Miles (and Wilt) on attorney-client privilege and work product doctrine

Straight from the department of shameless self-promotion: my latest article (co-authored by Ethan Wilt) in the Pennsylvania Bar Association Civil Litigation Update, Don’t Forward that Email: Avoiding Waiver of the WorkProduct Doctrine and Attorney-Client Privilege WhenCommunicating with Consultants. It's basically a case summary of BouSamra v. ExcelaHealth, 210 A.3d 967 (Pa. 2019), which I blogged about here.

SCOPA on Work Product Doctrine and Attorney-Client Privilege

The Supreme Court of Pennsylvania (SCOPA) published a decision addressing the work product doctrine and the attorney-client privilege - BouSamra v. Excela Health. More specifically, the Court analyzed whether a hospital waived either of those protections by forwarding an email from its outside counsel to its "public relations and crisis management consultant." The emails related to an internal investigation of one of the doctors.

It turns out that the two protections require different analysis in this case. Disclosure to a third party does not necessarily waive the work-product doctrine. Instead, SCOPA concluded that

[T]he attorney work product doctrine is not waived by disclosure unless the alleged work product is disclosed to an adversary or disclosed in a manner which significantly increases the likelihood that an adversary or anticipated adversary will obtain it.

The Court then remanded the case back to the trial court to apply this newly articulated standard.

 The attorney-client privilege is different - disclosure to a third party generally does waive that privilege. There are, however, exceptions. Disclosure to certain agents is protected. For example, disclosure to an expert consultant, accountant, or third party interpreter might not waive the privilege.

[If] the client is a corporation, the attorney-client privilege extends to communications between its attorney and agents or employees authorized to act on the corporation’s behalf . . . . [T]he attorney-client privilege is [generally] waived when a confidential communication is shared with a third party . . . . [T]he critical [issue is whether] the third-party’s presence was either indispensable to the lawyer giving legal advice or facilitated the lawyer’s ability to give legal advice to the client.

SCOPA concluded that forwarding the email to a PR firm neither "facilitated [n]or improved the lawyer’s ability to provide legal advice." Thus, the privilege was waived (but, see above, possibly still protected by attorney work product doctrine).

Two important issues for civil litigation attorneys to keep in mind.

Attorney-Client privilege in internal sexual harassment investigations

Here's an interesting case out of the Southern District of New York, dealing with attorney-client privilege in internal investigations. The case is Barbini v. First Niagara Bank (HT: The Legal Intelligencer, Ruling Highlights Narrow Path in Defending Sexual Harassment Complaints).

The plaintiffs claimed that they complained about sexual harassment, and then their employer merely warned the harasser while firing them. The employer claims it fired them for notary law violations.

Not official use.

Not surprisingly, the employer consulted with its in-house counsel on the harassment issue and the notary issues. Is that protected by attorney-client privilege? The Court says, yes. While recognizing the dual-role that in-house counsel sometimes serves (attorney and business consultant), the Court held:

Communicating legal analysis to the person ultimately deciding whether to fire and employee is precisely the type of legal advice that is protected by the attorney-client privilege. (internal citations and quotations omitted). 

But wait, there's more!

Here, however, the Court also concluded that the employer waived the privilege. How? The employer did not directly raise an "advice of counsel" defense - but it did raise the Faragher/Ellerth defense.* Deposition testimony from an HR rep also established implied reliance of the advice of in-house counsel on the harassment and notary issues.

This goes straight to the heart of the employer's defense - that it looked into the harassment claims and concluded that termination was not necessary for the alleged harasser, and in reliance on advice from counsel concluded that the complainants/plaintiffs had violated New York notary laws. As the Court stated:

Defendants cannot have their cake and eat it too. There is virtually no way for any decisionmaker or adversary to assess the veracity of Defendants’ defense if the documents and conversations related to both investigations are concealed.

Frankly, I'm not sure that every court would reach this same conclusion. This case serves as a cautionary tale though - attorney-client communications (even legal advice) will not always be protected by a court. Particularly, privilege may be waived where the employer attempts to rely on the advice and investigation of its counsel as a defense.

* The Faragher/Ellert defense is an affirmative defense requiring employers to establish "(1) the employer exercised reasonable care to prevent and correct any-harassing behavior and (2) that the plaintiff unreasonably failed to take advantage of the preventative or corrective opportunities that the employer provided."

Attorneys' Duties Regarding Employee Emails

According to new ABA opinion letters, and a new article from Corporate Counsel, attorneys in employment law owe a duty to warn employee-clients about email interception. In ABA Opinions Clarify Ethical Obligations in Email interception, Jeff Campolongo addresses this "trending" topic in "employment law circles and blogs." Hey! I run in employment law circles, have an employment law blog... and everyone knows I'm trendy! I better get on this topic.

The gist is this: employees often communicate with their attorneys via email, and sometimes they do this on work-time and/or using work email accounts, computers, smartphones, or other devices. One issue arises on the employer's side: If the employer's attorney acquires these emails, does he or she have a duty to notify the employee or the employee's counsel of the interception? This is addressed in ABA Formal Opinion 11-460, which concludes:

When an employer’s lawyer receives copies of an employee’s private communications with counsel, which the employer located in the employee’s business e-mail file or on the employee’s workplace computer or other device, neither Rule 4.4(b) nor any other Rule requires the employer’s lawyer to notify opposing counsel of the receipt of the communications. However, court decisions, civil procedure rules, or other law may impose such a notification duty, which a lawyer may then be subject to discipline for violating.

Good news for employer-side attorneys! But, what about the employee's attorney? A separate opinion, ABA Formal Opinion 11-459 concludes:

A lawyer sending or receiving substantive communications with a client via e-mail or other electronic means ordinarily must warn the client about the risk of sending or receiving electronic communications using a computer or other device, or e-mail account, where there is a significant risk that a third party may gain access. In the context of representing an employee, this obligation arises, at the very least, when the lawyer knows or reasonably should know that the client is likely to send or receive substantive client lawyer communications via e-mail or other electronic means, using a business device or system under circumstances where there is a significant risk that the communications will be read by the employer or another third party.

Fair warning for employee-side lawyers! Now, the question becomes: What should attorneys do about this? Well, in Mr. Campolongo's article he suggests including the following warning in client engagement letters:

Many employers monitor their employees' e-mails, internet usage, voicemails, and other electronic storage media. To preserve the attorney-client privilege and to avoid having any third parties gaining access to our confidential communications, please do not e-mail us from work and do not e-mail anyone else about your matter/dispute from work -- this includes logging into your private e-mail account from work, from a work laptop computer or from any company-owned equipment (e.g., Blackberry, PDA, cell phone, etc.). In addition, do not post anything related to your employment on the internet, such as postings on blogs, social networking sites, chat rooms, Facebook, or Twitter.

The ABA opinion doesn't specifically address social media, Twitter, Facebook, blogs, or other Internet postings... but I like Mr. Campolongo's aggressive, proactive stance on the issue!

Image: Public Domain Email Icon Crystal.

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.