The following is an excerpt from chapter 5 of The Attorney-Client Privilege and Work-Product Doctrine in Pennsylvania, 4th edition, PBI 8528 2014 PBI
5 Communications 5-1. Pennsylvania s Version of the Privilege Is a Two-Way Street In 2011, in a departure from precedent, the Pennsylvania Supreme Court sweepingly declared that Pennsylvania s attorney-client privilege operates in a 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. Gillard v. AIG Ins. Co., 15 A.3d 44, 59 (Pa. 2011); accord, Custom Designs & Mfg. Co. v. Sherwin-Williams Co., 39 A.3d 372 (Pa.Super. 2012). Gillard is a landmark decision. See Levy v. Senate of Pennsylvania, 34 A.3d 243, 246 (Pa.Cmwlth. 2011) (Levy I), aff d in part and rev d in part on different grounds, 65 A.3d 361 (Pa. 2013) (Levy II). In Gillard, the court, to a large degree, rejected the literal language of the Pennsylvania statutes that codified the privilege, and eliminated the confusion engendered by Nationwide Mutual Insurance Co. v. Fleming, 924 A.2d 1259 (Pa.Super. 2007), aff d by an equally divided court, 992 A.2d 65 (Pa. 2010). Most notably, in Gillard, the court did more than restore to its pre-fleming 29
Chapter 5 strength the derivative privilege protection afforded to communications flowing from attorney to client. The Gillard court appears to have done away completely with the longstanding rule that the privilege protects directly client-tocounsel communications and only derivatively protects counsel-to-client communications. Instead, the Gillard court appears to have adopted the position of Restatement (Third) of the Law Governing Lawyers that abandons the direct/ derivative distinction and instead extends the direct protection of the privilege to both client-to-counsel and counsel-toclient communications. Gillard, 15 A.3d at 52, 59; see also Gillard, 15 A.3d at 59 60 (dissent) (objecting to majority s decision because it would make privileged all communications from counsel to the client, regardless of content, even when no information from the client is revealed ); Restatement (Third) Law Governing Lawyers 68 72 (American Law Inst. 2000). In order to understand fully the implications of Gillard, an examination of the narrower scope of the privilege pre- Gillard is necessary. 5-2. Pre-Gillard Communications from Client to Counsel One-Way Street Before Gillard, Pennsylvania s attorney-client privilege, strictly speaking, protected only communications flowing from client to counsel. See 42 Pa.C.S. 5916, 5928; accord, Harrisburg Auth. v. CIT Capital USA, Inc., 716 F.Supp.2d 380, 388 (M.D. Pa. 2010) (Pennsylvania s privilege [extends] only to communications from the client to the attorney ); Smith v. Life Investors Ins. Co., No. 2:07-cv-681 (W.D. Pa. October 16, 2009); LaRocca v. State Farm Mutual Auto. Ins. Co., 47 F.R.D. 278, 281 (W.D. Pa. 1969); Nationwide Mutual Ins. Co. v. Fleming, 924 A.2d 1259, 1264 (Pa.Super. 2007), aff d by an equally divided court, 992 A.2d 65 (Pa. 2010); Commonwealth v. Chmiel, 889 A.2d 501, 531 (Pa. 2005); Commonwealth v. Hetzel, 822 A.2d 747, 757 (Pa.Super. 2003); Graziani v. OneBeacon Ins., Inc., 2 Pa.D.&C.5th 242, 246 (C.P. Centre 2007) ( This privilege is 30
Communications clearly limited to confidential communications from the client to the attorney and not from the attorney to the client and that has been decided by the courts ); MacQuown v. Dean Witter Reynolds, Inc., 47 Pa.D.&C.3d 21, 24 25 (C.P. Allegheny 1987); International Mining Co. v. Kittanning Coal Co., 132 P.L.J. 140, 142 (1983); see also In re Investigating Grand Jury, 887 A.2d 257, 258 (Pa.Super. 2005). The statutes codifying the privilege expressly state that the privilege applies to confidential communications made to [a lawyer] by his client. See 42 Pa.C.S. 5916, 5928. The statutes, by their terms, do not extend the privilege to communications flowing in the opposite direction, from counsel to client. Id. The Restatement (Third) of the Law Governing Lawyers takes a different approach. The Restatement protects confidential communications made between privileged persons, with privileged persons defined to include both client and attorney. Id. at 68, 70. Thus, in contrast to Pennsylvania law s pre-gillard approach, the Restatement extends the privilege directly to communications flowing from lawyer to client as well as to those flowing from client to lawyer. See also Teleglobe Communications Corp. v. BCE, Inc., 493 F.3d 345, 359 60 (3d Cir. 2007). 5-3. Pre-Gillard Only Derivative Protection for Counsel-to-Client Communications Before Gillard, communications from counsel to client were eligible for protection only derivatively under Pennsylvania law. A communication from counsel to client was protected if disclosure of that communication would have revealed a confidential communication from client to counsel. MacQuown, 47 Pa.D.&C.3d at 25 26; accord, In re Flonase Antitrust Litig., 723 F.Supp.2d 761, 764 (E.D. Pa. 2010); Harrisburg Auth., 716 F.Supp.2d at 388; Southeastern Pennsylvania Transp. Auth. v. CaremarkPCS Health, L.P., 254 F.R.D. 253, 257 (E.D. Pa. 2008); Constand v. Cosby, 232 F.R.D. 494, 500 (E.D. Pa. 2006); Coregis Ins. Co. v. Law Offices of Carole F. Kafrissen, P.C., 186 F.Supp.2d 567, 570 (E.D. Pa. 2002); 31
