On Friday 1/29/10, the Pennsylvania Supreme Court (highest court) issued an opinion in the case of Nationwide v. Fleming affirming the decision of the Superior Court (intermediate appellate court), that ruled the attorney-client privilege applies only to information given to the attorney by the client.
The 2007 Superior Court decision (924 A.2d 1259) offered the following analysis:
"In sum, under our statutory and decisional law, attorney-client privilege protects from disclosure only those communications made by a client to his or her attorney which are confidential and made in connection with the providing of legal services or advice. The privilege extends to communications from an attorney to his or her client if and only if the communications fall within the general statutory definition. Consistent with this statute, the privilege protects confidential communications from an attorney to his or her client only to the extent that such communications contain and would thus reveal confidential communications from the client."
While the statutory privilege, as worded, is narrow, it has been broadly construed over time by the PA courts, such that the case law effectively swallowed the statute. The Supreme Court decision is not even on Lexis yet, so I can only go by what I'm reading in our local legal newspaper. The hope/expectation (including that of several amici groups) was that the Supreme Court would take this opportunity to expressly overrule the Superior Court holding, and definitively expand the privilege (subject to some other exceptions/limitations). As I understand it, the Supreme Court did not even touch the above issue, but rather focused its analysis on waiver.
Notably, the Superior Court judge (Seamus McCaffery) who authored the opinion originally gained fame in Philadelphia as "the Eagles Court judge," sentencing rowdy/drunk Eagles fans in a makeshift courtroom in the bowels of the old Vet stadium. This tidbit is often cited among the criticisms of Philadelphia sports fans. He used his notoriety to gain election to the Superior Court. More notably, however, he further used this notoriety to gain election to the Supreme Court, where he now serves. He (and 2 other Supreme Court judges) recused himself from this case, so only 4 out of the 7 elected judges of the highest court in Pennsylvania took part in deciding this issue of critical importance, and it appears they elected to punt (pun intended) on perhaps the most important issue.
I understand the appellant and amici may be seeking reargument. As an attorney who both practices and defends other attorneys in Pennsylvania, I find this decision extremely troubling. I welcome the thoughts of others in this group. Is anyone else as alarmed by this as I am? Has anyone heard of a similar ruling in other jurisdictions?