In Re: 33rd Statewide Investigating Grand Jury (majority)
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The Pennsylvania Turnpike Commission filed a petition for review of an order of the supervising judge of the Thirty-Third Statewide Investigating Grand Jury (Dauphin County) which denied the Commission’s motion for a protective order seeking to prohibit the Office of Attorney General from reviewing allegedly privileged or protected communications between the Commission and its counsel. Finding no reversible error, the Supreme Court affirmed the denial of the Commission's petition.
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[J-2-2013]
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, ORIE MELVIN, JJ.
IN RE: THIRTY-THIRD STATEWIDE
INVESTIGATING GRAND JURY
PETITION OF: PENNSYLVANIA
TURNPIKE COMMISSION
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No. 85 MM 2012
Appeal from the Order of the Dauphin
County Court of Common Pleas at No.
1325 MD 2010 (Notice No. 21) dated April
24, 2012
ARGUED: March 5, 2013
OPINION
MR. CHIEF JUSTICE CASTILLE
DECIDED: February 18, 2014
Appellant, the Pennsylvania Turnpike Commission (the “Commission”), filed a
petition for review of an order of the supervising judge of the Thirty-Third Statewide
Investigating Grand Jury, sitting in the Dauphin County Court of Common Pleas, which
denied the Commission’s motion for a protective order seeking to prohibit the Office of
Attorney General (the “OAG”) from reviewing allegedly privileged or protected
communications between the Commission and its counsel.
Final orders in matters
involving investigating grand juries are within the exclusive appellate jurisdiction of this
Court. 42 Pa.C.S. § 722(5). This case does not involve a final order, but the Court
accepted the Commission’s petition for review and directed briefing and oral argument to
consider the important question of privilege in the context of Commonwealth agencies
subject to grand jury investigation. We now affirm.
Background1
Since 2009, the OAG has been conducting a statewide grand jury investigation
into whether criminal statutes have been violated by the Commission, its employees and
others, in connection with, inter alia, the Commission’s employment and procurement
practices.
Throughout the investigation, the OAG has issued subpoenas to the
Commission and third parties. According to the Commission, it has produced more than
140,000 pages of material to the OAG in response to subpoena, but with regard to certain
requested material, the Commission invoked the protections of the attorney-client
privilege and the attorney work product doctrine. The Commission sought to negotiate
with the OAG a plan for production of the material through the use of a “privilege log.”
The Commission proposed the following review process: 1) the OAG would identify in
general terms (either by custodian, name of outside law firm, or some other specific
identifying information) documents and communications of a potentially privileged nature
that the OAG wished to review; 2) the Commission’s counsel would then review the
material, produce documents that were not protected, and provide the OAG with a
privilege log of any material that the Commission withheld on the basis of the
attorney-client privilege or work product doctrine; 3) following receipt of the privilege log, if
the OAG either disagreed with the stated basis for withholding an item, or otherwise
believed that an exception existed that would override the asserted protection, then the
1
The record in the grand jury proceedings below, and the reproduced record on appeal,
have been sealed. In this Opinion, we refer only to legal arguments and factual
background included by the parties in their briefs filed in this Court, which are not sealed.
Because the appeal arises out of legal questions, rather than factual disputes, our
expression is not truncated in any material fashion.
[J-2-2013] - 2
OAG would identify those items to the Commission’s counsel; and 4) if no agreement
could be reached about those items, then counsel would promptly provide any material in
question to a court for in camera review and disposition. See Pa. R. Crim. P. 573(F) (on
motion, court may permit showing of disputed discovery material to be made in form of
written statement to be inspected by court in camera). Commission’s Brief at 5-6. The
OAG rejected the Commission’s proposal.
Subsequently, the Commission filed a motion for protective order with the
supervising judge of the grand jury, the Honorable Barry F. Feudale, seeking to prevent
disclosure of the allegedly protected materials, and to allow instead the production of
material through the proposed privilege log which would identify items withheld on the
basis of the attorney-client privilege or work product doctrine. 2
The Commission
maintained that it could invoke these privileges because the statutory codifications are
2
The Commission claims protection under the attorney-client privilege and the work
product doctrine. We note that the the U.S. Supreme Court has referred to the work
product doctrine as a “qualified privilege for certain materials prepared by an attorney
‘acting for his client in anticipation of litigation.’” United States v. Nobles, 422 U.S. 225,
237-38 (1975) (quoting Hickman v. Taylor, 329 U.S. 495, 510-11 (1947)). See also
Commonwealth v. Kennedy, 876 A.2d 939, 945 (Pa. 2005). As we observed in
Commonwealth v. Williams, __ A.3d __ (Pa. February 18, 2014), the work product
doctrine does not fit neatly into the traditional privilege concept, which addresses a legal
right or immunity granted to a person or class of persons: for example, the attorney-client
privilege protects the client from testimonial disclosure of confidential communications
with his attorney. See 42 Pa.C.S. § 5916 (“In a criminal proceeding 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.”); 42 Pa.C.S. § 5928 (same, respecting civil
matters). The work product doctrine, on the other hand, is an exemption from discovery
for certain types of documents. See Pa. R. Crim. P. 573(G) (“Disclosure shall not be
required of legal research or of records, correspondence, reports, or memoranda to the
extent that they contain the opinions, theories, or conclusions of the attorney K or
members of their legal staffs.”). For ease of discussion, we may refer to the work product
doctrine as a privilege, while still appreciating the complexity.
[J-2-2013] - 3
unequivocal in their application to all attorneys and all of their clients, and that nothing in
the Commonwealth Attorneys Act (the “CAA”), not even the broad “books and papers”
provision, 71 P.S. § 732-208,3 eliminates, modifies or otherwise qualifies privileges for
Commonwealth agencies. In response, the OAG insisted that it should have “unfettered
access” to all requested items, and that the attorney-client and work product privileges do
not protect the documents and records of a Commonwealth agency from a grand jury
subpoena.
On April 24, 2012, Judge Feudale denied the motion for protective order and filed a
Memorandum Opinion under seal. Judge Feudale concluded, in relevant part, that the
OAG has the right to access all of the requested material pursuant to the books and
papers provision of the CAA, and that the attorney-client and work product privileges do
not preclude the OAG’s access to these materials.
The Commission filed a petition for review in this Court pursuant to Pa. R. A. P.
3331(a)(3) and Chapter 15 of the appellate rules, asserting that the supervising judge’s
interlocutory order was immediately appealable as a collateral order.
We granted
review, ordered briefing, and directed that the matter be listed for oral argument. In re
Thirty-Third Statewide Investigating Grand Jury, 48 A.3d 1217 (Pa. 2012) (per curiam).
Mr. Justice Saylor filed a Dissenting Statement noting, inter alia, that the Commission
argued that its right to review arose under the collateral order doctrine; that the Court’s
prior decisions had declined to review privilege assertions in the grand jury setting under
3
Section 208 of the Commonwealth Attorneys Act provides: “The Office of Attorney
General shall have the right to access at all times to the books and papers of any
Commonwealth agency necessary to carry out his duties under this act.” 71 P.S. §
732-208.
[J-2-2013] - 4
the collateral order doctrine, for reasons relating to the interests and complexities
particular to the investigative grand jury process; and that interlocutory review in the
grand jury setting, in the few instances deemed appropriate, generally proceeded under
the Court’s powers of extraordinary jurisdiction.
Justice Saylor noted that he was
uncomfortable with a movement away from that constancy of approach in the grand jury
setting; and thus, he would have denied collateral order review. Id. at 1217-18 (Saylor,
J, dissenting).