Chapter 5 Garvey v. National Grange Mutual Ins. Co., 167 F.R.D. 391, 395 (E.D. Pa. 1996); Eastern Techs., Inc. v. Chem-Solv, Inc., 128 F.R.D. 74, 77 (E.D. Pa. 1989); In re Tire Workers Asbestos Litig., 125 F.R.D. 617, 621 (E.D. Pa. 1989); Cedrone v. Unity Sav s Ass n, 103 F.R.D. 423, 429 (E.D. Pa. 1984); In re Westinghouse Electric Corp. Uranium Contracts Litig., 76 F.R.D. 47, 56 (W.D. Pa. 1977); In re Condemnation of 16.2626 Acre Area, 981 A.2d 391, 396 (Pa.Cmwlth. 2009); Fleming, 924 A.2d at 1264; Graziani v. OneBeacon Ins., Inc., 2 Pa.D.&C.5th 242, 246 (C.P. Centre 2007) ( A communication from counsel to client may be privileged if it reiterates or sets forth the gist of a prior communication from the client to the attorney ); McAndrew v. Donegal Mutual Ins. Co., 56 Pa.D.&C.4th 1, 9 (C.P. Lackawanna 2002); International Mining, 132 P.L.J. at 142; Messner v. Korbonits, 39 Pa.D.&C.3d 182, 185 86 (C.P. Chester 1982); see also Citizens for Responsibility & Ethics v. Office of Administration, 249 F.R.D. 1 (D.D.C. 2008); In re Vioxx Products Liability Litig., 501 F.Supp.2d 789, 795 (E.D. La. 2007); but see National Bank of West Grove v. Earle, 46 A. 268 (Pa. 1900) (holding that the privilege applies to all attorney-to-client communications). For example, consider a letter from Lawyer to Client that recites certain information that Client provided to Lawyer, and states Lawyer s opinion that the statute of limitations on a particular claim has expired because Client became aware of his claim more than two years earlier. That letter is not a confidential communication made to [a lawyer] by his client, and thus did not qualify, pre-gillard, for direct protection of the attorney-client privilege. Nevertheless, the letter, pre-gillard, would have been protected derivatively by the privilege because disclosure of the letter would have revealed confidential communications made to the lawyer by the client. In this example, disclosure of the letter would reveal that the client had sought advice from the lawyer about pursuing a claim, and it would reveal prior confidential communications flowing from Client to Lawyer. 32
Communications Conversely, though, assume that a lawyer who generally represents a corporate client and has done so for years, has been monitoring, on his or her own without any request from the client, regulatory changes that could affect the client s business. The lawyer prepares a detailed memorandum summarizing the changes and provides that to the corporation s president. The memorandum, pre-gillard, would not have been eligible for direct protection because it was not a communication from client to counsel. The memorandum would also arguably not have been eligible for derivative protection because its disclosure would not have revealed any client-to-counsel communications. Thus, pre- Gillard, the memorandum arguably would not have been protected by the attorney-client privilege although many lawyers, and, frankly, many judges, would likely have considered the memorandum to be privileged and shielded from disclosure. Pre-Gillard, a lawyer s private report to a client about an earlier nonprivileged event also could have fallen outside the protection of the privilege entirely. For instance, if the attorney attended the deposition of a witness in a civil case, the deposition itself obviously was not a privileged event. After the deposition, the lawyer prepared a memorandum or letter directed to his or her client that reported on what transpired in the deposition. Pre-Gillard, that letter or memorandum may not have been protected by the privilege. It was not a confidential memorandum flowing from client to lawyer, so it would not have been eligible for direct protection. It may not even have been eligible for derivative protection because, if the letter or memorandum merely provided a recitation of what happened at the deposition (a nonprivileged event), the letter or memorandum also would not have revealed any protected client-to-counsel communications. Practice Tip The letter or memorandum described above may well have been protected from disclosure, even pre-gillard. However, the protection would 33
