Client identities do not enjoy blanket attorney-client privilege protection under Pennsylvania’s Right-to-Know Law, the state Supreme Court has ruled.
The court set a fact-specific standard in determining that client identities are typically not privileged unless they would be coupled with information about what type of work the attorney has done on behalf of the client that, when disclosed together, would essentially disclose attorney-client communications. The Supreme Court determined, however, that previous disclosure that the attorney is representing a client in a grand jury investigation is not enough to protect the identity of the client.
The case stems from a Right-to-Know Law request by Associated Press reporter Marc Levy for legal bills related to the Senate’s hiring of attorneys to represent former state Senator Robert J. Mellow and other Democratic caucus employees. The Senate had argued the names of the clients and the descriptions of the services the attorneys provided them were protected by the attorney-client privilege.
Levy had argued the RTKL was intended to provide transparency in whether the government was spending taxpayer money lawfully. He said redacting the names of clients from bills along with descriptions of the services provided them rendered such a determination impossible, according to the majority opinion written by Justice Max Baer.
"Consistently with many of our sister courts, we hold that, while a client’s identity is generally not privileged, the attorney-client privilege may apply in cases where divulging the client’s identity would disclose either the legal advice given or the confidential communications provided," Baer said.
To clarify some confusion about the lower court’s ruling in this case, Baer emphasized the court applied this exception to both criminal and civil cases.
"Application of the exception however, will involve case-specific determinations of whether revealing the otherwise nonprivileged identity will result in the disclosure of privileged information based upon what has been previously disclosed," Baer said.
The Supreme Court also addressed the issue of whether descriptions of legal services are privileged. Baer said at the outset of his opinion that general descriptions of legal services included in attorney invoices are not privileged, while specific descriptions that would reveal attorney-client communications are protected.
Later in his opinion, Baer dismissed the Senate’s argument that the Commonwealth Court had issued a bright-line rule finding legal descriptions were not protected. Rather, Baer said, the court and special master did a line-by-line analysis of the invoices and redacted those descriptions it felt were privileged. The relevant question, Baer said, was whether the descriptions would result in disclosure of information otherwise protected by attorney-client privilege.
"For example, descriptions of legal services that address the client’s motive for seeking counsel, legal advice, strategy or other confidential communications are undeniably protected under the attorney-client privilege," Baer said. "In contrast, an entry that generically states that counsel made a telephone call for a specific amount of time to the client is not information protected by the attorney-client privilege, but, instead, is subject to disclosure under the specific provisions of the RTKL."
Aside from the issues of attorney-client privilege, the court also addressed whether a state agency waives any reasons for denying access to information if it doesn’t raise those issues in its initial written denial of an RTKL request.
In Levy v. Senate of Pennsylvania, the Senate initially denied Levy’s request based solely on the attorney-client privilege argument. But in subsequent filings with the Senate appeals officer, the Senate also argued for nondisclosure based on the attorney-client work product doctrine, grand jury secrecy and the criminal investigation exception outlined in the RTKL.
The Commonwealth Court found the Senate waived those issues for failure to include them in its initial denial letter to Levy. The court based its ruling on its 2010 decision in SignatureInformation Solutions v. Aston Township.
In Signature Information, the Commonwealth Court ruled the RTKL does not allow an agency that has given a specific reason for denying a request to assert a different reason on appeal.
The Senate argued in Levy that the RTKL does not require all the specific reasons for denial to be included in the initial denial letter. Levy and amicus filer Trib Total Media argued the need for expedient access to public information undercuts the Senate’s argument.
Baer said both sides had meritorious arguments when reading the specific language of the various sections of the RTKL that applied so the court had to look beyond the statute’s language to other evidence of legislative intent. Ultimately, the court concluded there was no prejudice to the requester for the agency to assert at the appeals stage additional reasons for the denial.
Through its ruling in Levy, Baer said the court was reversing Signature Information as "unnecessarily restrictive."
Chief Justice Ronald D. Castille and Justices Thomas G. Saylor and Seamus P. McCaffery joined Baer in the majority. Justice J. Michael Eakin wrote a concurring opinion joined by Justice Debra M. Todd.
Eakin said he agreed with the majority’s conclusions, but would have reversed Signature Information based on the language of the RTKL rather than finding the law ambiguous on the issue.
Gayle C. Sproul of Levine Sullivan Koch & Schulz represented Levy.
"We are very pleased that the Supreme Court held that client identities are not generally privileged in the commonwealth and that there is no blanket privilege for legal invoices," Sproul said. "That is the single principle that the AP has fought for from the outset of this case. We are sorry to see the Signature Information waiver rule go. Under the scheme of the Right-to-Know Law, we believe that was a fair and appropriate rule, but we appreciate the close consideration the court gave to that issue."
Matthew Haverstick of Conrad O’Brien represented the Senate. He said the court got it right in recognizing attorney-client privilege can protect certain information on legal bills. As for the redacted information regarding legal services, the Senate simply wanted certainty from the court on what was privileged and what was not. He said his client feels like it has that now.
The biggest win for the Senate, Haverstick said, was the reversal of the Signature Information case. Now, all of the privilege issues the Commonwealth Court found the Senate to have waived are back in play and could still serve to bar disclosure of the client identities, Haverstick said.
(Copies of the 38-page opinion in Levy v. Senate of Pennsylvania, PICS No. 13-0994, are available from The Legal Intelligencer. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.) •