Attorney-Client Privilege Keeps Going - DD 3/06
Defense Digest
Attorney-Client Privilege Keeps Going, Keeps Going, And So On...
By Geoffrey S. McInroy, Esq.*In a recent case, the Superior Court defined the parameters of attorney-client privilege a little broader than previously believed.
In RE: Investigating Grand Jury; Appeal of Samuel C. Stretton, Esquire, 2005 Pa.Super. 369; 2005 Pa.Super. LEXIS 3974, is an appeal from an Order of the Court of Common Pleas of Delaware County, Civil Division, fining Attorney Samuel Stretton $100 per day for contempt when he refused to divulge communications with a former client to an Investigating Grand Jury.
Attorney Stretton represented a criminal defendant, "Mr. Y," during the defense of criminal charges. Following a trial, "Mr. Y" was convicted and sentenced to death on charges that he murdered, kidnapped, raped, and robbed. "Mr. Y" apparently voiced displeasure with this result and with Attorney Stretton's representation, to Attorney Stretton.
Following sentencing, Attorney Stretton filed a direct appeal in February 1983 and a Motion to Withdraw in April of 1983. In May 1983, the Motion to Withdraw was granted, and a Public Defender was appointed to represent "Mr. Y." After more than 20 years in prison, modern DNA analysis proved exculpatory to "Mr. Y." The District Attorney nol prossed the charges, and "Mr. Y" was released in 2003.
Suspecting that "Mr. Y" made inculpatory statements to Attorney Stretton after Attorney Stretton had been granted a withdrawal as "Mr. Y's" lawyer, the District Attorney reopened the investigation. The DA utilized an Investigating Grand Jury and subpoenaed Attorney Stretton to testify. Attorney Stretton refused to testify before the Grand Jury about what he had been told by "Mr. Y." In so doing, Attorney Stretton invoked the attorney-client privilege.
The trial court found Attorney Stretton in contempt and fined him $100 per day. Attorney Stretton appealed, and the Superior Court did not render its decision on this matter until over a year later, after more than $36,000 in fines had accrued. Fortunately for Attorney Stretton, the Superior Court agreed with him, and he did not have to pay the accumulated contempt fines.
In its opinion, the Superior Court held that conversations about previous representation between Attorney Stretton and his former client were privileged. Such communications are protected from disclosure by the attorney-client privilege because, even though formal representation had ended, Attorney Stretton retained a professional relationship with his client, and unless it was made clear that there was no confidentiality in the communication, the privilege remained.
The Superior Court reasoned that there is a strong public policy to encourage a client to talk freely with his attorney. In addition, the court noted that the fine line between when there is or is not representation is often not perceived by clients or former clients. The court went on to note that not every lawyer-client conversation takes place in the context of formal representation. The court cited occasions when clients consult lawyers to see if the lawyer is willing to represent them and if they want to retain the lawyer. According to the court, those conversations are privileged.
The court looked approvingly at Attorney Stretton's Brief when he argued:
". . . Any attorney who represents clients on a regular basis recognizes that clients will call even after their cases have been concluded and the file is in storage. A client will call and talk to the lawyer sometimes generally and sometimes about issues of the prior representation. [Mr. Y] did the same. Clients expect that these calls are confidential. Unless the lawyer indicates to the contrary, these conversations should and must be treated as confidential."
This decision works to broaden the attorney-client privilege to include not only those communications between client and attorney during the course of the representation, but also communications about the representation after the representation is completed. Absent the attorney informing a former client of a lack of confidentiality, any communications with a former client about former representation will be protected from disclosure by the attorney-client privilege.
Traditionally, the attorney-client privilege protected from disclosure confidential communications between an attorney and his client made during the course of the attorney's representation of that client. The attorney-client privilege could be waived only by the client. Absent an attorney-client relationship, communications with an attorney would be open to disclosure. As it stands, after this case, the attorney-client privilege extends beyond formal representation and covers communications about previous representation between an attorney and a former client within the scope of the professional relationship.
*Geoff McInroy is an associate in the Harrisburg, PA office and can be reached at (717) 651-3510 or gmcinroy@mdwcg.com.
