Second Time is a Charm: On Further Review of Issue
Supreme Court Finds Attorney-Client Communications Operates as a
Street to Protect Communications Between Attorneys and Clients
By: Daniel S. Strick
Prior to the Supreme Court’s recent decision in
Insurance Co., 2011 Pa. LEXIS 393
courts had been inconsistent in expressing the scope of the attorney-client
privilege. The courts wrestled
with the competing interests of the encouragement of trust and candid
communication between lawyers and their clients and the accessibility of
material evidence to further the truth-determining process.
The Pennsylvania Supreme Court has now determined the privilege is
applicable as a two-way street bringing the law in accord with the law in just
about every other jurisdiction.
Last January, the Pennsylvania Supreme Court Justices could not agree on
the scope of the attorney-client privilege in the matter of
Nationwide Mutual Insurance Company v.
Fleming, 2010 Pa. LEXIS 40 (Jan. 29, 2010).
Due to retirements and recusals, only four justices heard the case.
A two-two split resulted with the Superior Court’s decision affirmed,
even though none of the Justices agreed with the rationale provided by the
Superior Court. Thus, leaving the
scope of the
attorney-client privilege in a state of flux.
Gillard involved allegations
of bad faith by the insurance company in the handling of Gillard’s uninsured
motorist claim. During discovery,
Gillard sought production of all documents from the file of the law firm
in the underlying litigation.
withheld and redacted documents created by counsel, asserting the
attorney-client privilege. In
response, Gillard sought to compel production asserting the position the
attorney-client privilege in Pennsylvania
is very limited and only protects confidential communications initiated by the
client. Gillard asserted certain
lawyer-initiated communications might contain information originating with the
client which would then be privileged.
had not sought such limited protection and instead asserted the privilege
broadly as if it were a “two-way street” and not as a “one-way street” as set
forth in 42 Pa.C.S. §5928.
asserted the privilege’s purpose is to foster the free and open exchange of
relevant information between lawyer and client.
To encourage such candid disclosure, AIG
argued both client and attorney initiated communications must be protected.
The trial court performed an in
camera review and adopted the “one-way street” perspective.
AIG filed an interlocutory appeal and
the Superior Court exercised jurisdiction and affirmed relying on
Specifically, the Superior Court found the privilege as being
“strictly limited” and attorney to client communications were only protected to
the extent they reveal confidential communications previously made by the client
to counsel for the purposes of obtaining legal advice.