*1
2009,
and the Order of the Commonwealth Court at 1252 C.D.
2010,
2,
Vacate,
July
granted
dated
which
Application
Clarify
or
of Prohibi
Modify
Supersedeas,
Grant Writs
Mandamus,
Relief,
tion and
and for Ancillary Jurisdiction
Petitioner’s filing
REVERSED.
of a Petition for Allowance of
Appeal from the Commonwealth Court’s decision in German
town
v. Philadelphia Parking
Cab Co.
Authority,
Company Pennsylvania Key State In- Auto Services, Appellants.
surance Plan and AIG Claims Supreme Pennsylvania. Court of
Argued Sept. 2010.
Decided Feb. *3 Weber, David J. Rosenberg, Gallagher, Simpson, Stapleton, L.L.P., Newby, Fires & Pittsburgh, for AIG Insurance Com- pany and AIG and The Company Insurance of The State Pa., et al. Palumbos, McCarthy Pittsburgh, L. Robert Byer,
Robert Morris, L.L.P., Duane Thomas Audigier, E. Norland Christina O’Connor, L. Jr., Philadelphia, William Cozen G. Wilkinson Rothachild, L.L.P., Amicus Pittsburgh, for Curiae Stang, Fox Bar Association. Allegheny County Palumbos, McCarthy Robert Byer, Pittsburgh, L. Robert Morris, Duane Philadelphia, E. Audigier, Christina Norland Hackett, L.L.P., for Amicus Curiae Association Cor- Susan Counsel. porate Palumbos, McCarthy Robert Byer, Pittsburgh,
Robert L. Morris, Duane Audigier, Philadelphia, E. Norland Christina L.L.P., Conrad, Sarwal, Amicus Amar D. for Curiae Robin S. of America. of the United States Chamber Commerce Jr., Gates, L.L.P., Fine, Krill David R. John P. K&L Penn- Energy for Amicus Curiae Association of Harrisburg, sylvania. Palumbos, McCarthy L. Robert Byer, Pittsburgh,
Robert Morris, L.L.P., E. Norland Duane Thomas Audigier, Christina Jr., O’Connor, for Amicus Philadelphia, G. Wilkinson Cozen Pennsylvania Bar Association. Curiae Palumbos, Byer, Pittsburgh, McCarthy Robert L. Robert Morris, L.L.P., Duane Thomas Audigier, Christina E. Norland O’Connor, Jr., F. Blank Cooper, Wilkinson Cozen Scott G. LLP, Bar Philadelphia, Philadelphia Rome Amicus Curiae Association. *4 Jr., Cohen, L.L.P., Kelly E. Parker & Antho- Kelly,
Robert Parker, The American ny Harrisburg, W. for Amicus Curiae Assoc., et al. Insurance Rubin, P.C., Moroney,
Matthew A. Miller & Goldberg, Sosnowicz, Michael T. Michael T. Neiger, Philadelphia, Claire Associates, P.C., Darby, Sosnowicz & for William Gillard. C.J., EAKIN, BAER, CASTILLE, SAYLOR, BEFORE: TODD, McCAFFERY, MELVIN, ORIE JJ.
OPINION Justice SAYLOR. whether,
In appeal, degree, this we consider and to what attorney-to-client attaches to commu- nications. litigation
This entails a claim of bad faith out of arising insurance companies’ handling Appellee’s uninsured motor- ist claim. During discovery, Appellee sought production of all documents from the file of the firm law representing (who insurers in the underlying litigation are the appellants here). Appellants withheld and redacted documents created counsel, asserting attorney-client privilege.
In response, Appellee sought to compel production. Appel- lee took the position attorney-client privilege Pennsylvania very according to Section 5928 of the limited— Judicial Code—to confidential communications initiated by the client:
5928. Confidential communications In a civil matter counsel shall not competent be or permit- ted to testify confidential communications made to him by client, his nor shall the client compelled to disclose the same, unless in either case this is waived upon trial the client. § 5928. Pa.C.S. allowed,
Appellee’s abstract, motion in the that certain lawyer-initiated communications might contain information and, with the client originating accordingly, bemay privileged. observed, Appellee however, that had not Appellants sought rather, such protection, derivative but asserted the privilege broadly, as if it were a “two-way street.” Appellee maintained is, fact, that the “one-way street” and must be strictly contained to effectuate the will of the General Assem- bly and minimize interference with the truth-determining pro- cess. As further support, Appellee referenced Birth Center v. Cos., Inc., (“The St. Paul (Pa.Super.1999) ... only discovery testimony bars or *5 70 by the client communications made
regarding confidential
of
during
representation.”).
the course
highlighted
privilege’s
For their part, Appellants
of relevant
exchange
the free and open
to foster
purpose
encourage
client.1 To
lawyer
information between the
and his
reasoned,
disclosure,
both client- and
candid
Appellants
such
In
enjoy protection.
communications must
attorney-initiated
Appli
referenced Maiden Creek T.V.
regard, Appellants
this
Co.,
ance,
No.
05-
Casualty
Inc. v.
Insurance
Civ.A.
General
(“The
(E.D.Pa.
2005)
667,
1712304,
21,
July
at *2
2005 WL
professional
disclosure of
attorney-client privilege protects
attorney
advice
an
to a client or of communications
to render sound
attorney
client to an
to enable
390, 101
professional
(citing Upjohn,
advice.”
U.S.