Chapter 5 have come from the work-product doctrine, rather than the attorney-client privilege. The attorney-client privilege and the work-product doctrine, while often lumped together, are different animals entirely. This is particularly so in Pennsylvania, where the work-product doctrine is narrow. See Pa.R.C.P. 4003.3; accord, Harrisburg Authority, 716 F.Supp.2d at 388, n.13. 5-4. Nationwide v. Fleming s Controversial Narrow View of the Scope of Derivative Protection Historically, Pennsylvania courts liberally granted derivative protection to counsel-to-client communications. See, e.g., MacQuown v. Dean Witter Reynolds Inc., 47 Pa.D.&C.3d 21 (C.P. Allegheny 1987). In 2007, the Pennsylvania Superior Court issued a decision that took a decidedly narrower view of the scope of the derivative protection of the privilege. See Fleming, 924 A.2d 1259. In Fleming, the Superior Court held that an in-house counsel-to-client memorandum that discussed legal strategies and responses to a business problem and included counsel s evaluation of the client s prospects for success in litigation was not privileged because the memorandum did not reveal any client-to-counsel communications. See also Smith v. Life Investors Ins. Co., No. 2:07-cv-681 (W.D. Pa. October 16, 2009). An equally divided Pennsylvania Supreme Court affirmed the Superior Court s decision in Fleming per curiam. Notably, of the four justices who participated in the decision, not one appeared to endorse the Superior Court s narrow view of the scope of the privilege. Two agreed with the trial court that Nationwide had waived the protection of the privilege for the document, and two expressly disagreed with the Superior Court s narrow interpretation of the privilege, but found no waiver. However, with the Supreme Court equally divided, the Superior Court s decision in Fleming remained in force. 34
Communications Despite the one-way nature of the direct protection the privilege provided and perhaps because of the historically expansive treatment given to the derivative protection provided to attorney-to-client communications, some courts more sweepingly stated that the privilege applies to all communications from counsel to client. See In re Ford Motor Co., 110 F.3d 954, 965, n.9 (3d Cir. 1997) ( It should be noted that the law makes no distinction between communications made by a client and those made by an attorney, provided the communications are for the purpose of securing legal advice.... In other words, the entire discussion between a client and an attorney undertaken to secure legal advice is privileged, no matter whether the client or the attorney is speaking ) (Ford Motor was a diversity case with the court applying Pennsylvania (and Michigan) state law); Sampson v. School Dist. of Lancaster, 262 F.R.D. 469, 474 (E.D. Pa. 2008); Faloney v. Wachovia Bank, N.A., 254 F.R.D. 204, 209 (E.D. Pa. 2008) ( Communications made both by a client and an attorney are privileged if the communications are for the purpose of securing legal advice ) (applying federal common-law attorney-client privilege); State Farm Mutual Auto. Ins. Co. v. Metropolitan Family Practice, No. 03-969 (E.D. Pa. December 12, 2005) (privilege protects the confidences exchanged between an attorney and a client during the course of representation ) (internal quotation marks omitted) (applying Pennsylvania law); Andritz Sprout-Bauer, Inc. v. Beazer East, Inc., 174 F.R.D. 609, 632 (M.D. Pa. 1997) ( The privilege applies to communications from the attorney to the client, as well as to the reverse ) (Andritz involved the federal common-law attorneyclient privilege, not Pennsylvania s); In re Metropolitan Metals, Inc., 206 B.R. 85, 87 (Bankr. M.D. Pa. 1997) (stating that the attorney-client privilege not only protects the communications that a client might make to... counsel, but it also protects communications that might be made by counsel to the client ); Dombrowski v. Bell Atlantic Corp., 128 F.Supp.2d 216, 218 (E.D. Pa. 2000) ( Like the information a client relays to an attorney in order to obtain advice, the advice given by that attorney in return is also privileged ) (federal attorneyclient privilege); see also Earle, 46 A. 268. 35
