Ask anyone, lawyer or non-lawyer, what the attorney-client privilege is and you are likely to get the response: “anything a client says to his attorney is considered confidential.” Interestingly, until recently, the reverse was not true…some statements made to a client by his lawyer were not confidential, and may have had to be disclosed to the adverse side in a litigation matter.
In February 2011 the Pennsylvania Supreme Court, in Gillard v. AIG Insurance Co., 10 EAP 2010 (Pa. Feb. 23, 2011), ruled that the attorney-client privilege protects communications from client to attorney and attorney to client.
William Gillard (Gillard) alleged that AIG Insurance Company (AIG) acted in bad faith in the handling of his uninsured motorist claim. In the discovery phase of this litigation, Gillard sought production of all the documents from the file of the law firm that represented AIG in the underlying coverage matter. AIG withheld and redacted documents created by its law firm on the basis that these documents were protected by the attorney-client privilege. Gillard sought to compel these documents arguing that Pa. Cons. Stat. 59281 limits the attorney-client privilege to communications initiated by the client. Gillard argued that the General Assembly crafted the statutory language so that the attorney-client privilege serves as a one-way street and should be construed in such a fashion. Gillard also argued that a narrow construction of the privilege will minimize any interference in the truth-determining process. AIG argued that the attorney-client privilege is meant to allow open exchanges of relevant information between lawyers and their clients. Therefore, the attorney-client privilege should be a two-way street.
The Pennsylvania Supreme Court acknowledged the inconsistent applications of the attorney-client privilege by courts in the Commonwealth. The Pennsylvania Supreme Court also acknowledged the tension between two competing concepts—candid communications between lawyers and their clients, and the accessibility of information in the truth determining process. The Pennsylvania Supreme Court concluded 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.” In reaching this conclusion, the Pennsylvania Supreme Court found that there is difficulty in identifying attorney advice from client input and, therefore, the attorney-client privilege should protect communications no matter whether initiated by client or attorney.
1§ 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.