The parties have briefed the following merits issues: 1) whether the attorney-client
privilege and the work product doctrine apply to records and communications of
Commonwealth agencies in the context of a criminal investigation by the OAG; 2) whether
the books and papers provision of the CAA, 71 P.S. § 732-208, waives and eliminates the
attorney-client privilege and work product doctrine for Commonwealth agencies in a
criminal investigation by the OAG; and 3) whether a Commonwealth agency and the OAG
are the same “client” for purposes of invoking the attorney-client privilege and work
product doctrine in a criminal investigation by the OAG.4
4
In granting the Commission’s petition for review, this Court did not specify issues for
consideration in this appeal. We have listed the issues as phrased by the Commission
as the petitioner/appellant. As explained infra at footnote 15, and accompanying text,
we need not engage in extended analysis of the third issue posed by the Commission,
given our disposition of the first two issues, which we will consider together.
[J-2-2013] - 5
I.
Appellate Jurisdiction
The question of whether the order below is appealable implicates this Court’s
jurisdiction.
Commonwealth v. Kennedy, 876 A.2d 939, 943 (Pa. 2005).
Our per
curiam order accepting the petition for review for briefing and argument did not address
the basis for our exercise of jurisdiction, and the parties have not made arguments on this
point in their briefs. The Commission states simply that the appeal involves a collateral
order issued by the supervising judge of a statewide investigating grand jury, and thus, in
its view, the order is immediately appealable pursuant to Pennsylvania Rules of Appellate
Procedure 313, 702(c) and 3331. Given the salient points raised in Justice Saylor’s
dissent to our per curiam order, some discussion of the basis for our jurisdiction over the
instant interlocutory order is appropriate.
Appellate Rule 313 provides that an “appeal may be taken as of right from a
collateral order of an administrative agency or lower court.” Pa.R.A.P. 313(a). The
Rule defines a collateral order as one that is “separable from and collateral to the main
cause of action where the right involved is too important to be denied review and the
question presented is such that if review is postponed until final judgment in the case, the
claim will be irreparably lost.” Pa.R.A.P. 313(b). See Commonwealth v. Wright, 78
A.3d 1070, 1077-79 (Pa. 2013) (discussing collateral order doctrine and allowing
immediate Commonwealth appeal from interlocutory order regarding criminal defendant’s
competency to waive rights on post-conviction review). Appellate Rule 702(c) provides
that all petitions for review related to special prosecutions or investigations shall be filed in
the Supreme Court, and Appellate Rule 3331(a)(3) further provides that an “order entered
in connection with the supervision, administration or operation of an investigating grand
[J-2-2013] - 6
jury or otherwise directly affecting an investigating grand jury or any investigation
conducted by it” shall be subject to review pursuant to Chapter 15 of our appellate rules
related to judicial review of governmental determinations. See also 42 Pa.C.S. § 722(5)
(Supreme Court has exclusive jurisdiction of appeals from final orders of courts of
common pleas in cases involving convening, supervision, administration, operation or
discharge of an investigating grand jury or otherwise directly affecting such grand jury or
any investigation conducted by it). But see Pa.R.A.P. 3331(d) (interlocutory or final
nature of order shall not be affected by this rule and unless independent grounds appear
for review of an interlocutory order, interlocutory nature of order will be sufficient reason
for denying petition for review); Note to Pa.R.A.P. 3331 (rule “is intended to provide a
simple and expeditious method for Supreme Court supervision of special prosecutions
and investigations, e.g., orders of the supervising judge of an investigating grand jury,”
but is not applicable to review of investigating grand jury issues that collaterally arise in
plenary criminal prosecution initiated by complaint, information or indictment).
Outside the grand jury context, this Court has applied the collateral order doctrine
to allow immediate review of interlocutory orders involving privilege matters, most often
and recently in cases arising under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.
§§ 9541-9546.
In the PCRA context, both defense and Commonwealth appeals
involving interlocutory orders affecting privilege have been deemed to be reviewable
collateral orders. See, e.g., Wright, supra; Commonwealth v. Harris, 32 A.3d 243, 251
(Pa. 2011) (defense PCRA appeal; holding that “orders overruling claims of privilege and
requiring disclosure are immediately appealable” as collateral orders); Commonwealth v.
Williams, supra (Commonwealth appeal from PCRA discovery order involving trial
[J-2-2013] - 7
prosecutor’s notes, where order alleged to violate work product doctrine, deemed
reviewable collateral order). In the wake of cases such as Harris, our approach in this
area may properly be described as uniform and categorical. See Thirty-Third Statewide
Investigating Grand Jury, 48 A.3d at 1217-18 (Saylor, J., dissenting).
Within the context of a grand jury proceeding, we have recognized that an
otherwise interlocutory order may be reviewable if it satisfies the requirements of the
collateral order doctrine, but that the doctrine should be “stringently applied.” See In re
Dauphin County Fourth Investigating Grand Jury, 943 A.2d 929, 935 (Pa. 2007).
However, as Justice Saylor accurately noted in his dissent to our exercise of jurisdiction
here, in cases where the interlocutory grand jury appeal derives from a privilege-based
challenge to a subpoena, our approach has been to disallow review unless the appeal
arises in the context of a contempt proceeding and actual sanction for failing to comply
with the subpoena. Thus, we have held that “[o]ne seeking to challenge the propriety of
a grand jury subpoena must generally choose between complying with the subpoena and
litigating the validity through contempt proceedings,” noting that this “approach facilitates
the development of an adequate factual record in support of the reasons supporting
resistance to the subpoena.” In re Twenty-Fourth Statewide Investigating Grand Jury,
907 A.2d 505, 510 (Pa. 2006). In other words, instead of allowing immediate appeal of
an order denying a challenge to a grand jury subpoena via the collateral order doctrine,
we have ordinarily required that the challenger of the subpoena refuse compliance and be
held in contempt before we will exercise jurisdiction to review the merits of the
interlocutory matter. Id. at 511; Dauphin County Fourth Investigating Grand Jury, 943
A.2d at 935 (denying review of interlocutory orders entered by supervising judge of grand
[J-2-2013] - 8
jury quashing in part and allowing in part certain grand jury subpoenas; petitioners had
not yet exposed themselves to contempt and also did not argue that orders met
requirements of collateral order doctrine, but “it is clear that the [collateral order] doctrine
does not apply”). This general practice supports the important “policy against
unnecessarily impeding a grand jury investigation” and avoids the danger of a reviewing
court placing itself “at the very heart of a grand jury’s investigation” as it attempts to
determine whether or not the contested order is indeed collateral.
Twenty-Fourth
Statewide Investigating Grand Jury, 907 A.2d at 510-11 (quoting from In re Grand Jury
Subpoena, 190 F.3d 375, 384 (5th Cir. 1999)).
Accord Thirty-Third Statewide
Investigating Grand Jury, 48 A.3d at 1217-18 (Saylor, J., dissenting).
Obviously, this appeal arises before the Commission – or more accurately stated,
the Commission’s employees or individual commissioners – have been held in contempt
for failure to comply with the subpoenas at issue. Nevertheless, aware of our prior cases
and the countervailing concerns well-articulated in Justice Saylor’s dissent, the Court has
exercised its power of review here, knowing that it did not fit neatly into the paradigm
described above.
We do so for the following reasons.
But for the concerns and
complexities specific to the grand jury context, an order such as the one sub judice –
implicating claims of privilege – would qualify as a reviewable collateral order under our
emerging categorical approach.
At least in the context of government agency
employees facing the requirement of a contempt citation and sanction in order to
vindicate claims of privilege in the grand jury context, we believe an exception to our
general approach is in order, so as to resolve this particular question once and for all.
See Pennsylvania Gaming Control Bd. v. Office of Attorney General, 44 A.3d 1134,
[J-2-2013] - 9
1137-38 (Pa. 2011) (Castille, C.J., dissenting) (arguing that rationale for not allowing
immediate collateral appeal from contempt order should not apply “where the subjects of
subpoena, who have been threatened with incarceration, are public employees of a
public agency arguably just trying to do their jobs”).
