Attorney-Client Privilege Goes Both Ways

From the March 2011 Attorney E-Newsletter of The Disciplinary Board of the Supreme Court of Pennsylvania

Supreme Court Declares Two-Way Street for Attorney-Client Privilege

On February 23, 2011, the Supreme Court of Pennsylvania decided an important issue of the law of attorney-client privilege in the case of Gillard v. AIG Insurance Company. The issue presented was whether the attorney-client privilege established in 42 Pa. C.S.A. §5928 applies to communications from attorney to client which are not derivative (i.e., which do not incorporate confidential communications from the client).

The case involved allegations of bad faith by the insurance company. In the course of discovery, the plaintiff sought production of all documents in the file of the law firm representing the defendant insurance company. In its response to the discovery, the defendant’s counsel redacted documents prepared by the law firm, asserting attorney-client privilege. The lower court ordered the redacted documents produced and the Superior Court affirmed, relying upon the holding in Nationwide Mutual Insurance Company v. Fleming, 924 A. 2d 1259 (Pa. Super. 2007) that the statutory attorney-client privilege applies only to communications from client to attorney.

The opinion of the Court, written by Justice Saylor, examined the arguments and historical precedents in detail, and concluded that the statutory privilege applies to communications from lawyer to client as well. Justice Saylor wrote, “We hold that, in Pennsylvania, the attorney-client privilege operates in two-way fashion to protect confidential client-to-attorney or attorney-to-client communications made for the purpose of obtaining or providing professional legal advice.” Slip opinion at 23.

Justice Eakin wrote a dissenting opinion in which he acknowledged the reasoning of the majority opinion, but expressed the view that the statute does not support that interpretation and that the change in direction expressed by the majority should take place through legislation or a published rule.

Justice McCaffery, who was the author of the Superior Court’s decision in the Nationwide case while sitting on the Superior Court, wrote a dissenting opinion in which he argued that neither the statutory language nor the case law supports the majority’s position that the statutory privilege extends to attorney-to-client communications beyond the derivative. He added that many of the policy concerns underlying the majority’s view are addressed by the work-product privilege. 

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