Attorney client privilege


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Seminar given 1/26/11 on Federal and Pennsylvania law on Attorney-Client Privilege and Expert Witness Disclosures

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Attorney client privilege

  1. 1. Keeping Secrets: Recent Developments in Attorney-Client Privilege and Expert Witness Disclosure Rules January 26, 2011 Presented by Manko, Gold, Katcher & Fox© Copyright 2011
  2. 2. Introduction Jonathan H. Spergel, Esq. Partner, MGKF Suzanne Ilene Schiller, Esq. Partner, MGKF© Copyright 2011
  3. 3. Program Overview  Attorney-Client Communications  Federal Law  Pennsylvania Law  Best Practices  Attorney-Expert Communications  Federal Law  Pennsylvania Law  Best Practices  Q&A© Copyright 2011
  4. 4. Attorney-Client Communications Federal Law F.R.Civ.Proc. 501: “. . . . [T]he privilege of a witness . . . shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in light of reason and experience. However, in civil actions and proceedings, with respect to an element of a claim or defense as to which State law supplies the rule of decision, the privilege . . . shall be determined in accordance with State law.”© Copyright 2011
  5. 5. Attorney-Client Communications Federal Common Law  Communication must be between attorney and client  Communication must be for the purpose of obtaining or providing legal advice  Only the communication pertaining to the legal advice – not the underlying facts – is privileged Leading case: Upjohn Co. v. United States, 449 U.S. 383 (1981)© Copyright 2011
  6. 6. Attorney-Client Communications Pennsylvania Law 42 Pa.C.S. § 5928: “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 disclose the same, unless in either case this privilege is waived upon the trial by the client.”© Copyright 2011
  7. 7. Attorney-Client Communications Pennsylvania Law (cont’d) “[The] attorney-client privilege protects from disclosure only those communications made by a client to his or her attorney which are confidential and made in connection with the providing of legal services or advice.” Nationwide Mutual Insurance Co. v. Fleming, 924 A2d 1259 (Pa. Super. 2007), aff’d 2010 Pa. LEXIS 40 (January 10, 2010)(equally divided court)© Copyright 2011
  8. 8. Attorney-Client Communications Pennsylvania Law (cont’d) Philadelphia Court of Common Pleas: “Attorney-client privilege is perhaps a misnomer, since only the client’s statements enjoy a privilege. Communications of the attorney, on the other hand, are not privileged, except to the narrow extent to which they reveal communications made by the client.” Kennedy v. Yamaha Motor Corp., 210 Phila. Ct. Com. Pl. LEXIS 24 (2010)(Manfredi, J.)© Copyright 2011
  9. 9. Attorney-Client Communications Pennsylvania Law (cont’d) Philadelphia Court of Common Pleas: The attorney-client privilege “covers only factual communications from a client to her attorney. It is extended to communications from an attorney to a client only if, and only to the extent that, those communications from the attorney reveal the client’s confidential factual communications.” Kolar v. Preferred Unlimited, Inc. 14 Pa. D. & C. 5th 166 (2010) (Bernstein, J.)© Copyright 2011
  10. 10. Attorney-Client Communications Pennsylvania Law (cont’d) Gillard v. AIG Insurance, 947 A. 2d 836 (Pa. Super. 2008) Pa Supreme Court heard argument on: • Whether the attorney-client privilege applies to communications from the attorney to the client. • Whether the Superior Court erred in holding the attorney-client privilege applies only to confidential communications from the client to the attorney, pursuant to Nationwide Mutual Insurance Company v. Fleming, 924 A.2d 1259 (Pa. Super. 2007).© Copyright 2011
  11. 11. Attorney-Client Communications Best Practices  Scope of privilege in Pennsylvania is unsettled; attorney must assume his/her communications to client may be produced.  Written attorney communications should clearly identify that they are in response to confidential information communicated by the client in an effort to seek legal advice.  Attorney communications to client should be clearly identified as confidential and privileged, subject to attorney- client communications and attorney work product doctrine.© Copyright 2011
  12. 12. Attorney-Client Communications Best Practices (cont’d)  Be cognizant of size of distribution list  In house attorney acting as business person vs. lawyer  Verbal vs. written communications: potential conflict between attorney’s self-interest and interest in avoiding document disclosure© Copyright 2011
  13. 13. Attorney-Expert Communications Federal Law F.R.Civ.Proc. 26(a)(2) requires disclosure of:  The identity of the expert  For witnesses not required to provide a report, the subject matter of testimony and summary of facts and opinions  For witnesses requires to provide a report,  A complete statement of the opinion and the basis and reasons for them  The facts or data considered by the witness  Any exhibits that support the opinion  The witness’ qualifications, publications, prior testimony, and compensation  Depositions permissible without Court order under F.R.Civ.Proc. 26(b)(4)© Copyright 2011
  14. 14. Attorney-Expert Communications Federal Law (cont’d) Who Must Provide Report  Witness “is one retained or specially employed to provide expert testimony in the case or one whose duties as the party’s employee regularly involve giving expert testimony.” F.R.Civ.Proc. 26(a)(2)(B)© Copyright 2011
  15. 15. Attorney-Expert Communications Federal Law (cont’d) Protection of Trial Preparation Materials  Prepared in anticipation of litigation  United States v. Textron Inc., 577 F.3d 21 (1st Cir. R.I. 2009)(en banc)  Mental impressions, conclusions, opinions, or legal theories  Draft reports  Communications with Expert except as to:  Compensation  Facts or data relied upon  Assumptions© Copyright 2011
  16. 16. Attorney-Expert Communications Pennsylvania Law Pa.R.Civ.Proc. 4003.5 allows discovery of:  The identity of the expert  The subject matter of the testimony  The substance of the facts and opinions  Further discovery only by Court order upon a showing of good cause© Copyright 2011
  17. 17. Attorney-Client Communications Pennsylvania Law (cont’d) “To test the weight and veracity of Dr. Green’s ultimate conclusions, Appellees are entitled to discovery the extent of counsel’s influence over Dr. Green’s opinions and whether counsel directed Dr. Green to reach certain conclusions or to disregard certain facts or take other facts into consideration. In other words, Appellees are entitled to discovery information which would enable them to ascertain whether Dr. Green’s opinions are his own or whether he merely intended to parrot what he was told by counsel.” Barrick v. Holy Spirit Hospital, 2010 Pa. Super. 170 (Sept. 16, 2010).© Copyright 2011
  18. 18. Attorney-Expert Communications Best Practices  Will state procedure or federal procedure apply? May not know, so must assume least common denominator (PA procedure) applies.  Retention letter issues; non-testifying versus testifying expert  Concerns with converting non-expert consultants to expert witnesses.  Treatment of draft reports; attorney input© Copyright 2011
  19. 19. Questions or Further Information Suzanne Ilene Schiller ( Jonathan H. Spergel ( Manko, Gold, Katcher & Fox LLP 401 City Avenue, Suite 500 Bala Cynwyd, PA 19004 (484) 430-5700© Copyright 2011