The Legal Intelligencer reports that the Pennsylvania Supreme Court has ruled, with Justices Eakin and McCaffery dissenting, that Pennsylvania’s statutory attorney-client privilege protects not only communications by the client to the layer but, also, communications from lawyer to client. The ruling effectively expands the privilege in Pennsylvania – the relevant statute appear t cover only communications from client to lawyer, and Pennsylvania’s courts had previously only recognized a privilege for lawyer to client communications where the lawyer’s communication contained or was based upon information received from the client. Today’s ruling expands the privilege to cover ALL communications from lawyer to client.
While the court’s ruling has the effect of clarifying what has ling been a murky area of Pennsylvania law, and provides some welcome comfort to attorneys and their clients alike, it would seem that the court has regrettably igmored the plain language of the applicable statute and, as Justice McCaffery charges, legislated from the bench to replace the legislature’s unambiguous language with its own policy preferences. Justice Saylor, writing for the majority, answers this argument by asserting that the legislature could not have intended to limit the privilege as the dissenters suggest. It is, of course, possible that Justice Saylor is correct – that the legislature did indeed intend to enact a more expansive privilege. But the language of the statute that it did enact is plain and unambiguous, and inarguably defines the scope of the privilege as more limited than what the court’s majority has embraced. Had the legislature intended to enact a more sweeping privilege, it could have, and ought to have, explicitly said so. In light of the clear language in the statute, any expansion of the privilege ought to have come from the legislature, not the Pennsylvania Supreme Court.
You can read the majority opinion here, Justice Eakin’s dissent here, and Justice McCaffery’s dissent here. Thanks to Howard Bashman for tipping me off to the story.