We recognize that there is an aspect of our exercise of jurisdiction here which
implicates review for reasons that have led us to invoke extraordinary review in other
grand jury matters: i.e., to answer an important and potentially recurring issue, in an area
subject to our review if the orders were final.
Our addressing the important and
potentially recurring issue of privilege in the government agency context should not be
read as a categorical approval of interlocutory appeals of this sort in grand jury matters,
under the traditional collateral order doctrine. The general requirement of exposure to
the contempt process remains intact.
We therefore proceed to consider the merits of the appeal.
II.
Arguments
The Commission argues that it is entitled to invoke the attorney-client privilege and
work product doctrine to protect communications with its in-house and outside counsel.5
5
We refer throughout this opinion to “government lawyers,” and in caselaw on the
subject, the disputes often involve in-house counsel. It is clear that the Commission also
engages outside counsel, and that the material subject to the grand jury subpoena here
includes communications with outside counsel retained by the Commission. Judge
Feudale’s order denying the motion for a protective order did not distinguish between
in-house or outside counsel. The parties cast their arguments here, and we consider the
issues, in terms of publicly-funded lawyers, whether “outside” or “in-house,” who are hired
for the purpose of advising a government agency, its officials and employees, about their
government-related duties.
[J-2-2013] - 10
According to the Commission, the statutory evidentiary privileges codified in the Judicial
Code are applicable in both criminal cases, 42 Pa.C.S. § 5916, and civil cases, id. § 5928,
and the statutes’ headings make no distinction between government or private client
communications or between government or private attorneys, and thus the provisions
unequivocally apply to all attorneys and all clients. The Commission argues that the
supervising judge’s construction of the attorney-client privilege “suborns the plain
language of the statutes to the OAG’s overzealous pursuit of ‘unfettered access,’ and
improperly reads in a statutory carve-out for counsel advising government agencies.”
Commission’s Brief at 11-12 (citing Commonwealth, Dep’t of Transp. v. Taylor, 841 A.2d
108 (Pa. 2004) (rejecting argument that privilege statutes may be rewritten to accomplish
a perceived purpose that is at odds with plain language)). The Commission argues that
had the General Assembly actually sought to make an exception to the privilege for
government attorneys, it could have done so expressly in these statutes.
Moreover, argues the Commission, the Right to Know Law, 65 P.S. §§ 67.101 67.3104 (“RTKL”), allows a requester to seek public records from Commonwealth
agencies, see 65 P.S. § 67.301 (Commonwealth agency shall provide public records), but
specifically excludes from production a record “protected by a privilege.” 65 P.S. §
67.102. The Commission argues that there is no similar “statutory override” of the
codified evidentiary privileges in the grand jury context.
In addition, the Commission argues that Pennsylvania’s Civil and Criminal Rules of
Procedure unequivocally supply work product protection to the products of every
attorney, regardless of the attorney’s or the client’s “government status.” Commission’s
Brief at 15 (citing Pa. R. C. P. 4003.3 and Pa. R. Crim. P. 573(G)).6 Again, according to
6
Civil Rule 4003.3 provides that “discovery shall not include disclosure of the mental
impressions of a party's attorney or his or her conclusions, opinions, memoranda, notes
or summaries, legal research or legal theories.” Criminal Rule 573(G) provides that
(continuedK)
[J-2-2013] - 11
the Commission, the scope of this protection applies to the work product of attorneys of
and for government agencies. Commission’s Brief at 15 (citing LaValle v. Office of Gen.
Counsel, 769 A.2d 449, 458 (Pa. 2001) (report prepared by consultant for Department of
Transportation was protected from request under former Right to Know Act as work
product)). The Commission further claims that the books and papers provision of the
CAA relied upon by the OAG, see 71 P.S. § 732-208, simply states that the OAG “shall
have the right to access at all times to the books and papers of any Commonwealth
agency necessary to carry out his duties under this act,” but its plain language does not
purport to waive or otherwise limit the protections afforded by these privileges. 7
According to the Commission, since the evidentiary privileges set forth in 42 Pa.C.S. §§
5916 and 5928 (enacted in 1976) preexisted the books and papers provision in the CAA
(enacted in 1980), those privileges remain inherent in the later provision, or else the
General Assembly would have expressly stated the privileges were waived through its
newer enactment. The Commission also argues that the OAG’s interpretation of the
books and papers provision improperly “reads out” the qualifying phrase “necessary to
(Kcontinued)
disclosure “shall not be required of legal research or of records, correspondence, reports,
or memoranda to the extent that they contain the opinions, theories, or conclusions of the
attorney for the Commonwealth or the attorney for the defense, or members of their legal
staffs.”
7
For this argument, the Commission relies, in part, on this author’s dissenting opinion in
Pa. Gaming Control Bd., 44 A.3d at 1140. However, that expression, filed in response to
the Court’s declining to entertain the petition for review in that case, simply expressed the
belief that the issue of the applicability of the attorney-client and work product privileges to
CAA requests in grand jury proceedings was one “of great public importance that should
be addressed by this Court.” Id. I expressly offered no view on the merits, although I
recognized that federal courts had issued differing decisions on the difficult issue. Id. at
1143-44. The merits issue is squarely before us now.
[J-2-2013] - 12
carry out” the OAG’s duties, which actually makes clear that the OAG is not entitled to
every book and paper of an agency, but only a certain subset.
The Commission further argues that the supervising judge improperly determined
that the reference in Section 732-208 of the CAA to “access at all times” confers on the
OAG an unfettered right to possess and review all books and papers of an agency, rather
than allowing the use of a privilege log as was proposed here.
According to the
Commission, the court also erred when it relied on Pennsylvania Rule of Professional
Conduct 1.13 in deciding that the Commission and the OAG are one “client” such that the
OAG could waive the attorney-client privilege for the Commission.8 The Commission
8
Rule of Professional Conduct 1.13 applies generally to lawyers who represent
“organizations,” and provides:
Organization as Client
(a) A lawyer employed or retained by an organization represents the
organization acting through its duly authorized constituents.
(b) If a lawyer for an organization knows that an officer, employee or other
person associated with the organization is engaged in action, intends to act
or refuses to act in a matter related to the representation that is a violation of
a legal obligation to the organization, or a violation of law which reasonably
might be imputed to the organization, and is likely to result in substantial
injury to the organization, the lawyer shall proceed as is reasonably
necessary in the best interest of the organization. In determining how to
proceed, the lawyer shall give due consideration to the seriousness of the
violation and its consequences, the scope and nature of the lawyer's
representation, the responsibility in the organization and the apparent
motivation of the person involved, the policies of the organization
concerning such matters and any other relevant considerations. Any
measures taken shall be designed to minimize disruption of the
organization and the risk of revealing information relating to the
representation to persons outside the organization. Such measures may
include among others:
(1) asking for reconsideration of the matter;
(2) advising that a separate legal opinion on the matter be sought for
presentation to appropriate authority in the organization; and
(continuedK)
[J-2-2013] - 13
points out that the commentary to Rule 1.13 makes clear that its scope is limited and that
the rule does not precisely define the identity of the client of government lawyers.
Specifically, the Commission focuses on part of Comment 6 to Rule 1.13 which provides:
“The duty defined in this Rule applies to governmental organizations. Defining precisely
the identity of the client and prescribing the resulting obligations of such lawyers may be
more difficult in the government context and is a matter beyond the scope of these
Rules.” 9
The Commission argues that, as an independent agency, it is instead
authorized to appoint chief counsel and assistant counsel to provide it with legal
assistance if the OAG initiates litigation against it. 71 P.S. §§ 732-401, 732-402(3)(ii).
