Perelman, J. v. Raymond G. Perelman Revocable Trust
259 A.3d 1000
Pa. Super. Ct.2021Background
- Jeffrey E. Perelman sued Cozen O’Connor under the Dragonetti Act, alleging Cozen wrongfully used civil proceedings in representing Jeffrey’s father, Raymond G. Perelman, in prior suits.
- Cozen sought to produce 19 documents generated during its representation of Raymond; the Raymond trust/estate (Appellants) moved for a protective order to block production of 18 of them as privileged (attorney-client and/or work product).
- Cozen invoked the "self-defense" exception in Pennsylvania Rule of Professional Conduct 1.6(c)(4), claiming it could disclose client confidences to defend against JEP’s Dragonetti claim.
- The trial court ordered production of the disputed documents based on Rule 1.6(c)(4) and declined to rule broadly on waiver for other documents; Appellants appealed.
- The Superior Court affirmed the production ruling (agreeing Rule 1.6(c)(4) could justify disclosure), but reversed the trial court’s refusal to declare that privileges for other, non-produced documents relating to the same subject matter remained preserved; remanded for entry of that narrower protective finding.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Rule 1.6(c)(4)'s self-defense exception permits disclosure of privileged attorney-client and work-product materials in this third-party Dragonetti action | Appellants: privileges (attorney-client and work product) protect the documents; Rules of Professional Conduct are not substantive law and do not override those privileges; explanatory comments are non-binding | Cozen: Rule 1.6(c)(4) allows disclosure to establish a defense in a civil claim alleging lawyer misconduct, even where claim is brought by a third party | Held: Affirmed trial court — Rule 1.6(c)(4) can justify disclosure here and the court did not err in ordering production |
| Whether the court erred by refusing Appellants' alternative request to preserve privilege/work-product protection as to other documents and the subject matter after ordering production | Appellants: they did not consent to disclosure and sought an on-the-record statement that production of the 18 documents would not constitute subject-matter waiver for other confidential communications | Cozen: any privileges not necessary for self-defense remain protected; Cozen says it did not waive privileges beyond the 18 documents | Held: Reversed in part — Superior Court held the trial court should have ruled that privileges as to other confidential communications on the same subject matter remain preserved; remanded for entry of that protective finding |
Key Cases Cited
- Office of Disciplinary Counsel v. Baldwin, 225 A.3d 817 (Pa. 2020) (Rule 1.6 confidentiality and limits on unilateral waiver discussed)
- BouSamra v. Excela Health, 210 A.3d 967 (Pa. 2019) (distinguishes waiver analysis for attorney-client privilege versus work-product doctrine)
- Red Vision Systems, Inc. v. National Real Estate Information Services, L.P., 108 A.3d 54 (Pa. Super. 2015) (historical purpose and limits of attorney-client privilege)
- Berkeyheiser v. A-Plus Investigations, Inc., 936 A.2d 1117 (Pa. Super. 2007) (discovery orders involving privileged materials are immediately appealable)
- Gillard v. AIG Ins. Co., 15 A.3d 44 (Pa. 2011) (work-product protection does not require client communications)
- Bagwell v. Pennsylvania Dep't of Educ., 103 A.3d 409 (Pa. Cmwlth. 2014) (Pennsylvania has not adopted broad subject-matter waiver for selective privileged disclosures)