Otis Elevator Co.’s communications with its distributor in Aruba, Caribbean Elevator, can remain confidential, a federal judge has ruled, because attorney-client privilege attaches to the third party.
The plaintiffs in a case stemming from an elevator accident at a Marriott hotel in Aruba that allegedly caused Christopher Werder to suffer a rotator cuff injury sought to compel Otis to produce communications it had with Caribbean Elevator.
But U.S. District Judge David Stewart Cercone of the Western District of Pennsylvania ruled that the communications were privileged because Caribbean Elevator “reasonably” believed that counsel for Otis was also representing its interests.
“In addition to a traditional attorney-client communication, courts have determined that a communication is protected if the client reasonably believes it is communicating with a lawyer in an effort to obtain legal advice,” Cercone said in Werder v. Marriott International.
When Otis claimed attorney-client privilege to deny access to the communications, the plaintiffs objected, but Cercone found the objection to be “misplaced.”
He listed the three criteria for attorney-client privilege to apply under Pennsylvania law, including “(1) the information for which the protection is sought was a communication from a client to an attorney, or from an attorney to a client; (2) the communication was kept confidential; and (3) the communication was made for the purpose of obtaining or providing legal advice.”
Beyond that, Cercone said, communications are also protected if a party “reasonably believes” it is in contact with a lawyer representing its interests, as did Caribbean Elevator.
Philadelphia legal observers weren’t surprised by the ruling.
“The whole idea of attorney-client privilege is to protect the client,” said Lawrence Fox of Drinker Biddle & Reath, who comments frequently on ethics issues.
He said under some circumstances courts will grant the benefit of that protection if the client was under the impression that he was talking to a lawyer representing him.
Abraham Reich of Fox Rothschild agreed.
The attorney-client relationship is based on fact, he said, so the judge can make a factual determination about whether or not the privilege should apply. The expectation held by the parties involved, like Caribbean Elevator’s expectation that it was represented by Otis’ counsel, is a reasonable thing for the judge to base his determination on, Reich said.
Fox has been published on the topic of professional responsibility for lawyers and teaches the subject at Yale Law School. Reich has served as an expert witness on professional responsibility and teaches a course on ethics at the University of Pennsylvania School of Law.
Similarly, Cercone held that the plaintiffs’ argument to get at the communications by asserting that Otis had waived its work-product protection was “wide off the mark.”
He noted that the work-product doctrine serves well the adversary system because it allows lawyers to prepare cases on behalf of their clients without the fear that their work will be used against them.
“Defendant Otis’ counsel’s characterization of the attendant circumstances of their initial investigation, specifically regarding the mistaken attorney-client relationship between defendant Otis’ counsel and Caribbean Elevators, is not a disclosure sufficient to waive the work-product protection,” Cercone said.
Jason Archinaco of Archinaco Bracken in Pittsburgh represented Werder and declined to comment on the judge’s opinion in the ongoing case.
Christine Boyd of Lavin, O’Neil, Ricci, Cedrone & DiSipio in Philadelphia represented Otis and said, “It is our position that the opinion speaks for itself.”
(Copies of the five-page opinion in Werder v. Marriott International, PICS No. 12-1839, are available from The Legal Intelligencer. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.) •