(Kcontinued)
(3) referring the matter to higher authority in the organization, including,
if warranted by the seriousness of the matter, referral to the highest
authority that can act on behalf of the organization as determined by
applicable law.
(c) If, despite the lawyer's efforts in accordance with paragraph (b), the
highest authority that can act on behalf of the organization insists upon
action, or a refusal to act, that is clearly a violation of law and is likely to
result in substantial injury to the organization, the lawyer may resign in
accordance with Rule 1.16.
(d) In dealing with an organization's directors, officers, employees,
members, shareholders or other constituents, a lawyer shall explain the
identity of the client when the lawyer knows or reasonably should know that
the organization's interests are adverse to those of the constituents with
whom the lawyer is dealing.
(e) A lawyer representing an organization may also represent any of its
directors, officers, employees, members, shareholders or other
constituents, subject to the provisions of Rule 1.7. If the organization's
consent to the dual representation is required by Rule 1.7, the consent shall
be given by an appropriate official of the organization other than the
individual who is to be represented, or by the shareholders.
9
The remainder of Comment 6 does not necessarily support the Commission’s position,
as will be discussed more fully infra.
[J-2-2013] - 14
And, the Commission insists, the OAG is not the “client” for purposes of waiving the
Commission’s privileges.
Moreover, the Commission argues that the supervising judge erred when he relied
on certain federal case law interpreting the Federal Rules of Evidence in its decision in
favor of the OAG here. Instead, the Commission cites to various Pennsylvania cases
which have upheld the attorney-client privilege and “rejected efforts to narrow its scope
and application.” Commission’s Brief at 27 (citing Gillard v. AIG Ins. Co., 15 A.3d 44,
48-56 (Pa. 2011)). The Commission also cites federal case law that supports its position
that government officials should be encouraged to seek legal advice and enjoy the
confidential communication that accompanies that attorney-client relationship, in their
effort to uphold the law; the Commission argues that agency officials “must know the law
in order to comply with the law.” Commission’s Brief at 28-29 (citing In re: Grand Jury
Investigation, 399 F.3d 527, 534 (2d Cir. 2005) (“Upholding the privilege furthers a culture
in which consultation with government lawyers is accepted as a normal, desirable, and
even indispensable part of conducting public business.
Abrogating the privilege
undermines that culture and thereby impairs the public interest.”).
Finally, the Commission argues that “any public policy concerns in the federal
cases about affording evidentiary privileges to public officials are already allayed by
Pennsylvania’s well-recognized crime-fraud exception to privilege.” Commission’s Brief
at 30 (citing In re Investigating Grand Jury of Philadelphia County, 593 A.2d 402, 406-07
(Pa. 1991) (crime-fraud exception excludes from privilege communications made for
purpose of commission of crime or fraud)). Although the Commission denies that the
exception applies here, it states that its existence demonstrates that solutions exist to
whatever policy problems are perceived from recognizing privileges for Commonwealth
[J-2-2013] - 15
agencies; therefore, states the Commission, recognizing the attorney-client privilege in
this context does not permit agencies to hide from an OAG investigation.
The Pennsylvania Bar Association and the Philadelphia Bar Association filed a
joint amicus curiae brief in support of the Commission’s position, and in support of a broad
attorney-client privilege with few exceptions. The Associations argue that denial of the
privilege to government agencies and officials might deprive the government of essential
legal advice, and that it is in the public’s interest for high state officials to seek and act
upon legal advice. The Associations insist that objective judicial oversight of subpoenas
is especially important due to the political vagaries inherent in government investigations.
The Associations urge this Court to overrule the lower court’s “wholesale rejection of the
privilege in the government agency context,” and support a remand to the lower court with
instructions to conduct an in camera review of any privilege log submitted for purposes of
assessing whether the privilege applies to the documents at issue. In addition, the
Pennsylvania Association of Criminal Defense Lawyers filed an amicus brief in support of
the Commission, stating that, if the lower court’s decision were to stand, a lawyer whose
advice was sought by a state employee would have to advise that employee that the
attorney-client privilege did not apply to their relationship, in violation of various Rules of
Professional Conduct, and state and federal constitutional provisions regarding the right
to counsel.
In sharp contrast, the OAG argues that the Commonwealth should indeed have
unfettered access to the Commission’s communications with counsel, including access to
the Commission’s computer hard drives and server.
According to the OAG, the
attorney-client privilege and work product doctrine do not protect the records of a
Commonwealth agency from a grand jury subpoena. The OAG argues that application
of these protections to dealings between Commonwealth agencies and a grand jury, or
[J-2-2013] - 16
the OAG, would mean public entities could cloak their procedures in secrecy and evade
meaningful oversight of their operations. The OAG argues that evidentiary privileges
undermine the search for truth and, as such, the party asserting the privilege bears the
burden of proving it is applicable. The OAG states that there are no cases where a
Commonwealth agency successfully asserted the attorney-client or work product
privilege in response to a grand jury subpoena or request for records by the OAG, and it
rejects the Commission’s argument that it is entitled to invoke the privileges so that the
Commission may foster candor with its counsel without fear of disclosure. According to
the OAG, extending these privileges in this manner would harm the public interest
because government lawyers have additional obligations that set them apart from
privately retained counsel, including the duty to act in the public interest and rectify
wrongful official acts where necessary. OAG’s Brief at 8 (citing In re Witness Before
Special Grand Jury, 288 F.3d 289 (7th Cir. 2002) (in federal grand jury investigation no
attorney-client privilege exists between state office holder and state government lawyer)
and In re Grand Jury Subpoena Duces Tecum, 112 F.3d 910 (8th Cir. 1997) (White
House cannot invoke attorney-client privilege to withhold potentially relevant information
from grand jury inquiring into relationship of President Clinton and savings and loan and
land development corporations)).
The OAG further notes that the Commission’s general counsel and any outside
counsel retained by it are compensated by state dollars; therefore, it would be unseemly
to use those funds to permit a public official to conceal from the taxpayers otherwise
relevant evidence of wrongdoing. The OAG rejects the Commission’s argument that the
Commission stands alone as the “client” rather than the Commission as a Commonwealth
agency, asserting that the Commission is obviously not an entirely independent agency
answerable only to itself. In addition, the OAG argues that the comment to Professional
[J-2-2013] - 17
Rule of Conduct 1.13 does indeed address the representation of government agencies
such as the Commission, and states that “when the client is a governmental organization,
a different balance may be appropriate between maintaining confidentiality and assuring
that the wrongful act is prevented or rectified, for public business is involved.” Pa. R.
Prof. Conduct 1.13, Explanatory Comment 6. As the grand jury is inquiring into whether
the Commission itself violated criminal statutes, the OAG asserts that the “client” in these
circumstances – i.e., for the purpose of waiving the privilege – includes those with control
over the Commission, such as the General Assembly or the OAG itself. Indeed, argues
the OAG, the real “client” is the Commonwealth itself.
Finally, the OAG argues that it has broad statutory authority to access the
Commission’s books and papers under Section 732-208 of the CAA. The OAG asserts
that the Commonwealth’s authority in this regard is consistent with its ability to investigate
its own activities. The OAG states that it seeks communications between and among the
attorneys and staff of the Commission; according to the OAG, these are clearly “books
and papers,” and the Commission is clearly a Commonwealth agency. The OAG also
argues that the CAA specifically authorizes it to investigate and prosecute criminal
charges against state officials or employees affecting the performance of their public
duties. 71 P.S. §§ 732-205(a)(1), 732-206. The OAG states that the books and papers
provision of the CAA does not include any exceptions for materials that might be the
subject of the attorney-client or work product privileges, because such an exception
would irreparably harm the OAG’s ability to carry out its statutory duties of investigation
and prosecution. Last, in a point following from the essential nature of an investigating
grand jury, the OAG insists that it cannot provide useful search terms for the purpose of
creating a privilege log without compromising the integrity of its ongoing investigation.
