Hangley Aronchick attorneys John S. Summers and Cary L. Rice recently filed an amicus brief in the Superior Court of the Commonwealth of Pennsylvania on behalf of a group of 24 Pennsylvania law professors, directors of legal services organizations, and pro bono directors and partners at private law firms, in Commonwealth of Pennsylvania v. Rusty Lee Brensinger (212 EDA 2017). Upon rehearing en banc, the amici argue that the Superior Court’s March 5, 2018 majority opinion improperly conflates a prospective client with an actual client, contrary to settled Pennsylvania law on when an attorney-client relationship is formed.

Rusty Lee Brensinger, convicted of murdering his girlfriend’s child 20 years ago, appealed the Lehigh County Court of Common Pleas’ denial of his Post Conviction Relief Act (“PCRA”) petition as untimely. He sought post-conviction relief in 2015, arguing that the Commonwealth’s “Shaken Baby Syndrome” expert testimony used to support his murder conviction was junk science and that the child’s death was instead the result of a tragic accident.

In March 2018, over a vigorous dissent, the Superior Court affirmed the trial court’s dismissal of Mr. Brensinger’s PCRA petition as untimely. The majority opinion held that because Mr. Brensinger had consulted and was previously “involved” with lawyers, he was formally represented by counsel since 2009, and thus should be presumed to have had access to publicly-available scientific articles challenging “Shaken Baby Syndrome” as junk science since that time.  The Superior Court has granted rehearing en banc of its March 2018 decision and the Hangley Aronchick amicus brief is in support of Mr. Brensinger’s opening brief before the en banc court.

Amici argue that the majority panel opinion not only is contrary to Pennsylvania law but also, if allowed to stand, would blur the lines between a prospective and an actual client, potentially (1) expanding the ambit of legal malpractice claims and confusing the broader question of what duties lawyers owe to people they have not agreed to represent; (2) providing a disincentive for attorneys to carefully vet cases before accepting them; and (3) discouraging pro bono representation and disadvantaging prospective pro bono clients.

The Hangley Aronchick team also included paralegal Maria J. Hunter.

Read the brief