February 24, 2011
Written By Attorneys: Michael A. Hamilton and Mark H. Rosenberg
This article is an interpretation of current law and is offered for informational purposes only. This material is not legal advice and should not be construed or used as a substitute for the advice of an attorney.
In a significant decision clarifying an issue that has been viewed with a great deal of uncertainty by the Pennsylvania legal community, the Pennsylvania Supreme Court has held that the attorney-client privilege is not limited to communications originating from a client to an attorney, but also attaches to communications from the attorney to his or her client. In Gillard v. AIG Ins. Co., --- A.3d ---, 2011 WL 650552 (Pa. Feb. 23, 2011), the plaintiff filed suit against its insurer, claiming the insurer acted in bad faith during the handling of the plaintiff's uninsured motorist claim. The Supreme Court examined an interlocutory appeal of a trial court order mandating the production of communications from an attorney, representing the insurer in the underlying litigation, to the insurer. The trial court's decision was based upon the language of the statute governing the attorney-client privilege in Pennsylvania, which states that "[i]n a civil matter counsel shall not be competent or permitted to testify to confidential communications made to him by his client, nor shall the client be compelled to disclose the same, unless in either case this privilege is waived upon the trial by the client." 42 Pa. C.S.A. § 5928. This decision was affirmed without opinion by the Superior Court, which based its holding upon its recent decision in Nationwide Mut. Ins. Co. v. Fleming, 924 A.2d 1259, 1269 (Pa. Super. Ct. 2007), aff'd on other grounds by an equally divided court, 992 A.2d 65 (Pa. 2010), in which it had recognized that the privilege generally applied only to communications originating from a client, while also acknowledging that the privilege also pertained to certain communications from an attorney to a client to the extent that they reflected previous confidential communications from the client. As none of the attorney-originated communications reflected confidential communications from the client, the Superior Court concluded that they were not protected by the attorney-client privilege. While the Supreme Court accepted review of Fleming, it did not reach the issue of the scope of the attorney-client privilege, instead determining that the privilege could not be asserted in the case at hand due to waiver.
In Gillard, the Supreme Court stated that a "broader range" attorney-client privilege is necessary "if open communication is to be facilitated." The Court noted that "it would be imprudent to establish a general rule to require the disclosure of communications which likely would not exist (at least in their present form) but for the participants' understanding that the interchange was to remain private."
The Court further observed that in enacting the attorney-client privilege statute, it was not clear that the Legislature intended strict limits on the attorney-client privilege. The Court noted that as client communications and attorney advice are "often inextricably intermixed," the Legislature could not have designed the statute to require "surgical separations" and generate the substantial practical difficulties flowing from a strict approach to the attorney-client privilege.
The Court therefore concluded 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."
By applying a common-sense determination regarding the proper scope of the attorney-client privilege, the Pennsylvania Supreme Court's opinion in Gillard resolves an issue that has caused unnecessary confusion in recent years. In acknowledging the broad scope of the attorney-client privilege, the Supreme Court has recognized the fundamental public policy of encouraging candid communication between attorneys and clients without fear of disclosure.
