A little more than a year ago I criticized the Pennsylvania Supreme Court (highest court) for its decision in the case of Nationwide v. Fleming, which effectively ruled the attorney-client privilege applies only to information given to the attorney by the client. Prior to the decision in Fleming, the statutory privilege had been broadly construed over time by Pennsylvania courts to encompass two-way communications between attorney and client – the way it should be. The expectation was that the Supreme Court would take the opportunity in Fleming to definitively expand the privilege (subject to some other exceptions/limitations). Instead, the Supreme Court’s ruling left the privilege completely in a state of limbo.
About six months ago I reported that the highest court in Pennsylvania heard argument in Gillard v. AIG, where the full court would be revisiting this critical issue. A slew of amici filers including the Philadelphia County, Allegheny County (Pittsburgh) and Pennsylvania Bar Associations weighed in, all in support of a broader application of the privilege that would protect all communications between attorney and client.
I am pleased to report the Supreme Court, in a 5-2 majority opinion in the Gillard case, has held that “in Pennsylvania, 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.” The majority agreed with other courts that have struggled with unraveling attorney advice from client input and have, in turn, stressed the need for greater certainty to foster frankness of communications between lawyers and their clients.
Thankfully, the court has finally given us some long-overdue clarity on this issue.
Supreme Court Justice Seamus McCaffery authored one of two dissenting opinions, criticizing the majority for “legislating from the bench.” Interestingly, Justice McCaffery (when he was previously a Superior Court Judge) authored the intermediate appellate court opinion in Fleming which the Gillard decision effectively overrules. With due respect to Justice McCaffery, I can’t agree with him on this one. The Pennsylvania Supreme Court is charged with the responsibility of regulating my conduct as a lawyer. Wouldn’t the privilege fall squarely within that responsibility?
(An interesting story about McCaffery: he originally gained fame in Philadelphia as "the Eagles Court judge," sentencing drunk Eagles fans in a makeshift courtroom in the bowels of the old Vet stadium. This tidbit is often cited among the criticisms of Philadelphia sports fans. This notoriety helped propel him to election to the Superior Court, and ultimately to the Supreme Court, where he now serves.)