S.Ct.
683)).
stressed,
that,
Appellants
pre
also
under caselaw
arena,
asserting
in the bad-faith
a carrier
an
vailing
litigation
advice-of-counsel defense waives the
See, e.g.,
relative to such advice.
Mueller v. Nationwide Mut.
1996)
Co.,
23,
(C.P.Allegheny,
Ins.
31 Pa. D. &
32-33
C.4th
J.).
(Wettick,
such a waiver would
According
Appellants,
1. Accord.
ple”
value of
tration of
objective
so essential to the administration of
relationship”).
promote
services”).
contributes
attorney’s
ests.”);
Pa.R.P.C. 1.6 cmt.
("Without
frank
Upjohn Co. v. United
or the
only
omitted)); Lawyers
tive need for confidence and trust”
677, 682,
L.Ed.2d 337
Pa.
that communications between
During in camera review in the proceedings presence of counsel, the pleas common court the adopted “one-way street” N.T., 29, perspective. 2007, Mar. at 8 (“According to the statute, Pennsylvania the attorney-client protection only ap- plies to by communications made the client. my That’s rul- Further, ing.”). as following reflected the interchange with counsel, defense the court repeatedly grounded its ruling on information, direction of the flow of the content, not the that suggesting derivative was absent: [Defense I think with that ruling, Honor, Counsel]: Your then that would obviate the need to go through a number of documents that client, are communications from attorney to because as I understand the ruling, is that those communi- are, cations pursuant to the Court’s ruling, going not to be within the scope attorney-client privilege.
THE Exactly. COURT: Id. at 8-9. Additionally, pleas common court couched its ruling as a “blanket” one. Id. 27.
In its opinion 1925, under Rule of Appellate Procedure court referenced the following decisions as supportive of its Rimar, Inc., ruling: 138, Slater v. 148, 584, 462 Pa. 338 A.2d (1975) (“[T]he law wisely declares that all confidential disclosures, communications and made a client by to his legal adviser for the purpose obtaining his professional aid or advice, (citation shall strictly privileged[.]” and quotation omitted)); marks 112, Commonwealth v. Maguigan, 511 Pa. 1327, (1986) 511 A.2d (describing the attorney-client law, the context of the criminal see Pa.C.S. § as “limited to confidential communications and disclo- sures made advisor”); client to his legal and In re Wood, Estate (“[T]he 818 A.2d 571 (Pa.Super.2003) privilege applies only to confidential communications made by the client to the attorney[.]”). court, however, The appeared to moderate its focus on the direction of flow and to accept possibility of some protection. Nevertheless, derivative it not that withheld argued had
explained Appellants originating contained information communications the client. with invoking the collat interlocutory appeal, filed an
Appellants Schwartz, 313; Ben v. doctrine. See Pa.R.A.P. eral order (1999). 483-85, Superior 729 A.2d 551-52 Pa. affirmed in a brief memoran jurisdiction exercised Court Mutual Insurance Co. v. relying on Nationwide opinion, dum (holding 1269 (Pa.Super.2007) Fleming, communications only available for confidential “protection is original)), counsel” on (emphasis made the client to aff'd court, 468, 992 divided grounds by equally other an (2010). Fleming, panel with A.2d 65 Consistent Gillard *7 limited.” v. being “strictly the as See Gillard privilege treated 4, Co., 2007, slip op. No. 1065 EDA A.2d AIG Ins. 2008). (Pa.Super. Jan. recognize Fleming’s
Like the did Appellee, Superior Court attorney-to-client derivative of allowance for some (“Fleming id. at 5-6 makes it clear that communications. See ... protected from an to a client are communications they but to the extent that reveal only under Section made the client to previously by confidential communications obtaining legal (quotation counsel for the of advice.” purpose Nevertheless, in emphasis original)). marks omitted and no claim that the docu- panel specific sought-after discerned ments confidential communications made would disclose Thus, held, attorneys. to their it did Appellants not id. at 6. apply. See Gillard,
After the
entered its
in
this
Superior
opinion
Court
in an
divided
Fleming
equally
opinion.
Court addressed
See
[i]f [did] man about to become involved in affairs, complicated business he would incur whereby grave responsibilities, away should run from a rather than lawyer him. If consult the secrets of the professional relation can court, be extorted from counsel in open antagonist of client, his the client will exercise common prudence by avoiding counsel.
Id. at
The lead opinion Fleming did not resolve facial tension between Earle’s broad perspective on the privilege Rather, and the statute’s narrower focus. the lead Justices found the appellants had waived the attorney-client privilege by producing documents reflecting subject the same matter as 475-477, the withheld documents. Fleming, 605 Pa. at affirmance). A.2d 69-70 (opinion support The opinion supporting reversal differed with this finding Furthermore, here, waiver. and as relevant the Justices favoring reversal also took a approach broader to the attor- ney-client than that Superior Court.
opinion expressed with agreement amici that a “narrow ap- proach to the attorney-client privilege rigidly centered on the *8 identification specific of client communications” was unwork- able, “in attorney advice and client are often input inextricably intermixed.” Id. at 992 (opinion A.2d at 71 in reversal). of support The Justices supporting opinion this also reasoned that allowing for derivative protection but closely limiting its would lead to scope and undue uncertainty precau- in discussions, tion lawyer-client rather than fostering desired frankness. Their opinion concluded:
While that the acknowledge [we] core concern underlying the attorney-client privilege is the of client com- munications, due to the unavoidable intertwining of such advice, communication and responsive would remain [we] 74 Although reflected in approach [Earle ].
