attorney-client privilege

We live in an age of instant information where there is constant temptation to share what one is doing and thinking. We are used to sharing our experiences and thoughts freely. The temptation becomes even greater when we are in times of stress. And, while this is a universal tendency that has always been prevalent, today we have a new means of making our thoughts known; through electronic writing.

A recent case outside the domestic relations realm informs us of the perils of this form of indulgence. The case in question involves a medical practice group that over a short period of time split into warring factions. The practice group encompassed different medical specialties and operated an acute care hospital in Greensburg, PA.

In 2010, rumors propagated that two physicians in the cardiology practice were performing surgical procedures which were not medically required or sound. The Chief Executive of the practice engaged an independent peer review group to evaluate these rumors. The preliminary report indicated that there were procedures performed that were not medically necessary.

Upon learning that their privileges were about to be suspended the two cardiologists resigned. The practice group then hired a second peer review organization to conduct a more complete study. Armed with a second report confirming that the cardiologists had performed unnecessary angioplasty, the physician group publicly announced its conclusion that there was wrongful conduct of the cardiologists.

The cardiologists subject to the report filed suit, alleging the reports to be false and the product of an effort by management to squeeze them out after the physicians had refused a buy out of their practice interests. The claims were cast as intentional interference in their relationships with their patients and defamation.

The practice group consulted with an attorney before deciding to publicly announce that the physicians had performed unnecessary surgery. The attorney shared her opinions on this subject with general counsel for the practice group. The practice group also hired a public relations firm to manage inquiries from the press and patients. General Counsel thought it provident to share the attorney’s opinion letter advising him about publicity with the public relations firm. This legal memo from attorney to client practice group was freely circulated within the public relations firm.

In 2013, the exiled physicians served the practice group they had sued with a request for “documents revealing any information related to your thoughts or plan to disclose to the media the conclusions of the independent peer evaluators.” The practice group asserted that this was an improper request for attorney-client communications. The physicians then scheduled the deposition of and subpoenaed the public relations executive in charge to bring any documents related to the public announcement made by the practice group about the physicians who were accused of improper practice.

No protective order was sought and the public relations executive was deposed. The deposition revealed that public disclosure had first been discarded as an option, but three days later those instructions were reversed and disclosure was authorized by management. The deponent had not revealed in deposition that she had been privy to the legal opinion independent counsel had provided to the employee-general counsel. That legal opinion surfaced as part of a privilege log. This prompted a renewed request for the opinion and all related correspondence. A discovery master reviewed the material in camera and decided the documents were privileged. The plaintiff physicians appealed. The Trial Court determined that transmission of the opinion letter to the public relations firm waived the privilege. The privilege is lost when protected communications are shared with third parties unless the third party is an agent of the lawyer acting in furtherance of the representation. Restatement of Law Governing Lawyers Sec. 70 (2000). In the Trial Court’s view the public relations company was providing service to the practice group, not the attorney advising that group.

The practice group appealed this order as collateral to the proceeding under Pa.R.A.P. 313. The application of privilege and work product doctrine is a question of law for which the standard of review is plenary.

The Superior Court opinion of Judge Mary Jane Bowes starts by noting that evidentiary privileges are not favored and need to be viewed to exclude evidence where there is a “public good transcending the normally predominant principle of utilizing all rational means for ascertaining the truth.” Key to this concept is that the client has not waived the privilege. Communications made in the presence of third parties or sent by the client to a third party lose their protection as privileged.

The appellate court distinguishes the facts in this case from situations where a law firm brings in experts on its own to assist in its representation of the client. If the third party is rendering advice to assist the lawyer in the representation, the communication is privileged. The third party’s access to privileged communications must be necessary or useful to the lawyer’s purpose. There was no link in this case between the opinion provided by counsel and the service that the public relations firm was engaged to provide. The deposition of the general counsel made clear that the public relations firm was not being consulted about whether to disclose the physician names or there alleged conduct.

