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May 04, 2010

Philadelphia Bar Association to File Amicus Brief in Pennsylvania Supreme Court Case Concerning Attorney-Client Privilege

The Philadelphia Bar Association's Board of Governors has unanimously approved the filing of an amicus brief urging the Pennsylvania Supreme Court to reverse the Superior Court's decision in Gillard v. AIG Insurance Company.

In Gillard, the Pennsylvania Superior Court affirmed an order of the Court of Common Pleas that required appellants to produce communications containing their outside counsel's legal advice, analysis and opinions, holding that these documents were not protected by the attorney-client privilege because they were communications made by an attorney to a client.

The Superior Court cited its 2007 decision in Nationwide Mutual Insurance Co. v. Fleming as precedent, which held that the privilege protects communications from an attorney to a client only to the extent such communications contain and would thus reveal confidential communications from the client. That case was appealed to the Pennsylvania Supreme Court, which issued an evenly split decision resulting in the affirmation of the Superior Court's holding. In that appeal, the Bar Association filed an amicus brief arguing for reversal of the decision.

The Gillard case provides an opportunity to reverse the law created by the Fleming case. If not reversed, there will continue to be significant limitations on the protection of the attorney-client privilege afforded to lawyers practicing in Pennsylvania and their clients seeking confidential legal advice.

Arguing that the attorney-client privilege is socially beneficial and critical to our system of justice, the Gillard amicus brief states: "It is impossible for communications providing legal advice not to reveal, implicitly or explicitly, client confidences exchanged during the course of the professional relationship. As a result, the Superior Court's Opinion is inconsistent with the fundamental purpose of the attorney-client privilege of facilitating the highest quality legal representation and candid legal consultation."

The brief cites the position taken by the American Law Institute's Restatement of the Law Governing Lawyers that "the attorney-client privilege protects all communications between attorneys and their clients for the purpose of obtaining or providing legal advice, regardless of the content of the communications."

"The Superior Court's Opinion, and its opinion in Fleming, are unjustified and dangerous restrictions on the traditional scope of the attorney-client privilege," the brief reads. "[By ruling as it did in Gillard], the Superior Court has made Pennsylvania an outlier jurisdiction on this important issue."

The Association of Corporate Counsel, the Pennsylvania Bar Association, the Allegheny County Bar Association, and the Chamber of Commerce of the United States of America joined the Philadelphia Bar Association in filing the brief.

Click here to read the amicus brief in its entirety.

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