Peacock Tales • Winter 2012

 

Attorney-Client Privilege: No Longer a One-Way Street

Rachel Lozosky

The protection afforded by law to confidential communications between a client and  his or her attorney can be a source of great assurance to those who come in contact with the justice system.  In addition to an attorney’s ethical obligation to protect client confidences, it has long been the case in Pennsylvania that an attorney is prohibited by statute from testifying in a civil matter about confidential communications made to him or her by a client.  Likewise, the client is protected by statute from being forced to disclose in a civil action the content of his or her confidential communications to his or her attorney.  The right to waive attorney client privilege is vested by statute in the client alone.

The plain language of the controlling Pennsylvania statute indicates that the Legislature envisioned attorney-client privilege as a “one-way street,” which would cover only confidential communications made by the client to the attorney, not by the attorney to the client.  Nevertheless, in years past, the united states district Court for the Eastern District of Pennsylvania, as well as the Pennsylvania Superior Court, recognized the emergence of a common-law doctrine which offered some level of  “two-way street” protection.  Under this narrowly-applied doctrine, privilege attached to communications by an attorney to a client, only if such communications revealed and/or were based on confidential communications made by the client to the attorney.

More than a century ago, the Pennsylvania Supreme Court took a broader view, and issued an opinion indicating that all attorneys to client communications are privileged.  However, the Court never issued a majority opinion affirming that case since it was decided in 1900.  Attorneys and their clients thus faced a lack of clarity on the issue.

In February 2011, the Pennsylvania Supreme Court once again weighed in on the issue.  In Gillard v. AIG Insurance Co., the Court held that “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.”  Thus, your attorney is prohibited from disclosing in a civil matter, without your permission, a wide range of communications that he or she made to you in the course of representing you.

However, a word of caution in this area is appropriate.  Still open for discussion after the Gillard decision is the question of how far courts will go in analyzing whether a specific communication by an attorney is based upon or reveals an underlying communication by a client.  In referencing the earlier, more narrow view of other courts, the Gillard court stated that “if open communication is to be facilitated, a broader range of…protection is implicated.”  It may not have been the court’s intention to make every attorney to client communication privileged without some consideration of the communication’s origin.  A “broader range of protection” is not necessarily the same as an all-encompassing protection of information that did not originate with the client.

One may wonder whether a court taking this broader view would ever find a situation in which an attorney’s communication to a client was not in some way initiated by the client.  Most attorney-to-client communications can likely be traced to the initial phone call or conference in which the client revealed confidential information in anticipation of retaining the attorney.

It is now the established law of Pennsylvania that attorney-client privilege operates as a “two-way street.”  Stay tuned in hopes of further clarification from the courts as to the breadth and parameters of that “street,” and to what extent courts may still inquire into the origin of an attorney-to-client communication.


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