During Tuesday’s arguments of a case over whether the Pennsylvania Turnpike Commission is entitled to attorney-client privilege as a state agency, state Supreme Court Justice Debra Todd said a ruling in the negative would render attorneys working Pennsylvania government agencies "emasculated."

Matthew H. Haverstick, the Conrad O’Brien attorney representing the Turnpike Commission, agreed.

Though Haverstick acknowledged that Todd’s point stemmed from a public-policy argument he didn’t think the court needed to reach (he said the case "starts and stops" with the state statutes on attorney-client privilege and the Office of Attorney General’s powers), the attorney had this to say about an adverse ruling:

"Government lawyers are put in the untenable position of ‘should we advise our client or not?’"

James P. Barker of the OAG, which is currently using a grand jury to investigate the Turnpike Commission, represented the state.

For Barker, the case was no more complicated than this: The government cannot assert a privilege against itself.

Barker’s support came from the Commonwealth Attorneys Act’s "books and papers" provision, which states that the attorney general may access the documents of any government agency that are "necessary to carry out his [or her] duties under this act."

A grand jury investigation of a government agency, albeit it an independent government agency like the commission, was certainly among those duties, Barker said.

But the state’s lawyer was soon pressed by more than one justice of the court about whether his argument filtered into communications between the governor and the Office of General Counsel.

What if the OAG had used a grand jury in the context of the state’s privatization of the lottery, asked Justice Max Baer, referring to a deal Attorney General Kathleen Kane made headlines for challenging on constitutional grounds earlier this year. He asked, could communications between the governor and the state’s general counsel be compelled?

Barker conceded that’s where his argument was going.

Baer’s question came after Justice Thomas G. Saylor asked Barker if the OGC had offered a position on the issue in the instant case. And Saylor, who dissented over the court’s taking the case of In re Thirty-Third Statewide Investigating Grand Jury in the first place, was seemingly perplexed when Barker told him the OGC had not weighed in.

Haverstick, meanwhile, had just argued that if the Pennsylvania General Assembly had intended to grant the state’s top law enforcement agency "unfettered" access to government agencies’ communications, circumventing the attorney-client privilege, then it would not have used the word "necessary" in the books-and-papers provision of the CAA.

The inclusion of the word necessary, Haverstick said, was to make exceptions for laws like the attorney-client privilege, a legal concept Haverstick said has been "given renewed vitality and strength" under the recent high court ruling in Gillard v. AIG Insurance.

He urged the court to look no further than the language set forth in the statutes, both criminal and civil, on confidential communications to an attorney for support of his position. He opened his argument by noting those statutes did not come with exceptions, nor were they qualified.

Todd asked Haverstick if the Turnpike Commission was analogous to a corporation invoking the attorney-client privilege, and Haverstick said it was.

But Justice J. Michael Eakin challenged that theory, posing the question of whether a lawyer being paid by the government has a duty to act in the public interest.
"It’s all taxpayer money," Eakin said, making the communications different than those flowing between a corporation and its counsel. "Is that fair?"

He answered his own question before Haverstick could.

"Of course it’s fair. Is it true?"

The Thirty-Third Statewide Investigating Grand Jury case picks up where Chief Justice Ronald D. Castille left off in a dissenting opinion in November 2011, when Castille said the deeply split court in Pennsylvania Gaming Control Board v. Office of the Attorney General should have reviewed the issue.

"Because I do not believe that government agency officials should have to suffer incarceration as the price of securing judicial review of important and novel issues involving privilege under the circumstances presented here, I respectfully dissent from the court’s per curiam decision," Castille said in his dissent.

The chief justice said he would have granted review to determine whether the CAA authorizes the OAG to compel production of documents from state agencies without allowing for the agencies to assert attorney-client or work-product privileges.

As for the instant case, it remains unclear from the record why state prosecutors have been using a grand jury to look at the commission since 2009, beyond vague portrayals of the investigation from court documents that were unsealed when the justices granted review.

The judge overseeing the grand jury has said in court papers the OAG is asking grand jurors to investigate whether the commission, its commissioners and its employees violated any criminal statutes with regard to its employment practices, its procurement practices, and if it used commission resources to conduct political activities.

The commission had applied to file the appeal under seal, but the justices denied it in their one-page per curiam order granting allocatur.

Toward the end of Barker’s argument Tuesday, Castille asked the attorney if his position would be different for communications between the commission and outside legal counsel as opposed to its in-house attorneys.

Barker said there would be some instances where the OAG could nonetheless access the attorney communications, saying the "overriding interest is the public good."

"Well then, if I may, you have just emasculated all attorneys for the commonwealth," Todd responded.

Eakin then offered a hypothetical in which, under Barker’s argument, he seemed to think the OAG would be able to compel production of the communications.

"I sue the commission because my E-ZPass doesn’t work," Eakin started, not without thrusting his fist in the air at the mere thought of such a frustrating situation.

Todd rolled her eyes and threw her arms up in the air, saying her colleague was "drawing a connection between the civil and criminal sides" that she didn’t see a basis for drawing.

Ben Present can be contacted at 215-557-2315 or bpresent@alm.com. Follow him on Twitter @BPresentTLI. •