with the pragmatic degree overprotection, some of may inevitably this extend underlying the policies it be consistent with the find to [we] direction, legislative particularly and the relevant pertaining construction statutory in light principle (“[W]hen § 1 1922 enactments. See Pa.C.S. legislative used in a language resort has construed the court of last in statutes on the statute, Assembly subsequent the General to be matter intends the same construction subject same Moreover, the approach such placed upon language.”). jurisdictions, accord majority consistent with that of a (Third) Lawyers §§ the Law 68- Governing Restatement (2000), consistency § i for yields greater 70 & 69 cmt. which many doing [We] interstate business. corporations issued a few decisions in recognize that this Court has Earle; however, a deeper tension with none has entailed Pennsylva- of the in reassessment nia, as this case was selected to achieve. (footnotes omitted); 482-483, Id. at 73-74 cf. (“The
Alexander,
is,
203, A. at
rule
general
In the aftermath of the divided to determine the appeal appropriate scope was selected attorney-client Pennsylvania. couch the threshold issue as “whether communi-
Appellants may enjoy protec- cations from an to the client ever tion from disclosure as an communication.” Brief ac- Appellants (emphasis original). They particular protecting terms of the statute confi- knowledge communications, they provision dential client but assert limit the nature of the change was not intended or essential lawyer-to-client common law confidential communi- governing (McNaughton § cations. rev. Wigmore, Evidence Cf. 1961) (“That are attorney’s communications to the client always also within the was assumed in the earlier brought question.” (emphasis cases and has seldom been into (2010). § original)); accord Am.Jur.2d Witnesses Moreover, according interpreted Earle Appellants, *9 statute, clarified the confidential-communications validating that advice position attorney is within the of the scope protection. In this regard, Appellants recognize Earle statute, made no specific reference to the position but their it be presumed should the decision interpretive was They that, nature.2 also advance a presumption when the General Assembly substantially reenacted the language Code, Section 5928 of the Judicial its intention was to incorpo- Earle, 1922(4) rate consistent with Section of the Judicial 1922(4).3 Code, 1 § Pa.C.S. brief,
Throughout their Appellants stress the historical ac- see, ceptance of the privilege, e.g., Chmiel, Commonwealth v. 478, 493, (1999) (“Although now statute, embodied in the attorney-client privilege is deeply Indeed, rooted in the common law. it is the most revered of (citations omitted)), common law privileges.” as well as the justifications, underlying policy see supra note l.4 Appellants maintain that a close confinement to client-initiated communi- positions regarding 2. Similar the common law and Earle are advanced joint supporting Appellants amicus briefs filed on behalf of: the Counsel, Association, Corporate Pennsylvania Association of Bar Phila- Association, delphia Association, Allegheny Bar County Bar and Cham- America; ber of Commerce of the United States of the American Association, Institute, Pennsylvania Insurance Defense Insurance Fed- Inc., Pennsylvania, eration of Philadelphia and Association of Defense Counsel; separate, supportive as well as in a amicus brief submitted Energy Pennsylvania. Association of Co., 3. Accord Cohen v. Pa.Super. Jenkintown Cab 462 n. (1976) (noting original A.2d 692 n. 2 that the statute “has been principle treated as a restatement as it law.”); Counsel, existed at Corporate common Brief for Amici Ass’n of ("The opinion et al. at 14 contemporane [Earle] evidences this Court's that, understanding ous enacting predecessor § Assembly General did not questioned’ intend to alter the 'seldom common law view that communications from an to a client for provision legal privileged.”). advice are resolution, In a recent the American encapsulated Bar Association purposes such as follows: RESOLVED, that the American strongly supports Bar Association preservation product and work doc- trine maintaining as essential to relationship the confidential between attorney required client encourage clients to discuss their (1) fully candidly matters with their promote counsel so as to compliance (2) through with the law counseling, effective ensure
76 inhibiting free salutary purposes by
cations undermines
communications,
protection
of the weakened
light
open
and
449
Upjohn,
uncertainties. Accord
U.S.
and associated
(“[I]f
the of
purpose
[t]he
on the erroneous
premised
assumption
lawyer,
that a
counsel,
whether it is outside or in-house
can communicate
with a
purpose
client for the
advice in
providing legal
a
reveal, reflect,
manner that does not
or lead to inferences
However,
about confidential client communications.
“attor-
ney advice and client
are often
input
inextricably inter-
[,
mixed.”
605 Pa. at
Fleming
78 view of the Court’s constricted Superior clients, make “sur and courts to requires lawyers, on client confi of communications based
gical separations” Spec based on other sources. dences from communications Bank, N.Y.2d Int’l Chemical Sys. Corp. [v. trum (N.Y.1991) [1055,] In 809], N.E.2d 1061 [ ]. N.Y.S.2d imprecise such distinctions “would practice, drawing F.R.D. at 603. Determin Litig., In re LTV Secs. best.” have the practical what documents are will ing privileged the court’s in camera unnecessarily complicating effect of in affida review of claimed documents and result attorneys they to determine where depositions vits and the information used as a basis for their obtained advice. Counsel,
Brief for Amici Ass’n of
et al. at
20.7
Corporate
of the Re
Accordingly,
approach
consistent with the
Third,
should ex
Appellants
statement
contend
attorney-to-client
containing
tend to all
communications
ad
vice, analysis,
legal opinions. See Restatement
(Third)
and/or
Lawyers
Governing
§
69.8
acknowl
Appellants
the Law
judicial
that the
decisions have not been
edge, “[r]egrettably,”
Case,
(D.C.Cir.1984) ("In given
F.2d
7. See also In re Sealed
case,
prompted by
may
advice
the client's disclosures
be further
*12
encounters.”);
inseparably
by
knowledge
Spectrum
informed
other
809,
(describing
Sys.
