When Attorneys for the Commonwealth Disagree
This article was originally published by The Legal Intelligencer on July 15, 2026.
How many government lawyers should be permitted to represent the Commonwealth in a single case, and what happens when they disagree? This question is playing out in two high-profile cases in the Pennsylvania Supreme Court involving the Pennsylvania Office of Attorney General (OAG)—cases which illustrate the power of the OAG to intervene in litigation involving the Governor’s Office of General Counsel (OGC) and the Philadelphia District Attorney’s Office.
By way of background, the Pennsylvania Constitution declares the Attorney General to be the “chief law officer of the Commonwealth and shall exercise such powers and perform such duties as may be imposed by law.” Pa.Const. art. IV § 4.1. This provision was approved by voters and adopted on May 17, 1978, making the Attorney General an elected position. This was followed shortly thereafter by the Office of Elected Attorney General Final Report, published by the Joint State Government Commission on September 1, 1978. This report set the stage for the debate that would follow in the Pennsylvania General Assembly, which produced the Commonwealth Attorneys Act (CAA), 71 P.S. § 732-101 et. seq., in 1980. The CAA was intended to bring a measure of clarity to the role of the OAG and its relationship with OGC, counsel for independent state agencies and district attorneys to minimize (or expeditiously resolve) disagreements between Commonwealth attorneys. Unfortunately, the CAA has fallen short of that goal, a result anticipated by at least one legislator on the floor of the Pennsylvania House in 1980.
In criminal cases, the CAA has done a decent job in minimizing conflicts between the Attorney General, who as mentioned above is the “chief law enforcement officer of the Commonwealth,” and the county district attorney, who is defined as the “chief law enforcement officer for the county in which he is elected.” 71 P.S. § 732-206(a). In striking that balance, the CAA spells out the limited jurisdiction of the OAG to investigate and prosecute certain kinds of criminal cases (specifically public corruption, organized crime, cases from a statewide investigating grand jury, referrals from Commonwealth agencies, Medicaid fraud and drug law enforcement to name a few) reserving plenary prosecutorial authority for the district attorney. 71 P.S. §§ 732-205, 732-206. The CAA also paves the way for district attorneys to refer criminal investigations and/or prosecutions to the OAG based upon a conflict of interest or lack of resources. Until recently, this balance has stood the test of time and worked reasonably well, perhaps due to limitations contained in the CAA that permit the OAG to supersede the district attorney’s authority in criminal prosecutions only upon proof that “the district attorney has failed or refused to prosecute and such failure or refusal constitutes an abuse of discretion.” 71 P.S. §§ 732-205(a)(4)(5).
In civil litigation, the CAA has been far less effective in limiting who can speak for the Commonwealth. Under the CAA, the plenary power to represent the Commonwealth in civil litigation is supposed to reside with the Attorney General, subject to the Attorney General’s right to refer the case back to the General Counsel “upon determining that it is more efficient or otherwise is in the best interest of the Commonwealth” to do so. 71 P.S. §§ 732-204(c). However, the CAA also contains confusing powers of intervention, authorizing OGC and counsel for independent agencies to intervene as a matter of right in civil litigation being handled by the Attorney General without any showing of negligence or misconduct. 71 P.S. §§ 732-303(b), 732-403(b). The CAA also allows the OAG to “intervene in any other action, including those involving charitable bequests and trusts or the constitutionality of any statute.” 71 P.S. §§ 732-204(c).
Currently, the Attorney General’s power to “intervene in any other action” is front and center in two high-profile cases involving the Pennsylvania Supreme Court.
The first case is Commonwealth v. Brown, No. 32 EM 2023, 2026 WL 1737056 (Pa. 2026). In Brown, the Philadelphia District Attorney’s Office confessed error and conceded relief to a defendant convicted of murder who had filed an untimely petition under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. § 9541 et. seq., which is technically (although not practically) civil in nature. The trial court granted Brown the relief he requested, and the families of his victims responded by filing a King’s Bench petition, requesting the Pennsylvania Supreme Court to assume immediate jurisdiction over the case. On June 16, 2026, the Pennsylvania Supreme Court reversed the trial court, taking Philadelphia District Attorney Larry Krasner to task not only for what it believed was an improper concession in Brown’s case, but also for his 120 concessions of relief in other cases, 110 of which were murder cases. In so doing, the Court took the unusual step of soliciting the input of the OAG and then accepting the OAG’s offer of assistance by requiring notice to the OAG whenever the Philadelphia District Attorney concedes PCRA relief so that the OAG may decide whether to intervene pursuant to 71 P.S. § 732-204(c). However, the Court did not include any guidance to the lower courts on how they are to determine the position of the Commonwealth when the OAG and Philadelphia District Attorney disagree—which is likely.
The second case is Allegheny Reproductive Health Center v. Pennsylvania Department of Human Services, No. 26 M.D. 2019, 2026 WL 1053998 (decided April 20, 2026) (appealed May 19, 2026). In this case, providers of abortion services in Western Pennsylvania sued the Pennsylvania Department of Human Services, (DHS) challenging the Abortion Control Act’s statutory exclusion of abortion coverage from the Commonwealth’s medical assistance program as violative of the Pennsylvania Constitution’s Equal Rights Amendment. Pa.Const. art. I § 28. Initially, DHS, represented by OGC, opposed relief, and successfully asserted various procedural defenses which were accepted by the Commonwealth Court. The Pennsylvania Supreme Court subsequently reversed and remanded the case back to the Commonwealth Court. Following remand, the providers filed an application for summary relief, and OGC changed course, this time conceding its position. With no one left to oppose the provider’s application, the OAG intervened under 71 P.S. §§ 732-204(c), citing its mandatory duty under the CAA to “uphold and defend the constitutionality of all statutes so as to prevent their suspension or abrogation in the absence of a controlling decision by a court of competent jurisdiction.” 71 P.S. § 732-204(a)(3). The Commonwealth Court granted the application anyway, and the OAG appealed. Although OGC did not oppose the OAG’s intervention petition, it is unclear whether it will offer a position contrary to the OAG, thereby muddling the position of the Commonwealth.
Could some of this confusion have been avoided? At least one legislator thought so. Representative James Manderino, a Democrat from Westmoreland County who went on to be elected Speaker of the Pennsylvania House of Representatives, railed against the then-proposed language of section 303 (allowing the General Counsel to intervene in matters entrusted to the Attorney General) during a speech on the House floor on October 1, 1980:
Can you imagine, in our suit regarding Federal funds that we prosecuted as a legislature several years ago, having the attorney general in there saying, we think the legislature is right, and the [general counsel] in there saying, no, we think the Governor is right, because there was a dispute? On the abortion issue, can you see us in Federal court, where we have been on the abortion issue in Pennsylvania so many times, with the Governor saying, no, I think we should not fund abortions, and with the [general counsel] bringing forth that opinion, and the attorney general, who is elected by the people, saying, no, I have an opposite point of view. Can you imagine that case in court? We are going to be the laughingstock of the nation with this kind of an attorney general bill.”
Legislative Journal – House, 164th Sess., October 1, 1980, at 2435. Is anyone laughing yet?
Reprinted with permission from the July 15, 2026 edition of “The Legal Intelligencer” © 2026 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. For information, contact 877-257-3382, reprints@alm.com or visit www.almreprints.com.