[J-2-2013] - 18
III.
Discussion
We consider whether the supervising judge abused his discretion or committed an
error of law when he compelled the production of the requested material from the
Commission. Whether the attorney-client privilege or the work product doctrine protects
a communication from disclosure is a question of law.
See Levy v. Senate of
Pennsylvania, 65 A.3d 361, 367 (Pa. 2013); Kennedy, 876 A.2d at 943 n.3. This Court’s
standard of review over questions of law is de novo, and the scope of review is plenary.
Levy; Kopko v. Miller, 892 A.2d 766, 770 (Pa. 2006); Kennedy. To the extent our review
involves the construction of statutes, such as the CAA invoked by the OAG, and the
statutory privileges in the Judicial Code invoked by the Commission, our review likewise
is plenary, with our initial focus, as always, directed to the plain language of the
provisions. Commonwealth v. Hall, 80 A.3d 1204, 1211 (Pa. 2013).
Generally, evidentiary privileges are not favored, as they operate “in derogation of
the search for truth.” See, e.g., Commonwealth v. Stewart, 690 A.2d 195, 197 (Pa.
1997) (quoting Herbert v. Lando, 441 U.S. 153, 175 (1979)) (clergy-communicant
privilege).
See also Trammel v. United States, 445 U.S. 40, 45 (1980) (spousal
privilege); Commonwealth v. Bowden, 838 A.2d 740, 759 (Pa. 2003) (reporters’ “shield
law”);
In
re
Subpoena
No.
22,
709
A.2d
385,
388
(Pa.
Super.
1998)
(psychotherapist-client privilege). Nevertheless, the privileges exist where appropriate,
and they serve important interests. Although the attorney-client privilege “is deeply
rooted in the common law,” Commonwealth v. Chmiel, 738 A.2d 406, 414 (Pa. 1999),
several statutes now define the parameters of such privileges in this Commonwealth. In
both criminal and civil proceedings, the General Assembly has provided that “counsel
[J-2-2013] - 19
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.”
42 Pa.C.S. §§ 5916 (criminal
matters) and 5928 (civil matters). 10 With regard to the release of otherwise public
records held by Commonwealth agencies, the RTKL contains an express exclusion for
privileged documents.
65 P.S. § 67.102.
Thus, the General Assembly has
demonstrated, in a disclosure context, that it is able to make it clear when it intends that a
privilege should apply within a particular statutory regime. See also 50 P.S. § 7111(a)
(listing exceptions to confidentiality of mental health records; expressly protecting
privileged communications); 42 Pa.C.S. § 5913 (providing that spousal privilege applies
except in four specific circumstances).
By contrast, the books and papers provision of the CAA broadly provides that the
OAG – the chief enforcement officer demanding the documents in the case sub judice –
“shall have the right to access at all times to the books and papers of any Commonwealth
agency necessary to carry out his duties under this act.” 71 P.S. § 732-208. It is
undisputed that the Commission is a Commonwealth agency. 71 P.S. § 732-102 (under
CAA, “Commonwealth agency” is “any executive agency or independent agency”;
“independent agency” expressly includes Pennsylvania Turnpike Commission). See
also Commonwealth v. Merritt Chapman & Scott Corp., 248 A.2d 194, 196 (Pa. 1968)
(Turnpike Commission regarded as agency of Commonwealth); 36 P.S. § 652d (creating
Commission as “an instrumentality of the Commonwealth, and the exercise by the
10
There is no dispute that the grand jury investigation here is a “proceeding” for purposes
of the Commission’s privilege claim.
[J-2-2013] - 20
commission of the powers conferred by this act in the construction, operation and
maintenance of the turnpike shall be deemed and held to be an essential governmental
function of the Commonwealth”). The CAA does not provide an exception for allegedly
privileged material, and lists only one condition on the mandate of production: the
material sought must be “necessary” for execution of the OAG’s duties. We recognize
that the OAG has a broad array of duties involving Commonwealth agencies beyond
criminal investigations, and that the CAA is of correspondingly broad scope.
Nevertheless the authorization remains qualified only by what is “necessary.” In this
case, the OAG’s duties involve grand jury proceedings. In the context of the grand jury
investigation, the OAG has issued subpoenas for the books and papers of the
Commission, which is a Commonwealth agency.
The attorney-client privilege is intended to foster candid communications between
counsel and client, so that counsel may provide legal advice based upon the most
complete information from the client. Chmiel, 738 A.2d at 425. See also Levy, 65 A.3d
at 371 (purpose of privilege is to encourage clients to provide information freely to their
attorneys so attorneys can give sound and informed advice). The central principle is that
a client may be reluctant to disclose to his lawyer all facts necessary to obtain informed
legal advice, if the communication may later be exposed to public scrutiny. Chmiel, 738
A.2d at 425.
“Recognizing that its purpose is to create an atmosphere that will
encourage confidence and dialogue between attorney and client, the privilege is founded
upon a policy extrinsic to the protection of the fact-finding process.
The intended
beneficiary of this policy is not the individual client so much as the systematic
administration
of
justice
which
depends
on
[J-2-2013] - 21
frank
and
open
client-attorney
communication.” Investigating Grand Jury of Philadelphia County, 593 A.2d at 406
(internal citations omitted).
This Court recently reaffirmed the value of the privilege, albeit under very different
circumstances, in Gillard v. AIG, 15 A.3d 44; Gillard did not arise out of grand jury
proceedings and it did not involve government lawyers. The Gillard Court considered
whether the attorney-client privilege applied to attorney-to-client communications, which
were sought during discovery related to a bad faith claim against an insurer. In holding
that the privilege does extend to such communications made for the purpose of providing
professional advice, the Court nevertheless recognized the “ongoing tension between the
two strong, competing interests-of-justice factors in play – namely – the encouragement
of trust and candid communication between lawyers and their clients, . . . and the
accessibility of material evidence to further the truth-determining process.” Id. at 57
(citation omitted). See also Levy, 65 A.3d at 368 (attorney-client privilege is often in
tension with truth-determining process).
As a result of this tension, courts have recognized exceptions to the attorney-client
privilege. For example, if the legal advice sought from counsel is for the purpose of
committing a crime, the attorney-client privilege does not apply. See, e.g., Investigating
Grand Jury of Philadelphia County, 593 A.2d at 406 (attorney-client privilege does not
protect communications made for purpose or in course of commission of proposed crime
or fraud); Nadler v. Warner Co., 184 A. 3, 5 (Pa. 1936) (“When the advice of counsel is
sought in aid of the commission of crime or fraud, the communications are not
‘confidential’ within the meaning of the statute and may be elicited from the client or the
attorney on the witness stand.”); Rhone-Poulenc Rorer Inc. v. Home Indem. Co., 32 F.3d
[J-2-2013] - 22
851, 862 (3d Cir. 1994) (communications between client and attorney are protected from
disclosure but not if communication was made for purpose of committing crime or tort).
The Court has trenchantly recognized that no court should “permit it to be said that the
contriving of a fraud can form part of the professional occupation of an attorney or
solicitor.” Nadler, 184 A. at 5 (quoting Follett v. Jefferyes, 1 Sim. (N.S.) 1, 61 Eng. Rep.
1 (1850)).
Pennsylvania Rule of Professional Conduct 1.6, which generally mandates that
information revealed by a client to his or her lawyer remain confidential, likewise
recognizes that competing concerns and obligations require exceptions. As relevant
here, the rule provides:
b) A lawyer shall reveal such information if necessary to comply with the
duties stated in Rule 3.3 [relating to candor toward a tribunal].