Corp.,
Int’l
575 N.Y.S.2d
79 consistent but advocate in favor of the line broader extending coverage.9
As to Fleming, Appellants stress that purpose of the encourage communications, full and frank see —to note supra recognized 1—is in the opinions of all Justices. Further, Appellants infer from the opinion’s lead conclusion was waived that the Justices supporting affirmance, reversal, like those supporting privi- believed the lege pertained the first instance. See Brief for Appellants at 21 that the (explaining finding of waiver “begs question: waive?”). if there is no privilege, what is there to Appellants conclude with a request a clear articulation from this Court endorsing the broader approach to the privi- lege. Accord Brief for Amici Ass’n of Corporate Counsel, et (“Amici al. at 2 urge the Court reverse the Superior Court with a clear statement that communications made within the lawyer/client are relationship privileged when made for the advice.”). very purpose of or soliciting providing legal Several of amici Appellants’ focus on specifically privi- counsel, as it lege applies that, to in-house asserting given their proximity to the employer/client’s affairs, business they are uniquely subject to the intertwining of advice and confi- lines, dential information. Along these Energy Association of Pennsylvania the following offers observations: Winter, Appellants (citing 9. See Brief for at 13-14 Jack Inc. v. Koratron Co., 44, (N.D.Cal.1971); 54 Burlington F.R.D. 46 Corp., Indus. v. Exxon 26, (D.Md. 1974); Arkansas, 65 Byrd F.R.D. 326 Ark. (1996)); Reply S.W.2d Appellants Brief for (citing at 1-2 Health, L.P., (E.D.Pa. SEPTA v. CaremarkPCS 254 F.R.D. 2008)); Co., (3d see also In re Ford Motor 110 F.3d 965 n. 9 Cir.1997) ("[T]he entire discussion between a attorney client and an legal undertaken privileged, to secure advice is no matter whether the attorney speaking.”); client or the United States v. Amerada Hess (3d Cir.1980) Corp., ("Legal 619 F.2d opinion advice or from client, attorney an corporate, to his individual or consistently has been held the federal courts to be within the attorney- Sedat, DER, 29, 35, privilege.”); client Inc. v. 163 Pa.Cmwlth. (1994) ("It given by is well settled that advice an *13 professional capacity in response his in inquiry to a client is discovery immune from on the basis of the 4003.1.”). pursuant generally to Rule See (Third) Restatement of the Governing Lawyers §§ § 68-70 & 69 cmt. i. Law their business Association conduct Energy Members environments, on their they rely and regulated in highly legal depart- those in their own particularly counsel— statutes, and regulations in changes ments —to monitor of the law and then agency interpretations judicial and how changes about those corporate managers advise They rely to them. likewise on respond should corporations as monitors of lawyers ongoing in-house to serve their who lawyers regu- with the law. The corporate compliance members, especially the Association’s larly Energy serve are to a employees, exposed the counsel who are full-time of which (many stream of client communications continuous in the tradi- confidential client communications clearly are sense). only These client communications are not tional written, but are observational as well. A business oral and does so with the brings lawyer operations that a inside its will observe its so expectation lawyer operations, the that the can render advice without wait- lawyer proactively formal, request. Providing opportuni- for a discrete ing a form of client communication to ty for such observation is is, essence, standing request legal for lawyer advice, turn, lawyer’s necessarily based on advice. of client communications. totality lawyer’s necessarily To disclose the advice is to disclose something operation about the of the client’s business media, various lawyer through was communicated to lawyer’s observations. The disclo- including privileged communication, of the client’s either or infer- explicitly sure ren- entially, regardless occurs of whether that advice is to a client for response request dered discrete it guidance proactively or whether is rendered as a result standing the client’s invitation to its counsel observe and advise. Ass’n of Pa. at 1-2. Energy generally
Brief for Amicus (“The at 684 narrow Upjohn, scope U.S. S.Ct. attorney-client privilege by only court below not given attorneys it to formulate sound corporate makes difficult a specific legal problem advice when their client is faced with *14 corporate but also threatens to limit the valuable efforts of law.”). compliance counsel to ensure their client’s with the amicus, reliably to this confidential According relationship “[a] between counsel client is needed more than ever for companies operate good people to as the citizens the of the them to be.” Brief for expect Energy Commonwealth Amicus Ass’n of Pa. at 3. that,
Finally, argue several amici even if this Court were to legislative underlying discern a intent Section 5928 consistent Superior with the Court’s narrow to the approach privilege, 10(c) V, Pennsylvania Article Section of the allo Constitution cates the authority subject decisional on the to this Court. 10(c) V, § See Pa. Const. art. (investing Court with procedural rulemaking authority). initial
Appellee opens, jurisdiction, his statement of with the observation that this was taken as of appeal right under the collateral order doctrine. He then references the United Supreme States Court’s recent decision Mohawk Indus- — tries, -, Inc. Carpenter, U.S. 130 S.Ct. (2009),
L.Ed.2d 458
for the
proposition
interlocutory
review
appellate
does not extend as of
right
discovery
disputes centered on the assertion of the attorney-client privi-
at-,
lege. See id.
