In 2007, the Superior Court of Pennsylvania dealt a body blow to the attorney-client privilege when it concluded that a memorandum by an in-house lawyer to the senior members of an insurance company was not protected from disclosure by the attorney-client privilege because it did not involve a confidential communication from the client to the lawyer. Nationwide Mutual Insurance Company v. Fleming, 207 Pa.Super. 145 (2007).
The ruling was premised on a narrow view of the statutory codification of the privilege. It left counsel scratching their heads on how they could protect communications with their clients. The ruling was ultimately affirmed because Supreme Court of Pennsylvania evenly split on how to decide the issue.
In 2011, concerns were alleviated when the Supreme Court rejected the notion that the privilege only flowed one-way from the client to the lawyer. In Gillard v. AIG Insurance Company, 609 Pa. 65 (2011), the Court held that in Pennsylvania the attorney-client communication 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 legal advice.
So what is the problem? The dissent in Gillard by Justice Eakin. In Justice Eakin’s dissent, he discusses a hypothetical lawyer who advises his client that there are no legitimate defenses to a claim and suggests that such a communication would not be privileged considering its content does not reveal any client information.
While we can debate the merits of the conclusion, the point that practicing lawyers need to heed is that, notwithstanding the scope of the privilege as it is understood and your best efforts to protect your client communications, there is always a chance that a court could review your communication and decide that it is not worthy of protection. Beyond that, to the extend that your representation ever becomes the subject of litigation – for example, in a subsequent malpractice action – your communications may be revealed.
So, be mindful of the fact that, when you write or e-mail, you are creating a record. When communicating with your clients, your communications should have the look and feel of legal advice – even when your client’s communications to you may be less than polished. When that subpoena arrives, you’ll be glad that you did.