Attorneys Challenge Attorney General Office’s Authority To Prosecute Their Cases

Filed under: Criminal Law, News by Contributor @ December 29, 2015

AG OfficePennsylvania Attorney General Kathleen Kane’s office was confronted today with a new legal issue which may have far-reaching implications for law enforcement official statewide. Attorneys for three criminal defendants charged with child pornography argued that as a result of the suspension of Kane’s license to practice law this fall, her current policy of delegating legal tasks to others violates the rules of professional conduct.

Attorney Chuck Pascal has joined forces with attorney Gregory Swank in challenging the Attorney General’s current power and ability to delegate her office’s authority to other attorneys.  Mr. Pascal argued to Armstrong County President Judge Kenneth Valasek that under the rules of professional conduct, “if one is not a practicing attorney, one cannot deputize others to do legal work.” Mr. Pascal and Mr. Swank argued that Ms. Kane’s recent suspension taints any legal decision she makes, including the deputizing of others to make legal decisions.

Mr. Swank further pointed out that under the Commonwealth Attorneys Act, a deputy attorney general may only act for the Attorney General when the office has an actual vacancy and at the present time there is no vacancy in the Attorney General position because Ms. Kane still occupies the office.

Jessel Costa argued for the Attorney General’s office that under Mr. Pascal and Mr. Swank’s line of reasoning, every case from the day that Ms. Kane took office until today would result in dismissal. Costa noted that when the state Supreme Court instituted the suspension of Ms. Kane that it stated specifically that the suspension should not be considered as a removal of Ms. Kane from her office. Costa further cited the state law requirement that the Attorney General be a member of the Bar Association, not that they hold an active law license.

Mr. Swank said after the hearing that if Costa’s argument prevails, the highest law-enforcement office in the Commonwealth of Pennsylvania would be the only place where you can practice as an unlicensed attorney. Similar challenges have been raised in other counties and were not successful. Today’s challenge appears to be the first time the issue of delegation has been argued as a motion to dismiss in a courtroom. Judge Valasek said that he would issue his ruling “in a few days.” One thing seems clear however. No matter the ruling an appeal seems likely.

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