theOn
Appellee initially “agrees that
‘ad-
attorney
vice, analysis,
opinions’ is
if
privileged
confidential
and/or
client communications are intermixed.” Brief for
Appellee
stresses, however,
(at
10.10 He
that the common pleas court
Appellee regards
protection
derivative
afforded
judicially-created
"corollary
as a
doctrine.” Accord CaremarkPCS
Health, L.P.,
("The attorney-client privilege
According Appellee, strong policy concerns influenced the General to take a Assembly narrow to the codifica- approach tion of the attorney-client privilege, id. at including adverse impact on the of a truth-determining process broadly Indeed, applied privilege. asserts that Appellee public policy favors strict construction of all testimonial exclusionary privi- Ewiak, id. at 24 leges. (citing Ebner v. 335 Pa.Super. (1984) (“Testimonial exclusionary rules
and privileges contravene the fundamental principle that ‘the
public ... has a right
every
such,
man’s evidence.’
... As
they
strictly
must be
construed and accepted ‘only to the very
limited extent
permitting
a refusal to testify or excluding
relevant evidence has a public good
transcending
normally
predominant
all
principle
utilizing
rational means for ascer-
”
taining the truth.’
(quoting
States,
Trammel v. United
*16
40, 50,
906, 912,
U.S.
(1980))));
100 S.Ct.
As to Appellee draws from support Coregis con- tending that the decision had been displaced. Coregis, 186 (“Given 2 F.Supp.2d 570 n. that the Pennsylvania Supreme Court has never cited to Earle in the past years, 110 although having so, repeated opportunity to do and that legislature the in 1976 re-enacted the original attorney-client privilege stat- ute, Earle, which is plainly at odds with the court concludes or directly the by legislature overruled
that Earle was either silentio.”). In any sub Court Pennsylvania Supreme the recon event, legitimate not Earle as regard does Appellant statutory the with approach ciliation of a broad at 14 (highlighting Brief for Appellee treatment. See let alone the words the word ‘privilege,’ “does not use Earle ”); Coregis, F.Supp.2d ‘attorney-client privilege’ cf. §to predecessor (noting “[although n. 2 books, not cite to it and did not did already [Earle ] was on statute.”). interpret purport he which thus returns Section Appellee’s argument as follows: by Coregis, is appropriately encapsulated contends terms, with commu- the statute cloaks By very its not extend attorney the client to the but does nications from flowing full to those communications equal an one-sidedness apparent to the client. The lawyer from privilege is Pennsylvania statute on on but rather it is based oversight, not a matter of whim or policy judgments. sound omitted) (citations (emphasis at 569
Coregis, F.Supp.2d added). back to the points In this also regard, Appellee Slater, decisions, the privi- Maguigan, expressing Wood in the narrower terms. Accord Commonwealth lege (2005) Chmiel, (plurality, (“[T]he applies only to confidential part) relevant made the client to connec- communications services.”).12 provision tion with the that the broader matters discussed Finally, Appellee asserts briefs, faced coun- by corporate in the amicus such as issues sel, controversy pres- are not to the limited simply pertinent before the ently Court. Interlocutory Appeal Propriety
I. noted, be- initially highlights As the difference Appellee *17 of the collat- application, Pennsylvania, tween the prevailing Cross, 1216, Independence v. Blue 827 A.2d 1222 12. See also Gocial duPont, (Pa.Super.2003) (citing 730 A.2d Slater Commonwealth Hetzel, 747, A.2d 757 (Pa.Super.1999)); Commonwealth v. duPont). (Pa.Super.2003) (citing discovery requiring eral order doctrine to orders disclosure over the assertion of a and the federal privilege, approach, decision, the recent Mohawk which denies interlocutory under — Mohawk, review as of appellate right such orders. See at-, U.S. S.Ct. 609. Harris, 2009,
In Commonwealth v.
No. 8 EAP
this Court
recently
and entertained
requested briefing
argument on
of whether
question
adopt
we should
the Mohawk
approach
collateral
Pennsylvania
order review.
our resolution
Pending
case, however,
of the
in an
question
appropriate
decision
Ben v.
governs.
Schwartz
Since the Superior Court followed
Schwartz,
Ben v.
and this case was not
for further
accepted
doctrine,
consideration of the collateral order
we will proceed
to the
question,
merits
which has been ably argued by the
Times, L.P.,
and amici.
parties
Castellani v. Scranton
Cf.
283,
5,
(2008).
937,
292 n.
943 n. 5
Scope
Attorney-Client
II.
