Levy v. Senate of Pennsylvania
2011 Pa. Commw. LEXIS 513
Pa. Commw. Ct.2011Background
- Levy sought records of outside counsel retained by the Senate, including bills, contracts and payment records, for specified Senate clients beginning 2009.
- The Senate produced about 100 pages with redactions, primarily redacting client names and descriptions of legal services under the attorney-client privilege.
- Levy appealed the partial denial to the Senate Appeals Officer, who ordered supplemental affidavits or unredacted records to determine privilege applicability.
- The matter proceeded to Commonwealth Court, which held in abeyance while supplemental affidavits were filed and in-camera review was conducted by a special master.
- Post-Gillard, the court evaluated whether client identity and descriptions of services could be privileged, and whether waiver or agency involvement affected privilege.
- The court ultimately held that client names (except one already public) and certain general descriptions must be released, while some specific descriptions implicating confidential communications may remain redacted.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether client identity is privileged | Levy argues identities are not privileged. | Senate asserts client identity can be privileged in certain circumstances. | Names of four clients not privileged; one public name released. |
| Whether descriptions of legal services are privileged | General service descriptions should be disclosed; privilege too narrow. | Descriptions revealing confidential communications should be redacted. | Redaction permitted for descriptions that reveal confidential communications; general descriptions can be disclosed. |
| Whether the Chief Clerk’s involvement waives privilege | Involvement suggests waiver. | Chief Clerk acts as agent for privilege; no waiver. | No waiver; Chief Clerk constitutes client’s agent for privilege purposes; waiver rejected. |
| Whether Gillard v. AIG expands the scope of privilege to client identity | Gillard narrows or does not extend privilege to client identity. | Gillard supports broader derivative privilege including client identity. | Gillard supports broader protection; but Pennsylvania precedent still allows disclosure of client identity when identity disclosure does not reveal confidential communications. |
| Whether partial redactions can be sustained under exceptions (legal advice/confidential communications) | Exceptions do not apply to the records here. | Exceptions apply to protect motive and confidential communications. | Some specific descriptions redacted; general descriptions not protected. |
Key Cases Cited
- In re Grand Jury Investigation, 631 F.2d 17 (3d Cir. 1980) (identity of clients generally not privileged)
- McGogney, 13 A.3d 569 (Pa. Cmwlth. 2011) (work-product/privilege related to redaction context)
- Schenck v. Township of Center, 893 A.2d 849 (Pa. Cmwlth. 2006) (work-product framework; not directly controlling here)
- Chmiel, 585 Pa. 547 (2005) (fee agreements not protected if do not reveal confidential communications)
- Slusaw v. Hoffman, 861 A.2d 269 (Pa. Super. 2004) (invoices redacted for confidential communications; nonconfidential items disclosed)
- Gillard v. AIG Insurance Company, Pa. _, 15 A.3d 44 (2011) (broad derivative privilege expanding protection of attorney-client communications)
- Beeson v. Beeson, 9 Pa. 279 (1848) (attorney testifies to existence and nature of representation; not privileged to reveal client identity)
- In re Seip's Estate, 163 Pa. 423 (1894) (mere fact of employment not privileged)