Legal Professional Privilege: Comparing Different Approaches within the United States and the European Union

THE CONCEPT of privileged attorney-client communications has been a long standing tenet in legal communities for decades. However, the scope and justification for privilege vary by jurisdiction. This article compares current trends concerning the status of privileged communications made between a lawyer and his or her client within both the United States (US) and the European Union (EU). While at least one jurisdiction in the US has extended attorney-client privilege to protect attorney-to-client communications, in a recently decided case, the European Court of Justice (EUCJ) affirmatively narrowed this privilege. 1. Green Light: Pennsylvania Protects Attorney to Client Communications In an Opinion issued on February 23, 2011, the Pennsylvania Supreme Court clarified the issue of attorney-client privilege and recognized that the privilege protects attorney-to-client communications as well as client-to-attorney communications. (1) Gillard vs. AIG Insurance recognized that: ... in Pennsylvania, the attorney-client privilege operates in a two-fashion to protect confidential client-to-attorney or attorney-to-client communications made for the purpose of obtaining or providing professional legal advice. The Gillard decision overturned the prior standard, articulated most recently in Nationwide v. Fleming. (2) The Nationwide case involved internal documents from in-house counsel. The Pennsylvania Superior Court held, based on statute, that the documents were discoverable as they were communications from counsel to the The case was then appealed to the Pennsylvania Supreme Court. Because of odd circumstances, only four Justices participated in the Nationwide opinion, with two Justices affirming and two voting for reversal. As a result, the holding of the Superior Court remained the law of the Commonwealth until the Gillard decision. Gillard involved a claim for statutory insurance bad faith arising out of the handling of an underlying claim for uninsured/underinsured motorist benefits. The trial court ordered the Defendants to produce documents which were drained by counsel for the Defendants in the underlying underinsured motorist claim and directed to the claims handler. The underlying action was a UM/UIM arbitration. On the eve of the hearing, the underlying matter settled. Subsequently, the statutory insurance bad faith action was filed. Since the documents were created relative to the underlying action that had concluded, the attorney work product privilege was not available. In the bad faith action, defense counsel asserted attorney-client privilege. The trial court issued a blanket ruling from the bench that communications from an attorney to his client are not protected by the attorney-client privilege. The trial judge stated: According to the Pennsylvania statute, the attorney-client protection only applies to communications made by the That's my ruling. (3) The statute in question states: Confidential communications to an attorney. 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. (4) Both the trial court and the Superior Court strictly interpreted the statute, holding that since it only referenced client-to-attorney communications, only those communications would be privileged. In its argument, AIG took the position that the codification of the attorney-client privilege did not change or limit the essential nature of the common law, which dated back to colonial times in Pennsylvania. Further, the current statute essentially reenacted an original statute dating to 1887. Many years prior to the reenactment, the Supreme Court decided the case of National Bank of West Grove v. Earle. (5) In that case, a group of unsecured creditors sought discovery from one Counselor Johnson, who was an attorney involved in the reorganization of stocks for a company known as Record Publishing Company, in order to satisfy outstanding creditors. …