Wednesday, March 17, 2010

Pennsylvania Supreme Court Agrees to Hear Important Attorney-Client Privilege Issue - Again

In an Order handed down yesterday, March 16, 2010, the Pennsylvania Supreme Court granted allocatur in the case of Gillard v. AIG Insurance Company, et al., 72 EAL 2008 (Pa. 2010) to address two issues of importance to civil litigators:

(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 Company v. Fleming, 924 A.2d 1259 (Pa.Super. 2007).

It will be interesting to see how this one plays out. At first glance, it appears academic that communications from the attorney to the client should also be considered privileged--but you never know.

You may recall that I recently reported here ( that, on January 29, 2010, the Pennsylvania Supreme Court issued a 2-2 per curiam split decision in the attorney-client privilege case of Nationwide Mut. Ins. Co. v. Fleming, 2010 WL 336171, No. 32 WAP 2007 (Pa. 2010). Only four Justices took part in the decision because Justices Debra M. Todd and Seamus McCaffery had to recuse themselves, having sat in on the same case when they were previously on the Superior Court. The Court was also down a Justice at the time this case was considered because of a retirement.

Justices J. Michael Eakin and Max Baer voted to affirm the Superior Court's decision and Justices Saylor and Chief Justice Castille voted to reverse. Under the rules of the Court, the 2-2 split means that the Superior Court decision on the attorney-client privilege issue was affirmed.

The Superior Court in Fleming ruled that the privilege only protects confidential communications from a client to an attorney in connection to the providing of legal services. That is, the Superior Court decision appears to stand for the proposition that the attorney-client privilege only applies to information given to the attorney by the client and not the other way around.

As stated, the split decision of the Supreme Court in Fleming leaves this as the law of the land currently. Let's see what the Gillard Court does with the issue.

Thanks to Attorney James Beck of the Philadelphia office of the Dechert Law Firm for bringing this case to my attention. Check out his Drug and Device Law blog at

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