privilege

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.

Friends May Be Foes

From the November 2010 Attorney E-Newsletter of The Disciplinary Board of the Supreme Court of Pennsylvania

Can a lawyer ethically get access to an opposing party’s Facebook page? We previously reported on a Philadelphia Bar Association opinion concluding that a lawyer may not, personally or through an agent, seek to “friend” an opposing party or witness without revealing.

But is there another way? A Pennsylvania Court of Common Pleas has held that a party may be compelled through the discovery process to provide an opponent with access to his Facebook and MySpace accounts. In a decision in the case of McMillen v. Hummingbird Speedway, Inc., handed down September 9, 2010, President Judge John Henry Foradora of the Court of Common Pleas of Jefferson County held that access to one’s social networking sites is not protected by any privilege, and that the plaintiff in a personal injury action could be compelled to reveal the usernames and passwords of his Facebook and MySpace accounts to counsel for the defendants (but not to the defendants themselves). The court looked closely at the privacy and disclosure policies of the sites in question, and concluded that users are on notice that information posted on them may be revealed to persons who have access to such information by process of law.

A New York trial court decision reached the same result by a very similar analysis.

It becomes increasingly obvious that lawyers should be counseling their clients on the use of Internet social media. More than ever, there are few secrets on the Internet.

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