ATTORNEY-CLIENT PRIVILEGE IN ESTATE PLANNING, ADMINISTRATION AND LITIGATION Hon. Anne E. Lazarus Judge of the Superior Court of Pennsylvania Adam T. Gusdorff, Esq. Heckscher Teillon Terrill & Sager, P.C. 1 Jennifer DiVeterano Gayle, Esq. Mannion Prior, LLP THE ATTORNEY-CLIENT PRIVILEGE In Pennsylvania, the attorney-client privilege is statutory: In a civil matter counsel shall not be competent or permitted to testify to confidential communications made to him by his client, nor shall the client be compelled to disclosed the same, unless in either case the privilege is waived upon the trial by the client. 20 Pa. C.S.A. § 5928. 2 GENERAL PRINCIPLES The attorney-client privilege operates in a two- way fashion, protecting all: confidential client-to-attorney communications and confidential attorney-to-client communications made for the purpose of obtaining or providing professional legal advice. Gillard v. AIG Ins. Co., 15 A.3d 44, 59 (Pa. 2011). The privilege is not affected by the Pennsylvania Rules of Evidence. 3 RATIONALE AND PURPOSE The attorney-client Rather, the purpose of privilege is not concerned the attorney-client with: privilege is: prejudice; to foster a confidence the ascertainment of the between client and truth; or attorney that will “lead to a trusting and open the reliability of attorney- attorney-client dialogue.” client communications. “The aim of the attorney-client privilege is ‘to encourage full and frank communication between attorneys and clients thereby promoting broader public interests in the observance of law and administration of justice.’” U.S. v. Jicarilla Apache Nation, 564 U.S. 162, 169 (2011) (quoting 4 Upjohn Co. v. U.S., 449 U.S. 383, 389 (1981)) PRIVILEGE DISTINGUISHED FROM CONFIDENTIALITY Duty of Confidentiality under Pa. R.P.C. 1.6: Broader than attorney-client privilege Not substantive law Applies in situations other than where evidence sought from attorney through compulsion of law “Derivative” duties of counsel to beneficiaries under Pew Trust: Prohibit attorney from taking advantage of position to detriment of fiduciary estate or beneficiaries May require attorney to take affirmative action to protect interests of beneficiaries 5 PRIVILEGE DISTINGUISHED FROM WORK PRODUCT DOCTRINE Work Product Doctrine under Pa. R.C.P. 4003.3: Broader than attorney-client privilege Protects the mental impressions of a party’s attorney and his or her conclusions, opinions, memoranda, notes or summaries, legal research or legal theories. Protects the mental impressions of the attorneys’ agent and his or her conclusions or opinions respecting the value or merit of a claim or defense or respecting strategy or tactics. Belongs to the attorney, not the client But, the client may waive the work product doctrine by invoking a good faith reliance on advice of counsel defense. 6 THE BASICS The client holds the privilege and has the right to assert it. Four elements must be met to invoke the attorney- client privilege: 1. The person asserting the privilege is, or seeks to be, a client; 2. The communication is between the person and an attorney, or the attorney’s subordinate; 3. The communication relates to a fact of which the attorney was informed by the client, without the presence of strangers, for the purpose of seeking legal advice, and not for the purpose of committing a crime or tort; and 4. The privilege has been claimed and is not waived by the client. 7 GREGURY V. GREGURAS The attorney-client privilege may not be used as a shield during discovery, then waived at trial. “An eleventh-hour waiver has considerable potential to create unfair surprise and prejudice to the other party, and it is the role of the trial court to prevent it by reasonable means.” 196 A.3d 619 (Pa. Super. 2018) (en banc), app. den. 205 A.3d 1230 (Pa. 2019) 8 THE BASICS, CONTINUED The attorney-client privilege survives: the termination of the attorney-client relationship; and the death of the client. However, death “substantially reduces” the possibility that the client’s rights and interests could be significantly affected by disclosure of the confidential communications.” Cohen v. Jenkintown Cab. Co., 357 A.2d 689, 693 (Pa. Super. 1976). 9 THE JOINT CLIENT PRIVILEGE The joint client privilege applies when multiple clients hire the same attorney to represent them on matters of common interest. A communication of either co-client that otherwise qualifies as privileged and relates to matters of common interest is privileged as against third parties. The communications are not privileged as between co-clients. The joint client privilege may only be waived by the consent of all joint clients. 10 REPRESENTATION OF MULTIPLE CLIENTS Rule 1.7(a). Conflict of Interest: Current Clients A lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if: the representation of one client will be directly adverse to another client; or there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person, or by a personal interest of the lawyer. 