Philadelphia criminal appeals lawyer Lloyd Long discusses details surrounding the Pennsylvania’s Superior Court’s decision in the Flor case. Flor appealed the PCRA court’s order granting the Commonwealth’s motion for production of the complete records of trial counsel (which was composed of 30,000 pages). Flor disarmed a police officer while in hospital custody; he shot an EMT and three police officers, killing one. After pleading guilty, a jury sentenced him to death.

Flor’s PCRA petition challenged his trial counsel’s investigation and preparation for the penalty phase. He also asserted that an intellectual disability made him ineligible for execution. Trial counsel stated that they did not recall what investigative measures they took, and that they did not have copies of their file.

The Commonwealth sought an order for PCRA counsel to produce the trial file. PCRA counsel objected on attorney-client and work-product grounds; they requested an opportunity to identify and remove privileged materials. The PCRA court ordered total production because 1) the guilty plea waived all claims against self-incrimination and 2) assertions of ineffectiveness in the PCRA petition waived privilege.

The Supreme Court reversed. It first held that the order was immediately appealable under the collateral order doctrine, but only as to the claim that the PCRA court’s order dealt with privileged materials. Flor’s assertions that the PCRA court’s order was not supported by good cause as required under Pa.R.Crim.P. 902(E), and that it abused its discretion in granting the Commonwealth’s request, were not collateral orders under predecent. Flor did not argue that they did.

Attorney-client privilege is the most revered common law privilege, but a party who challenges his attorney’s effectiveness cannot invoke privilege to prevent counsel from responding to the allegations. That does not cause a total waiver of privilege: precedent requires issue-specific analysis of waiver. Here, the PCRA court ordered wholesale disclosure of the file without in camera review of the materials, and without giving PCRA counsel the opportunity to withhold privileged materials. The entire file could certainly contain materials that were protected by the privilege and not waived by assertions of ineffectiveness. This mere possibility was sufficient to reverse the lower court’s order.

Nor did Flor’s guilty plea waive all claims of privilege. A plea waives the right against self-incrimination, but it does not waive the attorney-client or work product privileges.

All justices joined in this opinion; there were two concurrences.

Chief Justice Saylor, joined by Justice Donohue, added that PCRA counsel should create a privilege log of documents withheld under a claim of privilege. This would allow the Commonwealth to glean the general nature of withheld materials and determine whether to challenge assertions of privilege. It would also facilitate subsequent in camera review of those materials by the PCRA court, and aid in potential appellate review.

Justice Dougherty, joined by Justice Baer, wrote that the Court’s mandate should include a requirement that the lower court comply with the Chief Justice’s privilege log proposal. Justice Dougherty would go further and that direct disputes over claims of privilege be subject to in camera review by the PCRA court.

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