Supreme Court of Pennsylvania Expands Attorney-Client Privilege to Protect both Client-to-Attorney Communications and Attorney-to-Client Communications.

On February 23, the Supreme Court of Pennsylvania, held in a landmark 5-2 decision that Pennsylvania’s attorney-client privilege operates in a two-way fashion, protecting confidential client-to-attorney and attorney-to-client communications made for the purpose of obtaining or providing professional legal advice rather than continuing with protections that required courts to review attorney-to-client communications for possible information provided by the client. After reviewing the prior case law and the competing public interests, the Court ultimately determined that the legislature did not intend to exclude attorney-to-client communications from the attorney-client privilege. Without the protection, the court felt that certain important communications from the attorney to the client might not take place if the communications were not kept private. This decision broadens the protection afforded to clients seeking legal advice from their counsel and brings Pennsylvania into alignment with the attorney-client privilege laws in a majority of states.

The Court’s ruling interpreted Pennsylvania’s attorney-client privilege statute which states “[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. § 5928. The majority opinion, written by Justice Saylor, acknowledged that courts applying Pennsylvania law have frequently wrestled with the scope of the attorney-client privilege. The opinion also acknowledged that “… Pennsylvania courts have been inconsistent in expressing the scope of the attorney-client privilege.”

Although the Appellee argued that the statute was unambiguous on its face, the majority determined that over the course of time there has become “… a universally-recognized (but legislatively unstated) derivative protection” that allows attorney-client privilege for some attorney-to-client communications that include information provided by the client. The Court also held that under the Pennsylvania Constitution, the Court maintained a role beyond the mere construction of statutes in determining the appropriate scope of testimonial privileges.

The Court reasoned that to determine the appropriate scope of the derivative protection required an examination of the ongoing tension between the encouragement of trust and candid communication between lawyers and their clients and the accessibility of material evidence to further the truth-determining process. Ultimately, the Court held 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 also noted that client communications and attorney advice are often inextricably intermixed and that the legislature did not intend for the statute to require “surgical separations” which would generate “inordinate practical difficulties” which would flow from a strict approach to derivative protection. Accordingly, the Court granted a blanket protection of both attorney-to-client communications and client-to-attorney communications made for the purpose of obtaining or providing professional legal advice under 42 Pa.C.S. § 5928.

Justices Eakin and McCaffery dissented from the ruling. In his dissent, Justice Eakin agreed that a certain “derivative privilege equally protects those attorney-to-client communications containing client-to-attorney communication,” but Justice Eakin argued that a distinction should be made “… where the communication contains no information at all emanating from the client, and the communication is relevant to the legal rights at issue in a separate and distinct action… .” In his dissent, Justice McCaffery argued, amongst other things, that ambiguities in the prior case law were overstated by the majority, the statute was unambiguous and should be read on its face, and that the work-product privilege addresses any policy concerns raised by the Appellants and various amici.