Relying at multiple points on an amicus brief filed by the Association of Corporate Counsel and others, the Pennsylvania Supreme Court has returned to the fold and will now apply the attorney-client privilege to confidential communications, in particular, legal advice, from the attorney to the client. The decision is available here.
Prior Pennsylvania court decisions had suggested that only confidential communications from the client to the attorney were protected. Therefore, an opposing litigant could discover an attorney’s legal advice delivered to the client, so long as no confidential information the client provided to the attorney was revealed. This distinction, which offends common sense as well as the majority rule in the states that both types of communications should be safeguarded, is hard to apply in practice. As our brief noted:
“The [lower court’s] constricted view of the attorney-client privilege requires lawyers, clients, and courts to make surgical separations of communications based on client confidences from communications based on other sources. In practice, drawing such distinctions would be imprecise at best. Determining what documents are privileged will have the practical effect of unnecessarily complicating the court’s in camera review of claimed privilege documents and result in affidavits and depositions of attorneys to determine where they obtained the information used as a basis for their legal advice.”
Gillard v. AIG Insurance Co., et al, No. J-58-2010, slip op. at 11 (Pa. S.Ct. Feb. 23, 2011) (citations and internal quotation marks omitted). And, as our brief in Nationwide Insurance Co. v. Fleming, which was the last time the Court addressed this issue, made clear:
“The [lower court’s] holding reduce[s] Pennsylvania’s attorneys to guessing when their own legal advice may be privileged, leaves clients uncertain as to when their lawyers’ communications are confidential, and, consequently, will significantly disrupt the free and candid exchange of information between attorneys and clients.”
Id. at 9 n.5.
Exactly. The Court refused to introduce those complications to the discovery process and to the ordinary practice of law. In-house counsel representing their clients in the Keystone State will now have a more certain privilege on which to rely when they provide candid legal advice. And, a more certain privilege will redound to the company’s benefit by facilitating more informed decision making by the non-lawyers about the constraints and opportunities imposed by legal rules and regulations. For that, the in-house bar and the client companies those lawyers represent, are quite grateful.