11 REPRESENTATION OF MULTIPLE CLIENTS Rule 1.7(b). Conflict of Interest: Current Clients Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if: the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client; the representation is not prohibited by law; the representation does not involve the assertion of a claim by one client against the other client in the same litigation; and each affected client gives informed consent. 12 THE JOINT DEFENSE DOCTRINE The joint defense doctrine extends the attorney- client privilege to a group of two or more clients who have retained separate counsel when each has a common interest in the litigation. The joint defense privilege protects communications between an individual and an attorney for another party if they form “part of an on-going and joint effort to set up a common defense strategy.” 13 THE JOINT DEFENSE DOCTRINE There are four factors for the privilege to apply: 1. the parties’ agreement; 2. a common interest in the litigation or jointly shared litigation strategy; 3. the communications were made pursuant to such agreement; and 4. the continued confidentiality of the communication. Pennsylvania Public Utility Comm’n v. Sunrise Energy, LLC, 177 A.3d 438 (Pa. Commw. 2018). A written agreement is not necessary. 14 PROCEDURAL ISSUES Pennsylvania law imposes a shifting burden of proof in disputes over disclosure of communications allegedly protected by the attorney-client privilege. The party invoking a privilege must initially set forth facts showing that the privilege has been property invoked. The burden then shifts to the party seeking disclosure to set forth facts showing that disclosure will not violate the attorney-client privilege. 15 PROCEDURAL ISSUES During discovery: Generally, a discovery order is not immediately appealable. However, a court order requiring disclosure of privileged material is immediately appealable as a collateral order under Pa. R.A.P. 313 as: the order is separable from and collateral to the main cause of action; the right involved is too important to be denied review; and the question presented is such that if review is postponed until final judgment in the case, the claim will be irreparably lost. 16 PROCEDURAL ISSUES At trial: The court may not hear testimony or accept evidence subject to a later ruling on an objection based upon the attorney-client privilege. The statute proscribes “not only giving evidentiary consideration to confidential communications, but also their very disclosure.” Estate of Kofsky, 409 A.2d 1358, 1362 (Pa. 1979). 17 WAIVER OF THE ATTORNEY-CLIENT PRIVILEGE The attorney client privilege may be waived by: The client’s own act Disclosure to third party Failing to object at the Trial Court level Inadvertent disclosure in discovery When the client puts the advice at issue: Subsequent adversarial proceeding between the client and counsel; or Client raises good faith reliance on advice of counsel as an affirmative defense in litigation. 18 THE TESTAMENTARY EXCEPTION United State Supreme Court recognized a “testamentary exception” for over a century: [I]n a suit between devisees under a will, statements made by the deceased to counsel respecting the execution of the will, or other similar document, are not privileged. Glover v. Patten, 165 U.S. 394, 406 (1897). 19 THE TESTAMENTARY EXCEPTION Theavos Estate, 30 Fiduc. Rep. 2d 140 (O.C. Centre 2010) Recognized the “testamentary exception” for the first time in Pennsylvania, finding that such an exception “furthers the client’s intent.” Concluded that such exception is proper where “deceased holder of attorney-client privilege is suspected of having been unduly influenced to change the planned disposition of his estate after his death.” Acknowledged that the documentation sought may eliminate or affirm the caveator’s/contestant’s suspicions. 20 THE TESTAMENTARY EXCEPTION Hughes Estate, 8 Fiduc. Rep. 3d 169 (O.C. Cumb 2018) Granted petition of putative beneficiary seeking waiver of attorney-client privilege, as “there is no doubt that the interests of justice would be frustrated by an exercise of the attorney-client privilege.” 21 THE TESTAMENTARY EXCEPTION Fasick Estate, 3 Fiduc. Rep. 3d 89 (O.C. Cumb. 2012) Petition to obtain copies of prior Wills under which charity believed it would receive larger share of estate granted. Court analogized the petition to one for pre-complaint discovery, and held that it would be inequitable to require the charity to file “a premature will contest before it has access to the predicate documents necessary to maintain such an action.” Concluded that testamentary exception to attorney- client privilege “renders the prior wills discoverable.” 22 THE TESTAMENTARY EXCEPTION Collautt v.