The Supreme Court of Pennsylvania has agreed to hear a case of vital important to insurers and defense counsel, and their ability to defend claims against insureds. On March 16, 2010, the Supreme Court of Pennsylvania allowed the appeal of Gillard v. AIG Insurance, 947 A2d 836 (2008). In the trial court decision, 2007 Phila. Ct. Com. Pl. LEXIS 159, which was affirmed by the Superior Court without opinion, it was held that communications from defense counsel to the client’s claims representatives were not privileged.
In a relatively short decision, the trial court held that Pennsylvania’s attorney-client privilege statute, 42 Pa.C.S. 5928, applies only to communications from the client to counsel, noting “[t]he policy reasons for the protection of confidential communication flowing from the client to the attorney do not exist in reserve as legal counsel cannot provide a client with confidential information for the purposes of securing legal advice.”
In accepting the appeal, the Supreme Court paraphrased the issues:
a. Whether the attorney-client privilege applies to communications from the attorney to the client;
b. Whether the Superior Court erred in holding the attorney-client privilege applies only to confidential communications from the client to the attorney, pursuant to Nationwide Mutual Insurance v. Fleming, 924 A2d 1259 (Pa. Super. 2007).
The Gillard case will be the Supreme Court’s second recent foray into this important area. In Nationwide Mutual Ins. Co. v. Fleming, 2010 Pa. LEXIS 40 (January 29, 2010), an evenly split court essentially affirmed a Superior Court decision holding that the privilege applies only to communications made by the client. Only four judges were available to address the Fleming case, and the panel ended up evenly split. Justices Eakin and Baer voted to affirm, and Justices Saylor and Castille supported reversal. Under the applicable Pennsylvania rule, in such a circumstance, the Superior Court’s decision was deemed affirmed. A reading of the opinions accompanying the opinion, however, indicates that no one on the panel accepted the proposition that attorney-client privilege only applies one way.
In his opinion supporting the affirmance of the Superior Court’s decision in Fleming, 924 A2d 1259 (Pa. Super. 2007), Justice Eakin determined that the insurer was required to turn over the documents because it had waived the privilege regarding that particular document, rather than a general rule about privilege. Essentially, Justice Eakin reasoned that because the insurer had voluntarily turned over documents addressing the same information, the privilege was waived. He declined to address the issue of whether privilege was a one-way street. Justice Saylor, on the other hand, found both that no waiver existed, and also advocated that the attorney-client privilege was to be applied broadly due to the “unavoidable intertwining of each communication and responsive advice.” Notably, it appears that the “work product” privilege was not invoked in either case.
For a copy of the Gillard decision click here
Cases provided courtesy of Lexis.
Sarah Delaney and Joanna Roberto