Attorney-Client Privilege Put to the Test

Although many attorneys may hate to admit it, the attorney-client privilege has its limitations. Of course, this long-standing privilege protects confidential communications made by a client to her attorney for the purpose of seeking legal advice.  By protecting these confidential communications, clients are encouraged to disclose all pertinent information to their attorneys. Particularly in the private sector, the attorney-client privilege enjoys wide latitude.  However, a recent Pennsylvania Supreme Court decision suggests that the issue of whether the privilege extends to government entities and the attorneys who represent them is a more challenging issue for courts.

In In re Thirty-Third Statewide Investigating Grand Jury, the Pennsylvania Supreme Court considered whether the attorney client privilege could be invoked by a state agency during a statewide criminal grand jury investigation.  The attorney general issued subpoenas to the agency and third parties to produce documents, which implicated more than 140,000 pages of material.  In response to the subpoena, the agency invoked the attorney-client privilege with regard to certain documents.  The attorney general objected, claiming that it should have unfettered access to all requested items.  The supervising judge of the grand jury agreed and filed an opinion holding that the attorney-client privilege did not apply to documents sought from a state agency during a grand jury subpoena and denied the state agency’s request for a protective order.

On appeal, the Pennsylvania Supreme Court agreed.  The Court noted that the attorney-client privilege is deeply rooted in the common law, and that the privilege is now codified in several state statutes.  However, the Court noted that the privilege is not absolute, and that an attorney’s ethical responsibilities require fidelity to the court and to the greater interests of justice, in addition to the client.  With these limitations in mind, the Court determined that the privilege must be analyzed more narrowly when the client is a government agency, as opposed to the private sector because the public is ultimately the client of the state-paid lawyer’s counseling the troubled agency.  The court thus concluded that the documents from the state agency were not protected by the attorney client privilege in the context of the grand jury subpoena. 

Attorneys and other professionals must be aware of the limitations of privileges and other protections that ordinarily would protect communications between client and counsel.  Failure to anticipate these limitations may result in unintended disclosures that could lead to liability for the client and professional, alike.

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