Wednesday, March 16, 2011

A Two Way Street: Attorney-Client Privilege

The attorney-client privilege is an old and sacred protection given to communications between an attorney and his or her client. The goal of the privilege is to allow clients to tell their attorney everything the attorney needs to know to properly represent and guide the client without fear of the opposing side being able to access this information by way of legal discovery in or out of the courtroom. One of the worst things a client can do is to lie to ot withhold information from the attorney on the case. People often think of the privilege only in terms of criminal matters. It does not matter whether it is a civil or a criminal case. The attorney needs to know all of the facts which might be relevant to the claim. If this communication is hindered in any way, the entire justice system suffers.

In the civil context, on February 23, 2011, the Supreme Court of Pennsylvania held in the case of Gilliard v. AIG Insurance Company that the attorney-client privilege is essentially a two way street, operating both to protect the flow of client communications to the attorney, as well as attorney communications and advice to clients. While this decision came about in the context of a case against insurance companies for bad faith and the plaintiff’s counsel was seeking all documents in the file of the attorneys representing the insurance companies, the breadth of the decision will also protect the plaintiff from the insurance company seeking any written communications between attorney and client.

The whole intent is not only to protect what the client says to the attorney but what interpretation and advice the attorney gives to the client in light of the facts of the case as they develop. Like any rule, exceptions will be carved out as time passes. Even in the context of the type of litigation which led to this decision, an insurer (and their attorney) will lose the privilege if they assert an "advice of counsel" defense to justify their actions in the handling of a claim.

Otherwise, the revered tradition of protection of these communications remains intact. This is an important decision recognizing not only the need for unfettered communication from the client to the attorney, but also the need for the attorney to communicate advice to the client freely and without reserve.  


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