In a very significant and much-anticipated decision, the Pennsylvania Supreme Court has ruled, 5-2, in Gillard v. AIG Ins. Co. that the attorney-client privilege in the Commonwealth “operates in a two-way fashion to protect confidential client-to-attorney or attorney-to-client communication made for the purpose of obtaining or providing professional legal advice.”
The attorney-client privilege in Pennsylvania has long been codified in a statute, 42 Pa.C.S. § 5928, which states as follows:
5928. Confidential communications to attorney
In a civil matter counsel shall not be competent or permitted to testify to confidential communications made to him by his client, nor shall the client be compelled to disclose the same, unless in either case this privilege is waived upon the trial by the client.
The Supreme Court acknowledged in its Gillard decision that “Pennsylvania courts have been inconsistent in expressing the scope of the attorney-client privilege.” Indeed, in 2007, the Pennsylvania Superior Court had ruled that the attorney-client privilege provides protection “only for confidential communications made by the client to counsel.” Nationwide Mutual Ins. Co. v. Fleming, 924 A.2d 1259, 1269 (Pa. Super. 2007), aff’d on other grounds by an equally divided court, 992 A.2d 65 (2010). The Nationwide decision had engendered considerable confusion and uncertainty as to the scope of the privilege, and it has now been overruled.
The Supreme Court stressed that in clarifying that the privilege runs in both directions, its decision will promote “the encouragement of trust and candid communication between lawyers and their clients.” The Court rejected a limitation of the privilege just to communications from client to attorney, and instead expressed agreement “with those courts which have recognized the difficulty in unraveling attorney advice from client input,” as “client communications and attorney advice are often inextricably intermixed.”