While the average person, and even the average lawyer, always assumed that the attorney-client privilege covered what the lawyer said to the client, this hasn’t been the reality in Pennsylvania for at least the last few years. In 2007, Pennsylvania’s Superior Court had ruled that the statute governing the attorney-client privilege applied to statements from clients to lawyers, but was limited to only those statements from lawyers to clients that somehow incorporated the client’s earlier statement. If a lawyer spoke to the client in any other way, the attorney client privilege did not protect that communication. Later observers pointed out that the work product doctrine might still apply in some circumstances, but it would not cover every lawyer to client communication.
This holding put Pennsylvania out of the mainstream in relation to other states. It created potential scenarios where lawyers either had to hold back in speaking with clients or put themselves and their clients at risk to reveal conversations during discovery or at trial. It could even be possible that counsel handling a case could become a witness at trial under this holding.
Though not consciously so, the Superior Court ruling was consistent with a growing trend on limiting privileges and increasing pressures on lawyer disclosures. The reality of cutting off half of the privilege, however, raised an extremely broad based concern and broad opposition on appeal of the issue to the Supreme Court of Pennsylvania
In Gillard v. AIG Insurance Company, Pennsylvania’s Supreme Court made clear that the two way street was open again in Pennsylvania. The Court’s majority weighed precedent and history, prior inconsistencies in the case law, and the very good arguments on both sides of the policy issue. At the end of the day, in a 5 to 2 decision, the High Court reversed the Superior Court. The five justice majority held that “the attorney-client privilege operates in a two-way fashion to protect confidential client-to-attorney or attorney-to-client communications made for the purpose of obtaining or providing legal advice.”