As for claims of work product protection under Pa.R.C.P. 4003.3, the court notes that the purpose is to shield the mental processes of the attorneys so that they can prepare the case without fear that their theories of the litigation will be subject to discovery. But this rule is also subject to waiver. The Appeals Court devotes much attention to the Penn State University investigation that resulted in Bagwell v. Pennsylvania Dep’t. of Education, 103 A.3d 409 (Pa. Cmnwlth 2014). Bagwell had sought information provided to the state while he was affiliated with Penn State’s Board of Trustees. But the Bagwell court found that there had been no disclosure to a third party where the facts in this appeal show that the disclosure had been made for purposes not directly related to litigation or prospective litigation.

The takeaway is that what you give to and get from your attorney needs to remain confidential. Sharing that information with others creates the risk that the protection of that information may be waived. In this case a more thoughtful sequencing of who retained the public relations firm and when they were engaged (e.g., the independent attorney did the hiring) may have produced a different result.

Twitter, Facebook and other forms of instant messaging certainly do allow all of us to try to control the message or at least be first to relate it. But these methods have no legal protection. If you share the information you gave your lawyer or what the lawyer communicated to you, both the attorney client privilege and the work product doctrine will be jeopardized. If the matter you face merits engagement of counsel, counsel needs to be an integral part of any decisions about how the world learns your “news.”

Bousamra v. Excela Health et al.   2017 Pa. Super. 66 (March 13, 2017)

Psst, can I stop whispering in your ear and just email you instead? Its work-product.
Psst, can I stop whispering in your ear and just email you instead? Its protected as work-product.

Many of my cases involve the use of expert witnesses; individuals hired to review and testify about a specific issue or topic. Usually they are financial experts whose job is value a particular asset such as a business, while other experts could be psychologists conducting a custody evaluation. In other areas of law, there are individuals qualified as experts in virtually every conceivable topic and issue.  Whatever the underlying issue of a case, it is reasonable to assume there is an expert out there prepared to testify about it.

Consequently, communication between an attorney and the expert working on the case is critical and often encompasses trial strategy. It is vitally important that the expert and the attorney can openly and easily communicate about the case.  Not too long ago, however, this relationship and communication became subject to discovery in the case of Barrick et al. v. Holy Spirit Hospital of the Sisters of the Christian Charity et al.  At the time, the trial court ruled that expert testimony was subject to Pennsylvania’s liberal discovery rules and should be turned over to the other side. This was a radical departure from commonly held beliefs and practices protecting this communication and created significant consternation among attorneys.

The Superior Court heard the case in 2011 and overruled the trial court’s decision and barred the production of communication between a surgeon serving as an expert and the plaintiff’s attorney in a personal injury case. Attorneys across the state breathed a sigh of relief; they could actually email their experts again.

Recently, any ambiguity was mostly removed when the Pennsylvania Supreme Court upheld the Superior Court’s decision through a split, 3-3 decision (an evenly divided court results in affirmation of the Superior Court decision). I say mostly because it was a 3-3 split, but in affirming the decision, three justices created a bright-line rule denying the production of expert/attorney communication.

The argument that communications with experts did not fall within the work-product doctrine of confidentiality and were critical for counsel to the cross-examination and critiquing by counsel was not accepted by the Court. The Court felt that by having the opportunity to cross-examine the expert, there was sufficient opportunity to attack his/her opinion without having to divulge communications between the expert and attorney.

This is an important decision in Pennsylvania and affects every litigator, regardless of area of expertise and will allow for experts and attorneys to freely exchange ideas without fear that they will turn into trial exhibits.

Photo Credit: www.health.com

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Aaron Weems is an attorney and editor of the Pennsylvania Family Law Blog. Aaron is a resident of Fox Rothschild’s Blue Bell, Pennsylvania office and practices throughout the greater Philadelphia region. Aaron can be reached at 610-397-7989; aweems@foxrothschild.com, and on Twitter @AaronWeemsAtty