accounting. The fees have to be kept separate and not misused.

Rule 1.8(f) really has to be updated because, as noted, it was written for the days of insurance defense or Mr. Big funding all the cases. It never really contemplated the issues of multiple sources of funding in this modern world of technology.

But the lawyer has to be very careful if they are participating in this because misuse of funds and not properly accounting for funds can result in very serious discipline.

In conclusion, the best thing one could do is to avoid crowdfunding or third-party funding, particularly if it's done through the internet. But if the lawyer is willing to participate and take advantage of it, then the lawyer has duties and obligations set forth in Rule 1.15 and also under the fee rule, Rule 1.5. Finally, if there is going to be a third-party funding, there ought to be a fee agreement with whoever is funding it, whether it's one person, Mr. Big, or the insurance company or 10, 20, or thousands of people who are doing it through some sort of crowdfunding situation. There ought to be a fee agreement. There also has to be a separate fee agreement with the client telling him what to expect or not.

Nostalgically, this writer would like to say this kind of third-party funding should be abolished unless they are family members or very close friends. But that could deny people opportunities to defend themselves in this modern world. But, in evaluating this modern world, one has to remember there is a model for attorney-client relationships and that model is a good one and the modern world has to learn to comply with the old-fashioned requirements of the attorney-client relationship.

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.