Client identities do not enjoy blanket attorney-client privilege protection under Pennsylvania's Right-to-Know Law, the state Supreme Court has ruled.
Identities are typically not privileged unless they would be coupled with information about what type of work the attorney has done on behalf of the client that, when disclosed together, would essentially disclose attorney-client communications. Thehigh court determined, however, that previous disclosure that the attorney is representing a client in a grand jury investigation is not enough to protect the identity of the client.
The case stems from a Right-to-Know law request by Associated Press reporter Marc Levy for legal bills related to the state Senate's hiring of attorneys to represent former state Sen. Robert J. Mellow and other Democratic caucus employees. The Senate had argued the names of the clients and the descriptions of the services the attorneys provided were protected by the attorney-client privilege.
Mr. Levy had argued the law was intended to provide transparency in whether the government was spending taxpayer money lawfully. He said redacting the names of clients from bills along with descriptions of the services provided rendered such a determination impossible, according to the majority opinion written by Justice Max Baer.
"Consistently with many of our sister courts, we hold that, while a client's identity is generally not privileged, the attorney-client privilege may apply in cases where divulging the client's identity would disclose either the legal advice given or the confidential communications provided," Justice Baer said.
To clarify some confusion about the lower court's ruling in this case, he emphasized the court applied this exception to both criminal and civil cases.
"Application of the exception, however, will involve case-specific determinations of whether revealing the otherwise nonprivileged identity will result in the disclosure of privileged information based upon what has been previously disclosed," he wrote.
The Supreme Court also addressed the issue of whether descriptions of legal services are privileged. Justice Baer said at the outset of his opinion that general descriptions of legal services included in attorney invoices are not privileged, while specific descriptions that would reveal attorney-client communications are protected.
Later in his opinion, Justice Baer dismissed the Senate's argument that the Commonwealth Court had issued a bright-line rule finding legal descriptions were not protected. Rather, he said, the court and special master did a line-by-line analysis of the invoices and redacted those descriptions it felt were privileged.
The relevant question, Justice Baer said, was whether the descriptions would result in disclosure of information otherwise protected by attorney-client privilege.
"For example, descriptions of legal services that address the client's motive for seeking counsel, legal advice, strategy or other confidential communications are undeniably protected under the attorney-client privilege," he wrote.
"In contrast, an entry that generically states that counsel made a telephone call for a specific amount of time to the client is not information protected by the attorney-client privilege, but, instead, is subject to disclosure under the specific provisions of the RTKL."
In Levy v. Senate of Pennsylvania, the Senate initially denied Mr. Levy's request based solely on the attorney-client privilege argument. But in subsequent filings with the Senate appeals officer, the Senate also argued for nondisclosure based on the attorney-client work product doctrine, grand jury secrecy and the criminal investigation exception outlined in the Right-To-Know law.
Chief Justice Ronald D. Castille and Justices Thomas G. Saylor and Seamus P. McCaffery joined Justice Baer in the majority. Justice J. Michael Eakin wrote a concurring opinion joined by Justice Debra M. Todd.
Gayle C. Sproul of Levine Sullivan Koch & Schulz represented Mr. Levy.
"We are very pleased that the Supreme Court held that client identities are not generally privileged in the commonwealth and that there is no blanket privilege for legal invoices," she said. "That is the single principle that the AP has fought for from the outset of this case."