Privilege
of the
above,
As is apparent from the
Pennsylvania courts
have been inconsistent in
expressing
scope of the attorney-
client privilege.13 Presumably, the disharmony relates to the
ongoing tension between the
strong,
two
competing interests-
principle”
professional capacity
law.”);
relationship”).
different view.
dential
4003.1.”); Cohen,
(observing
cations
information between them.”
honored
lawyer and
Pa. at
("It
discovery
relegating
expressed
Opinion,
In
is well
86 encouragement
of-justice play namely—the factors — between and their lawyers trust and candid communication clients, accessibility of material see note and supra light In truth-determining process. evidence to further the conflict, are made on both sides very good arguments this concerning privilege’s appropriate generally breadth. See Giesel, Requirement M. Advice the Attor- Legal Grace Privilege: Special A Problem In-House Coun- ney-Client 48 Attorneys Representing Corporations, sel and Outside (1997) (“At time of least since the Mercer L.Rev. Bentham, raged a debate has about the benefits and Jeremy of the attorney-client privilege.”). burdens elsewhere, here and it is now all that Initially, recognized Moreover, it is protection. does afford derivative our own considered like that of the United States judgment, Court, that —if communication is to be facilitat- Supreme open range implicated. ed—a broader derivative is 394-95, at In this Upjohn, regard, U.S. S.Ct. agree recognized we with those courts which have the difficul- inty unraveling attorney input advice from client and stressed greater certainty encourage the need for the desired frank- See, id.; Indeed, ness. see also note 5. we believe e.g., supra imprudent general require it would be to establish a rule to likely the disclosure of communications which would not exist (at form) in their present participants’ least but for the was to remain understanding interchange private. acknowledge Appellee’s arguments We relative to Nevertheless, Section 5928. we do not find it clear that the Legislature necessary intended strict limits on the derivative B-21778, protection. Search Warrant 513 Pa. at Cf. (characterizing A.2d as a While, “broad privilege”). light brevity of Earle’s obscurity, relative reliance on the legislative presumption per (1 1922(4); § taining generally reenactments Pa.C.S. see 3) fiction, supra may note as somewhat of a Earle regarded with present dovetails our own assessment concerning Moreover, event, privilege’s proper any and in application. statutory frequently necessary, construction entails resort to legitimate, and expressly authorized about assumptions legis- lative purposes. dissent,
In his Justice McCaffery chastises us for legislat- ing, asserting clearer,” Section 5928 “could be hardly thus, that it contending inappropriate for us to refer to authorized presumptions concerning legislative intent. Dis- *19 92, 95-96,15 J.). senting at Opinion, A.3d at 63 (McCaffery, Nevertheless, this acknowledges: dissent “[although the stat- ute expressly only refers to communications made by client to or its attorney, appellate our courts have his/her consistently recognized the need a derivative to protect communications made an to a client to the extent are they based confidential upon initially facts disclosed the client attorney.” 93-94, to the Id. at 61; supra note 10 (reflecting Appellee’s of couching cf. derivative a judicially-created as “corollary doc- trine”).
Accordingly, the dissent
itself recognizes that
it
is not
to
possible
employ
and,
close literalism relative to Section 5928
time,
at the same
give effect to its purpose of facilitating open
communication in
is,
advice.
soliciting legal
therefore,
There
material ambiguity in the scope of the universally-recognized
(but
unstated)
legislatively
derivative protection, and we re-
our
gard
disagreement with the dissents as one
degree
reason,
rather than direction. For
that,
this
we also believe
determining the appropriate scope of this derivative protec-
tion, it is essential to consider the underlying purpose of the
privilege.
approach
Such
is consistent with logic and estab-
lished
principles
statutory construction.
In terms of those
we
purposes,
appreciate that client communications and attor-
ney advice are
intermixed,
often inextricably
and we are not of
the view that the Legislature
designed
statute to require
“surgical separations”
generate
the “inordinate practical
difficulties” which would flow from a strict approach to deriva-
tive protection. Spectrum Sys.
Int’l Corp., 575 N.Y.S.2d
We also with agree amici under the Pennsylvania Constitution, this Court does maintain a role beyond the mere construction of statutes in determining the appropriate scope our determination Presently, given privileges.14 testimonial to cabin our not manifested a desire Legislature
that the has to deter- involvement, opinion of this beyond scope it is branches respective on the of our power mine the limitations matters. relative to government areas, acknowledge possibil we Finally, as in other See, Abbate, Pamela J. Gregory C. Sisk & ity e.g., for abuses. Legal Privilege, Geo. J. Dynamic Attorney-Client (2010) abuse,” in the “ruse (discussing 230-35 Ethics disguised relating matters are as ordinary which business advice). least, believe the exist For the we present, limitations, including in camera ing practices, procedures, privilege, the boundaries ascribed to the judicial review and 8, are the essential provide see note sufficient supra checks.15 that, Pennsylvania,
We hold fashion confidential two-way protect privilege operates amici, Pennsyl- highlighted by promulgated the *20 14. As various this Court admissibility, governing well as the Rules of vania Rules of Evidence as scope discovery, establishing Civil Procedure the framework 101(b); rulemaking authority. Pa. procedural under its See Pa.R.E. R.Civ.P., Adoption Civil Procedure. of Rules of Indeed, arguments, Appellee accepts legitimacy the in his the work- product privilege Appellee in See Brief for reflected this Court’s rules. 4003.3). (citing at 23 Pa.R.Civ.P. No. example 15. Justice Eakin offers an of one abusive situation in Mr. disregards which a client-insurer counsel’s admonition that there is no legal deny Dissenting Opinion, a See 15 A.3d at basis claim. dissent, (Eakin, J.). According treating to the the advice as 59-60 privileged protect any does not client See id. disclosures. privilege in the context of bad-faith cerning such confidences may apply. lege, fraud is untruthful defense the insurer dissent. For Initially, Chang, Ins. No. 11 [9] circumstances exception Bad Faith (or, alternatively, we acting validity regarding question example, where a client supra and other submissions to Coverage in bad faith will be Allegations of defenses depending the dissent’s note 8. See the claim. risk revelation of what counsel approaches Bull. L. Versus an Insurer's invariably on variables not considered generally Moreover, litigation apparent premise courts, (Dec.2010) (discussing blatantly disregards deprived to waiver of the can be Lewis conduct). exceptions may apply of an advice-of-counsel crime-fraud separated Attorney-Client E. Hassett and that advice con- At a attorney-client actually the law and from client minimum, the crime- exception Cindy Privi- said). client-to-attorney or attorney-to-client communications made for the or purpose obtaining providing professional legal advice.16 reversed,
The order of the Superior Court the matter is remanded for further proceedings consistent with this opin- ion. CASTILLE, BAER,
Chief Justice Justices TODD and join ORIE MELVIN the opinion. EAKIN
Justice files a dissenting opinion.
