Friday, February 25, 2011

Attorney-Client Privilege Goes Both Ways in PA - COTW #29

On Wednesday, the Pennsylvania Supreme Court issued its opinion in Gillard v. AIG Insurance, Co. The Court considered "whether, and to what degree, the attorney-client privilege attaches to attorney-to-client communications." It's the Lawffice Space employment law Case of the Week, although clearly it will have huge ramifications for all attorneys across the state of Pennsylvania.

Pennsylvania statute provides:
In 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. § 5928 (emphasis added). This provides a significant textual roadblock for protecting communication by the attorney. Although, the Pennsylvania Constitution grants the Supreme Court the broad "power to prescribe general rules governing practice, procedure and the conduct of all courts." Pa. Const. Art. V s. 10(c).

The 5-2 majority opinion concluded:
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.
It's hard to find a clearer holding than that!

HT to my colleague, Jon Stepanian, who authored a great post on this topic on his Defense of Medicine blog: Attorney-Client Privilege a Two-Way Street After All.

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.