Attorney-client and work-product privileges are commonly viewed as sacrosanct. Whether as a matter of ethics, contract, or common law, these privileges—if violated—may inure to both attorney and client even collateral damage (for example, see the current Sandusky attorney disciplinary prosecutions).
A lawyer shall not reveal information relating to representation of a client unless the client gives informed consent … except to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client … upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer’s representation of the client.
Generally speaking, if germane to the attorney liability action a lawyer may ethically abrogate the privileges.
What Are the Privileges?
The traditional elements of the attorney-client privilege that identify communications that may be protected from disclosure and discovery are: the asserted holder of the privilege is or sought to become a client; the person to whom the communication was made is a member of the bar of a court, or his or her subordinate, and in connection with this communication is acting as a lawyer; the communication relates to a fact of which the attorney was informed by his client without the presence of strangers for the purpose of securing primarily either an opinion of law or legal services or assistance in some legal proceeding, and not for the purpose of committing a crime or tort; and the privilege has been claimed and not waived by the client, see Rhone-Poulenc Rorer v. Home Inventorship, 32 F.3d 851, 862 (C.A.3 1994). (internal citations omitted).
The attorney-client privilege may protect documents but not facts incorporated in the communication. Said differently, the privilege extends only to attorney-client communications and not the underlying facts.
A client may not be compelled to answer a question posed regarding communications to the attorney but may not invoke the attorney-client privilege to protect from disclosure of facts incorporated merely because that fact is part of an otherwise attorney-client privileged communication.
A client may waive the attorney-client privilege by asserting claims or defenses that put his attorney’s advice in issue in the litigation. For example, a client may waive the privilege as to certain communications with a lawyer by filing a malpractice claim against the lawyer. Likewise, a client waives the privilege when the client alleges as a defense that she was misled or otherwise relied upon the advice of counsel.
In sum, where the client has made the decision to place the advice of the attorney in issue that advice is not shielded by the attorney-client privilege.
Of course, a client may voluntarily waive the attorney-client privilege.
The work-product privilege provides broader protection than the attorney-client privilege. That is, confidential information flows between attorney and client in the attorney-client privileged context. By contrast, work-product privilege only applies to records that are the work-product of an attorney (or an attorney’s representative), as in Bagwell v. Pennsylvania Deptartment of Education, 103 A.3d 409, 415 (Pa. Cmwlth. 2014).
Discovery “shall not include disclosure of the mental impressions of a party’s attorney or his or her conclusions, opinions, memoranda, notes or summaries, legal research or legal theories.”
Unlike the attorney-client privilege (which is to foster a free-flow communication between client and attorney), the work-product privilege (or “doctrine” as it is sometimes known) is the need for attorneys to have privacy from opposing parties so that the attorney can analyze and prepare the client’s case.
Again, however, facts are not work-product privileged merely because they are incorporated by an attorney’s documentation. That is, the document may not be forced towards disclosure but the facts therein cannot form the basis of testimony not otherwise privileged.
Whether attorney-client or work-product privilege(s), those privileges are narrow and, in any event, effectively cast-aside by an adversary action involving counsel. While overbroad, waiver is the practical effect. Indeed, it may be either litigants’ (client v. attorney) ends to waive the privilege regardless.
There are questions which arguably remain unsettled:
- Is a client’s subsequent or predecessor counsel’s communications or documentations privileged?;
- Can a collateral matter (for example, a criminal or disciplinary proceeding) effect the privilege waiver in the related but separate legal malpractice context?; and
- Does selective or even inadvertent disclosure of otherwise privileged communications waive in whole?
Regardless of the answered or unanswered academics, practically the privileges regard the maxim of fidelity and communication. Once that maxim is disregarded the privilege(s) it seeks to covet is no more. Indeed, in the “I told you so” back-end-forth of the attorney-client disintegrated relationship generally renders the privilege forever abrogated in all respects.
Matthew B. Weisberg is the managing partner of Weisberg Law. He focuses his practice on consumer and individual rights throughout Pennsylvania and New Jersey. Weisberg Law represents victims of legal malpractice and other professional negligence resulting in financial injury, fraud, civil rights violations, consumer abuse and foreclosure actions.