(c) A lawyer may reveal such information to the extent that the lawyer
reasonably believes necessary:
*
*
*
*
(2) to prevent the client from committing a criminal act that the lawyer
believes is likely to result in substantial injury to the financial interests or
property of another;
(3) to prevent, mitigate or rectify the consequences of a client's criminal
or fraudulent act in the commission of which the lawyer's services are
being or had been used; or
(4) to establish a claim or defense on behalf of the lawyer in a
controversy between the lawyer and the client, to establish a defense to
a criminal charge or civil claim or disciplinary proceeding against the
lawyer based upon conduct in which the client was involved, or to
respond to allegations in any proceeding concerning the lawyer's
representation of the client . . . .
Pa. R. Prof. Conduct 1.6. See also Pa. R. Prof. Conduct 1.2(d) (“A lawyer shall not
counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal
[J-2-2013] - 23
or fraudulent, but a lawyer may discuss the legal consequences of any proposed course
of conduct with a client and may counsel or assist a client to make a good faith effort to
determine the validity, scope, meaning or application of the law.”).
Thus, it is clear that an attorney’s oath of office and ethical responsibilities require
fidelity to the court and the greater interests of justice, as well as to the client. Thus, a
“lawyer’s fidelity to the client does not extend to aiding and abetting a client in criminal
activities, . . . nor can the client have a legitimate expectation of such confidences.”
Commonwealth v. Maguigan, 511 A.2d 1327, 1335-36 (Pa. 1986) (citations omitted)
(attorney-client privilege did not preclude counsel from revealing possible whereabouts of
defendant who absconded while on bail and failed to appear for trial). See generally 42
Pa.C.S. § 2522 (“Before entering upon the duties of his office, each attorney at law shall
take and subscribe the following oath or affirmation before a person authorized to
administer oaths: ‘I do solemnly swear (or affirm) that I will support, obey and defend the
Constitution of the United States and the Constitution of this Commonwealth and that I will
discharge the duties of my office with fidelity, as well as to the court as to the client, that I
will use no falsehood, nor delay the cause of any person for lucre or malice.’ Any person
refusing to take the oath or affirmation shall forfeit his office.”).11
11
The Commission makes a tenuous argument that the existence of a crime-fraud
exception should allay any public policy concerns about affording evidentiary privileges to
public officials and employees in this context, because, when the privilege is invoked over
“materials that may fit the crime-fraud exception,” the party seeking the materials need
only make a prima facie showing that the exception has been met. Commission’s Brief
at 30 (citing Brennan v. Brennan, 422 A.2d 510 (Pa. Super. 1980) and In re Application of
Chevron Corp., 633 F.3d 153 (3d Cir. 2011)). But, this argument begs the question of
how the party seeking materials would know that particular items “might fit the crime-fraud
exception.” Notably, in this case, the supervising judge determined that the mechanism
proposed by the Commission – a privilege log with OAG-provided search terms – would
(continuedK)
[J-2-2013] - 24
Keeping in mind these well-established limitations on the attorney-client privilege,
borne of competing but lofty concerns, we must consider the special circumstances of this
case: the Commission – a constituent part of the Commonwealth, a Commonwealth
agency -- claims that it may invoke the privilege in order to avoid disclosure to the OAG
and a grand jury (rather than to the public at large) of communications to its lawyers,
related to its publicly-funded operation on behalf of the Commonwealth’s citizens. We
have not previously been squarely presented with this question, but the governing
principles, rules and caselaw, as well as relevant federal decisions, make it clear that our
holding should be shaped by the unique role of government lawyers who advise public
officials and agency employees, who in turn find themselves subject to grand jury
investigations. These facts present a unique context for considering the application of
the attorney-client privilege, which we have stated is designed to foster candid
communications between counsel and client – so that counsel can give legal advice
based upon the most complete information – without creating a situation where the client
might be reluctant to disclose all the necessary facts because the communication might
later be made public. See, e.g., Chmiel, 738 A.2d at 425. The difficulty presented here
is sensitive because the public deserves sound, legally supported decision-making by its
public officials and agency employees, but, in the context of investigative grand juries at
least, the public also deserves to know the information that these public servants
considered relevant to their decision-making process.
(Kcontinued)
unduly compromise the ongoing grand jury investigation into possible criminal activity
involving the Commission and related third parties. A prosecuting officer charged with
investigating crime is not obliged to tip his hand to those under investigation; thus, in light
of the nature of an investigative grand jury, the supervising judge’s point is well taken.
[J-2-2013] - 25
Pennsylvania’s Rule of Professional Conduct 1.13, see footnote 8, supra, applies
generally to lawyers who represent organizations as clients, and includes an explanatory
comment specifically related to governmental organizations that acknowledges the
special duties and responsibilities of government lawyers:
The duty defined in this Rule applies to governmental organizations.
Defining precisely the identity of the client and prescribing the resulting
obligations of such lawyers may be more difficult in the government context
and is a matter beyond the scope of these Rules. See Scope [17].[12]
Although in some circumstances the client may be a specific agency, it may
also be a branch of government, such as the executive branch, or the
government as a whole. For example, if the action or failure to act involves
the head of a bureau, either the department of which the bureau is a part or
the relevant branch of government may be the client for purposes of this
Rule. Moreover, in a matter involving the conduct of government officials, a
government lawyer may have authority under applicable law to question
such conduct more extensively than that of a lawyer for a private
organization in similar circumstances. Thus, when the client is a
governmental organization, a different balance may be appropriate
between maintaining confidentiality and assuring that the wrongful
act is prevented or rectified, for public business is involved. In
addition, duties of lawyers employed by the government or lawyers in
military service may be defined by statutes and regulation. This Rule does
not limit that authority.
12
The Scope of the Rules of Professional Conduct provides, in relevant part: “[17]
Under various legal provisions, including constitutional, statutory and common law, the
responsibilities of government lawyers may include authority concerning legal
matters that ordinarily reposes in the client in private client-lawyer relationships.
For example, a lawyer for a government agency may have authority on behalf of the
government to decide upon settlement or whether to appeal from an adverse judgment.
Such authority in various respects is generally vested in the attorney general and
the state's attorney in state government, and their federal counterparts, and the same
may be true of other government law officers. Also, lawyers under the supervision of
these officers may be authorized to represent several government agencies in
intragovernmental legal controversies in circumstances where a private lawyer could not
represent multiple private clients. These Rules do not abrogate any such authority.” 42
Pa.C.S., Rules of Prof. Conduct, Preamble and Scope (emphasis added).
[J-2-2013] - 26
Pa. R. Prof. Conduct 1.13, Explanatory Comment 6 (footnote and emphasis added). In
this way, the Rules acknowledge that the attorney-client privilege must be analyzed
differently in the government context than in the private sector. See also RESTATEMENT
(THIRD)
OF
LAW GOVERNING LAWYERS § 74 cmt. b (although attorney-client privilege
extends to communication with governmental organization as client, “narrower privilege
for governmental clients may be warranted by particular statutory formulations.
Open-meeting and open-files statutes reflect a public policy against secrecy in many
areas of governmental activity. Moreover, unlike persons in private life, a public agency
or employee has no autonomous right of confidentiality in communications relating to
governmental business.”); Nancy Leong, Attorney-Client Privilege in the Public Sector: A
Survey of Government Attorneys, 20 GEORGETOWN J.
OF
LEGAL ETHICS 163 (2007)
(suggesting paramount responsibility of government attorney is to work for public interest;
it is with public-spirited values of governmental transparency and openness that courts
should attempt to craft suitable tailoring of attorney-client privilege).
