Clients, and lawyers who represent them, can breathe easier now that the Pennsylvania Supreme Court clarified, in Gillard v. AIG Insurance Company, that “the attorney-client privilege operates in a two-way fashion to protect confidential client-to-attorney or attorneyto- client communications made for the purpose of obtaining or providing professional legal advice.” No. 10 EAP 2010, slip op. at 23 (Pa. Feb. 23, 2011).
Gillard resolved confusion as to the scope of the attorney-client privilege in Pennsylvania by overruling the Superior Court’s so-called “one-way street” doctrine set forth in Nationwide Mut. Ins. Co. v. Fleming, 924 A.2d 1259 (Pa. Super. Ct. 2007), aff’d on other grounds by an equally divided court, 992 A.2d 65 (2010). Under that rejected doctrine, only those communications made by a client to his or her attorney could be protected by the attorneyclient privilege. Communications from an attorney to a client were left unprotected unless they contained (and thus would have revealed) confidential communications from a client to counsel.
The “one-way street” doctrine left draft opinion letters or other attorney generated communications containing legal advice vulnerable to disclosure in litigation when the connection to a specific client-to-lawyer communication may not have been facially apparent. Also vulnerable to disclosure were in-house lawyer communications to business clients, especially because such lawyers routinely and “proactively render advice without waiting for a formal, discrete request.” Gillard, No. 10 EAP 2010, slip op. at 13-14 (quoting Brief for Amicus Energy Ass’n of Pa. at 1-2).
In rejecting Fleming, the high court sided with observers who insisted: “To disclose [a] lawyer’s advice is necessarily to disclose something about the operation of the client’s business.” Id. at 14 (quoting Brief for Amicus Energy Ass’n of Pa. at 1-2). The court was convinced that “unraveling attorney advice from client input” is simply too difficult and resource intensive to justify the one-way street doctrine; it concluded that a more robust attorney-client privilege would produce more predictable results, thereby better serving the privilege’s purpose of promoting frank dialogue between client and counsel. Id. at 20. The decision aligns Pennsylvania’s attorney-client privilege doctrine with the majority of states and represents a significant victory for the business community and defense bar.