Question: Attorney-client privilege has been all over the news. But how does it work in Pennsylvania?
Answer: Less than 24 hours after federal agents raided the offices and home of his personal lawyer, President Trump asserted: “Attorney-client privilege is dead!” But it is not dead, at least not in Pennsylvania.
The basic rule
All agree that attorney-client privilege applies to confidential communications between an attorney and a client, or his representatives, made for the purpose of obtaining or rendering legal advice, and not in the furtherance of a crime or fraud. If the privilege applies to a communication, disclosure of that communication cannot be compelled.
The communication must be intended to be confidential. A communication between lawyer and client with other, unnecessary parties present is not privileged because the presence of the unnecessary third parties implies a lack of intent to have a confidential communication.
The basic attorney-client privilege protects client communications with the attorney. It also extends to responsive communications from the lawyer to the client. However, the communication need not be so overt as an oral or written action. On the contrary, the slightest action or inaction, such as an affirmative nod or complete silence, may constitute communication.
Succinctly stated, the attorney-client privilege protects from scrutiny or revelation the confidential communications of a client to his lawyer which are integral to the lawyer’s legal work for the client. The privilege does not apply to casual conversations between client and lawyer or if the lawyer is doing non-legal work or if the client is committing a crime, a fraud, a tort (a wrongful act for which a civil action will lie) or a regulatory violation and is consulting the lawyer about that.
Purpose of the attorney-client privilege
In a 2009 case, the U.S. Supreme Court wrote: “By assuring confidentiality, the privilege encourages clients to make full and frank disclosure to their attorneys, who are then better able to provide candid advice and effective representation. This, in turn, serves broader public interests in the observance of law and administration of justice.”
Classic question on law school exam
A friend approaches an attorney at a cocktail party and seeks legal advice. Is attorney-client privilege in play?
The ethics opinions are similarly full of examples of a would-be client insisting a law firm took his or her case, while the firm claims there were only conversations, not the creation of an attorney-client relationship.
The attorney-client relationship focuses upon the client’s reasonable belief that he or she is consulting a lawyer in his capacity as a lawyer, and his or her intent to seek professional legal advice. The formality of, say, a written agreement or invoice, is not an essential element in the employment of an attorney, though the attorney is encouraged to reduce the agreement to writing.
Written fee agreements – letters of engagement
Pennsylvania Disciplinary Rule of Professional Conduct 1.5(b) states in full: “When the lawyer has not regularly represented the client, the basis or rate of the fee shall be communicated to the client, in writing [emphasis added], before or within a reasonable time after commencing the representation.” In most cases, a “Letter of Engagement” is signed by both the lawyer and client. That “Letter of Engagement” protects lawyer and client in their future relationship. The client should always insist that there be a mutually consented to, in writing. “Letter of Engagement.”
Fox News senior judicial analyst Andrew Napolitano, former judge of the New Jersey Superior Court, has argued: “The attorney-client privilege requires a formal relationship reduced to writing for a specific legal purpose.”
Does the privilege extend to protect the identity of the client?
New York University law professor Stephen Gillers maintains that almost never is identity protected. In very rare circumstances, courts have protected identity; because, identity is not seen as a communication. And the privilege protects communications.
Indeed, attorneys have risked being held in contempt rather than disclose the identity of their clients. The privilege did not give them the legal right to refuse to disclose their client’s identity. But disclosure potentially would have violated an attorney’s ethical obligation of keeping his or her client’s identity.
Death of a client
When the client is an individual, the privilege survives the death of the client.
However, when the entity is a corporate entity, Pennsylvania Courts have held that the attorney-client privilege may not survive the “death” of the corporate client.
Final word
The Pennsylvania Supreme Court has declared that that the attorney-client privilege is a “two-way street.” The court held that the protections of the attorney-client privilege apply both to communications from an attorney to the client, as well as to communications from the client to the attorney.
Attorney-client privilege is alive and well in Pennsylvania.
To ask a legal question, email AskAttyBernie@timesonline.com or send mail to Ask Attorney Bernie, c/o Beaver County Times, 400 Fair Ave., Beaver, PA 15009.