Attorney E-Newsletter

March 2011

Supreme Court Declares Two-Way Street for Attorney-Client Privilege

On February 23, 2011, the Supreme Court of Pennsylvania decided an important issue of the law of attorney-client privilege in the case of Gillard v. AIG Insurance Company. The issue presented was whether the attorney-client privilege established in 42 Pa. C.S.A. §5928 applies to communications from attorney to client which are not derivative (i.e., which do not incorporate confidential communications from the client).

The case involved allegations of bad faith by the insurance company. In the course of discovery, the plaintiff sought production of all documents in the file of the law firm representing the defendant insurance company. In its response to the discovery, the defendant’s counsel redacted documents prepared by the law firm, asserting attorney-client privilege. The lower court ordered the redacted documents produced and the Superior Court affirmed, relying upon the holding in Nationwide Mutual Insurance Company v. Fleming, 924 A. 2d 1259 (Pa. Super. 2007) that the statutory attorney-client privilege applies only to communications from client to attorney.

The opinion of the Court, written by Justice Saylor, examined the arguments and historical precedents in detail, and concluded that the statutory privilege applies to communications from lawyer to client as well. Justice Saylor wrote, “We hold that, in Pennsylvania, the attorney-client privilege operates in two-way fashion to protect confidential client-to-attorney or attorney-to-client communications made for the purpose of obtaining or providing professional legal advice.” Slip opinion at 23.

Justice Eakin wrote a dissenting opinion in which he acknowledged the reasoning of the majority opinion, but expressed the view that the statute does not support that interpretation and that the change in direction expressed by the majority should take place through legislation or a published rule.

Justice McCaffery, who was the author of the Superior Court’s decision in the Nationwide case while sitting on the Superior Court, wrote a dissenting opinion in which he argued that neither the statutory language nor the case law supports the majority’s position that the statutory privilege extends to attorney-to-client communications beyond the derivative. He added that many of the policy concerns underlying the majority’s view are addressed by the work-product privilege.

Former Judge Ciavarella Convicted of 12 Counts, Acquitted of 27

On February 18, 2011, Mark Ciavarella, former judge of the Court of Common Pleas of Luzerne County, was convicted of 12 counts of criminal charges by a jury in the United States District Court in Scranton. Ciavarella faced 39 counts based upon allegations that he and former President Judge Michael Conahan accepted nearly $1 million in wire transfers from Robert Mericle, the developer of the PA Child Care Center, allegedly in return for sentencing juveniles to the facility. He was found guilty of 12 counts, including racketeering, money laundering and conspiracy. Ciavarella was acquitted on charges of bribery and extortion.

Ciavarella has denied the allegations, and stated he would appeal. On March 4, 2011, Ciavarella’s counsel filed a motion for acquittal or for a new trial, alleging that the statute of limitations ran out on the alleged payments, and that the court committed various errors in barring or accepting evidence into the record.

Lawyer Suspended for Unpaid Work in a Single Case while on Inactive Status

We have written many times of the serious disciplinary consequences that happen to lawyers who continue to practice while on inactive status. One lawyer learned that lesson the hard way, although he only got involved in a single case, and accepted no fees for his actions.

Gary Alan Frank never actively practiced law, but in 2000 he became involved in a divorce case at the request of another attorney, who was in poor health. He initially worked to assist the attorney of record, and communicated with the client and opposing counsel. In 2002 he was transferred to inactive status when he failed to file his registration form or pay his fee. The attorney of record was transferred to inactive status in 2006 and died in 2008. After the attorney of record became inactive, Frank continued to communicate with the client, opposing counsel, and the court. He appeared at hearings, filed motions and briefs with the court, and used his attorney registration number and letterhead, all without informing the client, opposing counsel, or the court that he was on inactive status. Finally in 2006 he informed the client he was no longer involved in the case, but he failed to inform the court or opposing counsel.

The parties agreed in a Joint Petition in Support of Discipline that Frank’s motivation was to help the client and a disabled fellow attorney, and that he never received any fees for his efforts. Frank was suspended for a year and a day. A three-member panel of the Disciplinary Board recommended approval of the sanction to the Supreme Court, which suspended Frank in an order dated March 2, 2011.

Online Registration Arrives in Pennsylvania

Once again, the time is approaching for annual registration renewal. Annual fee forms for 2011-2012 will be sent out in May and will be due July 1, 2011.

Each year at registration time, many attorneys inquire as to whether the Board has a process for online registration using credit cards rather than mailing in a paper form and a check. You asked for it, and you got it!

For the first time this year, the Registration Office will offer the option of online renewal of attorney licenses. Details and procedures will be announced closer to the time when registration forms are mailed out.

York Lawyer Helps Save Jumper

We write all the time here of the problems lawyers get into through misconduct, but sometimes we need to remember the many fine, dedicated, and even heroic things Pennsylvania lawyers do.

This month we recognize York lawyer Kurt Blake, whose quick thinking and action helped save the life of a despondent woman at the York County Judicial Center.

On February 17, 2011, Blake was walking out of a hearing room on the fourth floor when he saw a woman dangling in the air outside the window. The woman had climbed over a railing on the sixth floor and started to drop from the window ledge when a sheriff’s deputy caught hold of her clothing. She was dangling and slipping out of the deputy’s grasp when Blake rushed to the window and threw his arms around her, preventing her from falling. With the assistance of a third man, they were able to pull the woman back over the railing to safety. The woman was committed to York County Hospital for treatment.

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