Chapter 5 However, based on Fleming, Pennsylvania courts began to pay more attention to, and more strictly enforce, the direct versus derivative distinction when applying Pennsylvania s attorney-client privilege. See, e.g., Harrisburg Authority, 716 F.Supp.2d at 388; Protect Blacksburg v. South Carolina Dep t of Health & Envtl. Control, 22 Pa.D.&C.5th 197, 203 04 (C.P. Cumberland 2011); Kolar v. Preferred Unlimited, Inc., 14 Pa.D.&C.5th 166, 179 (C.P. Philadelphia 2010) (the privilege covers only confidential factual communications from a client to her attorney ). 5-5. Gillard s Adoption of a Two-Way Street In Gillard, the Pennsylvania Supreme Court not only rejected Fleming s narrow view of the derivative protection, but also threw out altogether the distinction between direct protection and derivation protection, and held that Pennsylvania s privilege applies to both client-to-counsel communications and counsel-to-client communications. Gillard, 15 A.3d at 59. In Gillard, the trial court, based on a one-way street perspective on the privilege, ordered the defendant to produce all documents that constituted counsel-to-client communications. 15 A.3d at 48. The Superior Court affirmed, based on Fleming, and the Supreme Court accepted the appeal specifically to clarify the uncertainty that Fleming had created. Gillard, 15 A.3d at 48 50. After a recitation of the parties positions, the Gillard court began its analysis by acknowledging: Id. at 57. the ongoing tension between the two strong, competing interests-of-justice factors in play namely the encouragement of trust and candid communication between lawyers and their clients,... and the accessibility of material evidence to further the truth-determining process. 36
Communications The Gillard majority tacitly acknowledged that a literal reading of the Pennsylvania statutes codifying the privilege supports the one-way interpretation of the privilege. Id. at 57 58. The majority, however, declined to employ literalism when reading those statutes. Id. at 58. Indeed, the majority observed that a literal reading would have barred even derivative protection. Id. In lieu of literalism, the majority chose to resort to necessary, legitimate and expressly authorized assumptions about the legislature s intent in codifying the privilege, and, in so doing, to consider the underlying purpose of the privilege. Id. at 57, 58. In that regard, the majority expressed its belief that the legislature did not intend to require surgical separations and generate the inordinate practical difficulties which would flow from a strict approach to derivative protection. Id. at 58. From there, in relatively abrupt fashion, and in an apparent nod to those policy and practical considerations, the majority appears to have done away with the direct versus derivative distinction altogether when the majority announced: We hold that, in Pennsylvania, the attorney-client privilege operates in a 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. Id. at 59; accord, Mine Safety Appliances Co. v. North River Ins. Co., No. 2:09-cv-348 (W.D. Pa. March 31, 2014). While that concluding two-way street pronouncement from the Gillard court does not refer specifically to the Restatement, it certainly appears that the Restatement s position now prevails in Pennsylvania. The concluding passage from Gillard appears to draw on the language of Restatement section 68, and the ultimately successful Gillard appellants expressly advocated for adoption for the Restatement s position. Gillard, 15 A.3d at 52. Most tellingly, though, is that Justice Saylor authored the Gillard majority decision and also the Fleming opinion in support of reversal. In Fleming, 37
Chapter 5 Justice Saylor, and those justices who joined his opinion, advocated unsuccessfully for the Restatement s position. Gillard, 15 A.3d at 49 50; Fleming, 992 A.2d at 73 74. Justice Saylor s preference for the Restatement s position appears to have prevailed in Gillard and appears to now be the law in Pennsylvania. Consequently, Restatement section 69, comment i, likely now reflects Pennsylvania law with regard to counsel-to-client communication and is set forth here at length: i. Lawyer communications to a client. Confidential communications by a lawyer to a client are also protected... Some decisions have protected a lawyer communication only if it contains or expressly refers to a client communication. That limitation is rejected here in favor of a broader rule more likely to assure full and frank communication.... Moreover, the broader rule avoids difficult questions in determining whether a lawyer s communication itself discloses a client communication. Restatement 68, cmt. i.; see also Levy I, 34 A.3d at 248, 253 (referencing the Gillard court s reliance on the Restatement). Thus, Gillard has done far more than undo Fleming s seemingly too-narrow view of derivative protection. Gillard has, instead, fundamentally changed Pennsylvania s attorneyclient privilege from the traditional one-way street with supplemental derivative protection to the more modern two-way street reflected in the Restatement. 38