In granting the OAG’s motion to compel and denying the Commission’s motion for
protective order, Judge Feudale relied in part on federal cases that draw the same, salient
distinction. In Grand Jury Subpoena Duces Tecum, supra, the U.S. Court of Appeals for
the Eighth Circuit considered whether “an entity of the federal government may use the
attorney-client privilege to avoid complying with a subpoena by a federal grand jury,”
which was conducting a criminal investigation into matters related to, inter alia,
Whitewater Development Corporation, and the relationship of then-President Clinton and
Hillary Rodham Clinton to Whitewater. 112 F.3d at 915. The Office of Independent
Counsel filed a motion to compel the production of documents from the White House,
[J-2-2013] - 27
which the district court denied, but the decision was reversed on appeal and the privilege
was held not to apply. Although based on federal rules and common law, the Eighth
Circuit’s discussion of the parameters of the attorney-client privilege is useful here. The
court recognized that a prosecutor could not compel the notes made by a private lawyer
about a conversation with a private client about private matters. However, the court
stressed, documents created by White House lawyers implicate “the general duty of
public service [that] calls upon government employees and agencies to favor disclosure
over concealment.” Id. at 919-20.
We believe the strong public interest in honest government and in exposing
wrongdoing by public officials would be ill-served by recognition of a
governmental attorney-client privilege applicable in criminal proceedings
inquiring into the actions of public officials. We also believe that to allow any
part of the federal government to use its in-house attorneys as a shield
against the production of information relevant to a federal criminal
investigation would represent a gross misuse of public assets. . . .
Because agencies and entities of the government are not themselves
subject to criminal liability, a government attorney is free to discuss anything
with a government official – except for potential criminal wrongdoing by that
official – without fearing later revelation of the conversation. An official
who fears he or she may have violated the criminal law and wishes to speak
with an attorney in confidence should speak with a private attorney, not a
government attorney.
Id. at 921. The court also concluded that the work product doctrine was not available to
the White House under the circumstances. Id. at 925-26. See also United States v.
Arthur Young & Co., 465 U.S. 805, 817 (1984) (recognizing distinction between private
attorney and independent certified public accountant who certifies public reports that
depict a corporation’s financial status and thus assumes public responsibility
“transcending any employment relationship with the client”).
[J-2-2013] - 28
In related litigation, the D.C. Circuit Court of Appeals considered the question of
whether an attorney in the Office of the President, Deputy White House Counsel and
Assistant to the President, Bruce R. Lindsey, having been called before a federal grand
jury, could refuse, on the basis of a government attorney-client privilege, to answer
questions about possible criminal conduct by government officials and others. In re
Lindsey, 158 F.3d 1263 (D.C. Cir. 1998). “With respect to investigations of federal
criminal offenses, and especially offenses committed by those in government,
government attorneys stand in a far different position from members of the private bar.
Their duty is not to defend clients against criminal charges and it is not to protect
wrongdoers from public exposure. . . . Unlike a private practitioner, the loyalties of a
government lawyer therefore cannot and must not lie solely with his or her client agency.”
Id. at 1272-73. The court rejected the contrary argument that such communications with
government lawyers must be protected because government officials “need accurate
advice from government attorneys as much as private individuals do,” and would thus be
chilled in their ability to discuss legal problems honestly unless they know the discussions
are confidential. Id. at 1276. The court concluded instead that, when “government
attorneys learn, through communications with their clients, of information related to
criminal misconduct, they may not rely on the government attorney-client privilege to
shield such information from disclosure to a grand jury.”13 Id. at 1278. See also Lory A.
13
The court acknowledged that the President’s communications with counsel might be
protected by executive privilege, or that the President’s communications in his personal
capacity with his personal counsel, or through an intermediary, might indeed be
privileged. Lindsey, 158 F.3d at 1278-82. This distinction is analogous here, where
individual commissioners, or other agency employees, who had personally retained their
own private counsel – with their own funds – for advice as to their own personal liability or
(continuedK)
[J-2-2013] - 29
Barsdate, Note, Attorney-Client Privilege for the Government Entity, 97 YALE L. J. 1725,
1744 (1988) (“An absolute privilege for attorney-client communications in the government
context compromises both the logic of the evidentiary privilege and the important public
policy of openness in government affairs. Limitation of the attorney-client privilege in the
government context would preserve the absolute privilege for circumstances in which it
would promote attorney-client communications and aid in the administration of justice.”).
We find persuasive other federal decisions that have similarly concluded the
attorney-client privilege does not apply in this particular context – where the “client” is
actually the state government or its agency – as it normally applies in the private sector.
During a federal criminal investigation into corruption in the Illinois Secretary of State’s
office, a state government lawyer, Roger Bickel, Chief Counsel to then-Secretary of State
George Ryan, was faced with a grand jury subpoena seeking disclosure of
communications between himself and the Secretary; the Seventh Circuit held that the
attorney-client privilege did not protect those communications.
Witness Before the
Special Grand Jury, 288 F.3d at 294. The court recognized that it is a “special case”
when the attorney’s client is actually not a private individual or a corporation, but rather
“the State of Illinois itself, represented through one of its agencies.” Id. at 291. The
court rejected arguments that without privileged discussion between public officials and
government lawyers, officials might be unable to carry out policy objectives, or there
might be more legal violations and corruption in public office, or that absent such
protection, citizens might be unwilling to serve in public office at all. Writing for herself,
(Kcontinued)
criminal responsibility, might enjoy the benefit of the privilege. No question concerning
that scenario is presented here, and we offer no view upon the subject.
[J-2-2013] - 30
Chief Judge Flaum, and Judge Posner, Circuit Judge (now Chief Judge) Diane P. Wood
reasoned:
While we recognize the need for full and frank communication between
government officials, we are more persuaded by the serious arguments
against extending the attorney-client privilege to protect communications
between government lawyers and the public officials they serve when
criminal proceedings are at issue. First, government lawyers have
responsibilities and obligations different from those facing members of the
private bar. While the latter are appropriately concerned first and foremost
with protecting their clients—even those engaged in wrongdoing—from
criminal charges and public exposure, government lawyers have a higher,
competing duty to act in the public interest. Lindsey, 158 F.3d at 1273;
Comment to ABA Model Rule 1.13 (noting that government lawyers may
have higher duty to rectify wrongful official acts despite general rule of
confidentiality). They take an oath, separate from their bar oath, to uphold
the United States Constitution and the laws of this nation (and usually the
laws of the state they serve when, as was the case with [Chief Legal
Counsel Roger] Bickel, they are state employees). Their compensation
comes not from a client whose interests they are sworn to protect from the
power of the state, but from the state itself and the public fisc. It would be
both unseemly and a misuse of public assets to permit a public official to
use a taxpayer-provided attorney to conceal from the taxpayers themselves
otherwise admissible evidence of financial wrongdoing, official misconduct,
or abuse of power. Compare [United States v.] Nixon, 418 U.S. [683] at
713 [(1974)] (qualified executive privilege applies in the face of a criminal
investigation). Therefore, when another government lawyer requires
information as part of a criminal investigation, the public lawyer is obligated
not to protect his governmental client but to ensure its compliance with the
law.
Id. at 293 (footnote and parallel citation omitted).
The Seventh Circuit also recognized another important difference between a
government lawyer’s clients and those of private sector, privately-funded, personal
attorneys. “Individuals and corporations are both subject to criminal liability for their
transgressions. . . . A state agency, however, cannot be held criminally liable by either the
state itself or the federal government. There is thus no need to offer the attorney-client
[J-2-2013] - 31
privilege as an incentive to increase compliance with the laws. True, individual state
employees can be held liable, and many have been found guilty of crimes in this very
investigation. But the privilege with which we are concerned today runs to the office, not
to the employees in that office.” Id. at 293-94 (citations omitted).14
14
We are aware that another federal appeals court has a different view of the issue.