Justice McCAFFERY files a dissenting opinion. EAKIN,
Justice dissenting. I cannot with the agree majority that the attorney-client with privilege applies equal force to attorney-to-client commu- nications as it does to client-to-attorney communications. Certainly derivative privilege equally protects those attor- ney-to-client communications- containing client-to-attorney communication,1 but where the communication contains no information at all client, from emanating and the eommuni- Contrary Appellee's argument, holding our does not obviate the product privilege. privilege, work attorney-client Such unlike privi- lege, necessarily does not involve communications with a client. See (exempting Pa.R.Civ.P. No. 4003.3 discovery from "disclosure of the conclusions, impressions party’s mental attorney summaries, of a or his or her memoranda, opinions, legal *21 confidential, prepared by anticipation litigation”). the of Sedat, But see (holding 163 Pa.Cmwlth. at A.2d "anticipation litigation prerequisite application of is not a to the product pertains product work doctrine as it attorneys to the work acting professional capacity.”). in their
Thus, privileges they while the overlap, two are not coterminous. 1. The trial court conducted an in camera review of all relevant docu- ments, and the documents now at issue do not contain information
emanating the from client. in a and separate the at issue legal rights
cation is relevant to action, it covered a blanket I would not find distinct privilege. 21,1997. injured January paid He had was
Appellee Gillard $200,000 in motorist for uninsured premiums appellants arbitration, full appellants the eve of offered coverage. On limits, offer at theretofore made no settlement policy having suit, alleges present led to the wherein Gillard delay all. This claim, the 11th refusal to honor the followed seven-year liability, of full shows a breach of acknowledgment hour to act in faith. duty good certainly thoughtful pronouncement my colleagues,
The well-reasoned, all communications privileged would make client, content, even when no regardless from counsel to the information from the client is revealed. Such an extension result, but I believe this easily applied the statute leads to an (whether not, true in case or for Suppose is too broad. this beyond we are a rule of announcing applicability present case), that there year that counsel advised client one claim, was no for or that legal denying underlying basis delaying payment. Suppose there was no basis for care; they they going client did not were not replied until were made to do so. The pay they reply privileged, significant policy by appel- for all the reasons advanced herein calling lants and amici. But what is the salience of counsel’s any It does not disclo- original warning privileged? protect made, sures the client and it denies evidence to the finder of significantly fact that bears on the claim of bad faith. to the faith claim includes One must assume defense bad predicated, an assertion the failure to offer settlement was part, legitimate legal least in on a belief that there was a basis If counsel’s was to the con- contesting payment. advice can still assert faith while this trary, appellants good hiding privilege? fact under a claim of evidentiary is a limited privi- lege, privileges exceptions evidentiary are to normal con- and rules: cepts *22 Testimonial exclusionary rules and contravene the privileges “
fundamental ‘the ... principle public right has a to ” such, every man’s evidence.’ As must they strictly (cid:127)construed and accepted “only very to the limited extent that a refusal to permitting testify or relevant evidence excluding has a public good transcending normally the predominant all principle utilizing rational means for ascertaining truth.” (2002)
Commonwealth
572 Pa.
Spetzer,
A.2d
States,
(quoting
40, 50,
Trammel v. United
445 U.S.
100 S.Ct.
(1980)) (internal
omitted).
