Pennsylvania Supreme Court Broadens the Scope of Protection of the Attorney-Client Privilege

The Pennsylvania Supreme Court recently broadened the scope of protection of the attorney-client privilege and aligned Pennsylvania law with the law of most other jurisdictions. In Gillard v. AIG Insurance Co., the Court held that 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.” When a client solicits or an attorney provides professional legal advice, the attorney-client privilege now extends in both directions. Post-Gillard, counsel may provide clients with important legal advice or analysis in writing and, absent waiver or an exception, not risk the possibility of disclosure of the communications to the client’s adversaries during litigation and potential use of the communication to the detriment of the client.

Before Gillard, counsel could not be certain of the extent of the protection for communications from attorney to a client soliciting legal advice because many Pennsylvania courts, relying on a section of the Judicial Code, held that the privilege protected the attorney’s communications to a client only to the extent that the attorney’s communications revealed a previous confidential communication from the client to the attorney. The Gillard majority, however, rejected this approach and agreed with those courts that have realistically “recognized the difficulty in unraveling attorney advice from client input and stressed the need for greater certainty to encourage the desired frankness” that fosters open communication within the attorney-client relationship. The Supreme Court’s interpretation of the privilege eliminates the need to determine whether the attorney’s communication reveals a client confidence, an exercise that can be imprecise at best and which often requires attorneys’ depositions and affidavits about the source of information. Quite simply, absent waiver or an exception, the expanded privilege protects from disclosure counsel’s “downstream communications” to clients as long as the purpose is to provide legal advice.

As noted by the Gillard majority, the decision does not obviate the work-product privilege found in Pennsylvania Rule of Civil Procedure 4003.3, which does not necessarily implicate attorney-client communications. While the Court did not determine the breadth of the work-product privilege, the majority noted that it “manifests a particular concern with matters arising in anticipation of litigation.” Similarly, the Gillard decision does not affect the various exceptions to the attorney-client privilege. Importantly, however, especially for companies with in-house lawyers, the privilege extends solely to legal, not business, advice and does not protect clients from factual investigations nor from bad-faith litigation conduct such as submitting untruthful documents to the court.

For More Information

If you have any questions about this important issue, please contact Daniel B. Huyett at 610.478.2219, or the Stevens & Lee attorney with whom you regularly speak.

This News Alert has been prepared for informational purposes only and should not be construed as, and does not constitute, legal advice on any specific matter. For more information, please see the disclaimer.