I acknowledge arguments advanced for extending attorney-client privilege protect attorney-to-client communi- cations. It may be that the Court should expand attorney- Rule, client privilege by after publication comment, but we have not Alternatively, done so. it may be appropriate for the plain language, 2. Given the given statute’s and the narrow construction evidentiary privileges, agree I cannot Assembly the General intended provided to be § broader than for in majority upon relies our statement privilege " " privilege.’ Majority Op., is ‘broad (quoting 15 A.3d at 57 In B-21778, (1987)). re Search Warrant However, B-21778, in Search Warrant we also observed the "provides security that the information and facts revealed the client will not be seized and used others to his or her detriment.” In re B-21778, added). Search (emphasis Warrant at 428 While the case broad, holds it only. is broad in one direction Other- various concerns policy to consider these Assembly3 General statute, if deemed expansion craft an I must offer this dissent. Accordingly, appropriate. *23 McCAFFERY, dissenting. Justice majority the arguments, on Relying primarily policy-based Assembly into by not enacted the General reads a provision this statute. With attorney-client privilege Pennsylvania the view, has, acted in a decision, my legislative majority the therefore, I dissent. respectfully must capacity, in this as codified Common- attorney-client privilege clearer; “confi- applies it to hardly expressly could wealth his by her] made to [counsel] [or dential communications recently § stated the 42 5928. This Court client.” Pa.C.S. privilege: with to of this following regard application Pennsylva- been a of privilege part “The has Pennsylvania colony, of the founding nia law since the law.” In re Estate statutory has been codified our of Wood, 568, the (Pa.Super.2003).... 818 A.2d 571 While mandated, it has a statutorily is attorney-client privilege that must be satisfied in order to requirements number of the rule First and foremost trigger protections. its privilege applies only the to confidential communi- by in connection cations made the client to Rimar, legal provision of services. v. with the Slater (1975). Inc., 138, 584, Pa. 338 A.2d Chmiel, v. 585 Pa. 889 A.2d Commonwealth (2005) added); see also Commonwealth (plurality)1 (emphasis (in (1986) 511 A.2d Maguigan, Slater, case, for the again citing supra, another criminal that the proposition application wise, strictly privileges Spetzer, construed. are limited and must be 717. constitutionality § grant or 3. We did not allocatur on authority attorney- government had to delineate the which branch of arguments Assembly privilege; client amici's that the General lacked § authority limited set forth in 5928 are not to enact before us. participating joined majority Only justices of the six in Chmiel two however, justice disputed above-quoted opinion; no statement law. is “limited to confidential communications and disclosures by made the client to his advisor purpose advice”);2 obtaining professional his aid or The Birth Center Inc., (Pa.Su- v. The Companies, St. Paul that the per.1999) (recognizing attorney-client privilege “only bars discovery testimony or regarding confidential communi- cations made the client during representa- course therefore, holding, tion” and prepared by two letters St. Paul’s counsel were not protected by the because they contained no confidential communication from St. Paul to its attorney).
Although the statute expressly only refers to communica- tions made by the client attorney, or its our his/her appellate courts have consistently recognized the need for a derivative protect communications made an attorney to a client the extent that they are based upon *24 confidential initially facts by disclosed the client to the attor- ney. In re See Condemnation the by City Philadelphia, of (Pa.Cmwlth.2009) (“The 981 A.2d 396 attorney-client priv- ilege matters, in both applies criminal and civil to confiden- [ ] tial by communications made a client to his or her attorney connection with services by an to the attorney client when based confidential upon facts that the client has dis- closed.”); (Pa.Su- Hoffman, Slusaw v. (“In per.2004) addition to confidential communications which flow from a client to his or her attorney, we have held that the attorney-client privilege applies to confidential communica- tions which flow from an to his or her client to the extent the communications are based confidential upon facts that the client disclosed to the initially attorney.”).
Here, the majority ignores the text of the plain statute and decades of decisional law faithful to that statutory text to hold that the in a operates “two-way fashion” not only to protect communications, confidential client-to-attorney but Chmiel, recognize I supra supra, that both Maguigan, are criminal cases, and that the separate codified in is provisions for §§ criminal and civil matters. Pa.C.S. 5916 and However, respectively. provisions the text of the two all purposes relevant identical. re communications broadly attorney-to-client
also to protect facts disclosed confidential they implicate of whether gardless Co., 86-87, 15 A.3d Insurance at the client. v. by Gillard AIG words, the statute- majority the removes at 57-58. In other attorney-to-client communications based that requirement by made the initially communications upon based confidential attorney-client under protected to counsel in order to be client privilege. statute, the for this from departure
As
of the rationale
part
have been
Pennsylvania
courts
majority
the
concludes
“disharmony”
“express-
by
“inconsistent” and characterized
Gillard,
privilege.”
supra,
ing
scope
with this blanket
agree
I am also
strict limits on
intended
Legislature
it clear that the
“not find
under the
protection”
derivative
necessary
the
Gillard,
In general,
The
its
event, statutory
that “in
statutory
by asserting
any
text
frequently
necessary, legitimate,
construction
entails resort to
assumptions
legislative pur-
authorized
about
expressly
Gillard,
Finally, must that I emphasize do not dismiss the policy concerns, by amici, as raised Appellants and the various which have apparently majority convinced the that the Legislature did not intend for the attorney-client privilege statute to mean However, what it says. if many not most of these policy concerns are by addressed the work-product privilege, which provides as follows:
Subject provisions 4003.5, to the of Rules 4003.4 and a party may obtain discovery any matter discoverable under Rule 4003.1 even though prepared anticipation litigation or trial or for another or or party for that other party’s representative, including consultant, his or her attorney, indemnitor, surety, discovery insurer agent. or shall not include impressions disclosure of the mental of a party’s attorney conclusions, opinions, or his or her memoranda, summaries, legal notes or research or theories.... added).
Pa.R.Civ.P. 4003.3 (emphasis I agree with the majority beyond that it is the scope of the instant case to determine the precise breadth of the work- However, majority’s accept I cannot privilege.
product attorney-client privi- of the two-way reading assertion that its essentially render redun- totally encompass, does not lege dant, merely based on the latter’s work-product privilege anticipation prepared limited to materials application Gillard, I at 88 n. 15 A.3d at 58 n. litigation. supra, concerning an assertion undeveloped am loath to consider for a non- work-product support as scope textual, interpretation attorney-client privi- policy-based lege statute. reasons, firmly I but respectfully
For all of the above majority’s holding, dissent from the and would affirm *28 Superior order of the Court.