See, e.g., Grand Jury Investigation, 399 F.3d 527. During an investigation of the Office
of the Governor of Connecticut regarding receipt of gifts, the federal grand jury issued a
subpoena to the governor’s chief legal counsel, who asserted the attorney-client
privilege. The Second Circuit rejected the claim that the attorney-client privilege in the
government context is somehow “weaker than in its traditional form,” id. at 533, and
reversed the district court’s order compelling counsel’s testimony. The Second Circuit
relied on federal rules and common law, but also considered a specific provision of
Connecticut law that upholds the privilege in the government context:
We cannot accept the Government's unequivocal assumption as to where
the public interest lies. To be sure, it is in the public interest for the grand
jury to collect all the relevant evidence it can. However, it is also in the public
interest for high state officials to receive and act upon the best possible
legal advice. Indeed, the people of Connecticut have deemed the latter
interest more important than the former: if state prosecutors had sought to
compel George to reveal the conversations at issue, there is little doubt that
the conversations would be protected. The Connecticut legislature has
enacted a statute specifically providing that “[i]n any civil or criminal case or
proceeding or in any legislative or administrative proceeding, all confidential
communications shall be privileged and a government attorney shall not
disclose any such communications unless an authorized representative of
the public agency consents to waive the privilege and allow such
disclosure.” Conn. Gen. Stat. § 52-146r(b). The people of Connecticut,
then, acting through their representatives, have concluded that the public
interest is advanced by upholding a governmental privilege even in the face
of a criminal investigation.
399 F.3d at 534. Although Sections 5916 and 5928 of the Judicial Code codify the
privilege in criminal and civil cases, there is no corresponding statute in Pennsylvania that
specifically refers to government lawyers and that authorizes the protection that is
afforded in Connecticut.
[J-2-2013] - 32
This Court has also recognized that the attorney-client privilege runs to the benefit
of the client, see, e.g., Castellani v. Scranton Times, L.P., 956 A.2d 937, 951 (Pa. 2008).
However, in the circumstances of the instant case, the “client” is not simply the agency or
the individual employees of the agency, or the public officials themselves, but rather the
public, whose money funds their operations, and whom all of these individuals serve.
We recognize that the privilege has been held to protect communications between an
agency and its lawyers in different circumstances, such as when the Commonwealth
agency is involved in civil litigation with non-Commonwealth entities, for the benefit of the
Commonwealth itself. See, e.g., Ario v. Deloitte & Touche LLP, 934 A.2d 1290, 1294
(Pa. Cmwlth. 2007) (where insurance commissioner, as liquidator, sued insurer’s
accounting firm, defendant was not entitled to review privileged communications between
commissioner and general counsel); Sedat, Inc. v. Commonwealth, Dep’t of Envtl. Res.,
641 A.2d 1243, 1245 (Pa. Cmwlth. 1994) (memoranda prepared by agency attorney in
response to agency administrator’s request for legal advice were privileged and not
subject to disclosure to petitioners seeking mining permit). See also Levy, 65 A.3d at
372 (applying attorney-client privilege to protect certain public records from disclosure to
reporter under RTKL); Dages v. Carbon County, 44 A.3d 89, 93 (Pa. Cmwlth. 2012) (legal
research performed on behalf of county regarding county economic development project
was not public record subject to disclosure under RTKL at request of project’s opponent).
In such cases, it makes sense to protect the Commonwealth – to, in effect, “close ranks”
on behalf of the public – against the state’s opponents or potential opponents. See,
e.g., Levy, 65 A.3d at 382 (acknowledging legislative intent behind RTKL to shield some
[J-2-2013] - 33
items from disclosure in order to protect Commonwealth’s own security interests and
individuals’ privacy).
But, where the agency itself, its employees and officials, are being investigated by
the Commonwealth itself, in grand jury proceedings, through the office of the chief
enforcement officer of the Commonwealth, due to suspicion of wrongdoing, it is crucial to
be mindful that the actual client of the agency’s lawyers in such circumstances is the
public.
It follows that the only proper manner of considering the privilege in these
circumstances is that the client-citizenry has impliedly waived the attorney-client privilege
that might otherwise shield from revelation evidence of corruption and criminal activity.
To hold that the Commission itself is the client entitled to claim the privilege in the face of
a duly-authorized grand jury investigation by the Commonwealth government is
tantamount to concluding that the Commission is independent of the Commonwealth
government, is beholden only to itself and, although the Commission is ultimately funded
by the public through a variety of means established by the General Assembly, the
Commission need not account for its expenditures and operations to the
Commonwealth’s citizens, who are represented, in this instance, by the OAG. In our
view, this position obviously cannot prevail; thus, we hold that the supervising judge did
not err in determining that the attorney-client privilege does not preclude the production of
the documents sought by the OAG, nor does it entitle the Commission to the privilege log
screening process it proposed.15
15
Both the supervising judge below, and the OAG in its arguments to this Court, refer to
an additional basis for finding the privilege “waived” and inapplicable here. First, they
assert that because the General Assembly and the OAG itself are Commonwealth
entities – just as the Commission is a Commonwealth entity – they are the same “client”
(continuedK)
[J-2-2013] - 34
We stress, once again, that we recognize that the OAG has many duties besides
criminal investigations, and the broad books and papers authorization in the CAA
respecting Commonwealth agencies does not speak narrowly to the OAG’s investigative
powers. Nevertheless, by its plain and broad language, the unqualified (except for the
“necessary” proviso) power conferred is not made subject to an exception for the
attorney-client privilege. As our discussion above should make clear, there are sound
reasons, consistent with the purposes and limitations of the attorney-client privilege, why
the General Assembly properly would not authorize such an exception. Under these
circumstances, the supervising judge properly rejected the assertion of privilege.
Our rationale regarding the attorney-client privilege and its inapplicability to
communications between the Commission and its counsel, within the context of grand
jury proceedings, applies with equal force to the Commission’s claim of protection under
the attorney work product doctrine; the two concepts are closely related. See generally
Pa. R. Prof. Conduct 1.6, Explanatory Comment 3 (“The principle of client-lawyer
confidentiality is given effect by related bodies of law: the attorney-client privilege, the
work product doctrine and the rule of confidentiality established in professional ethics.
The attorney-client privilege and work product doctrine apply in judicial and other
(Kcontinued)
for purposes of waiving any attorney-client privilege. See, e.g., Pa. R. Prof. Conduct
1.13, Explanatory Comment 6 (“Although in some circumstances the client may be a
specific agency, it may also be a branch of government, such as the executive branch, or
the government as a whole. . . .”). Second, the supervising judge determined that the
General Assembly effectively waived the attorney-client privilege for agencies under the
OAG’s supervision when the OAG conducts grand jury investigations into agency
business, by its choice of language in the books and papers provision of the CAA, which
does not include any restrictions to access on the basis of a privilege. We need not
reach or consider the viability of these additional reasons for holding the attorney-client
privilege does not apply.
[J-2-2013] - 35
proceedings in which a lawyer may be called as a witness or otherwise required to
produce evidence concerning a client. The rule of client-lawyer confidentiality applies in
situations other than those where evidence is sought from the lawyer through compulsion
of law. The confidentiality rule, for example, applies not only to matters communicated in
confidence by the client but also to all information relating to the representation, whatever
its source. A lawyer may not disclose such information except as authorized or required
by the Rules of Professional Conduct or other law.”).
Under Pennsylvania’s Rules of Civil Procedure, the work product doctrine provides
that a party may obtain discovery of material prepared in anticipation of litigation or trial by
a party’s attorney, but discovery “shall not include disclosure of the mental impressions of
a party's attorney or his or her conclusions, opinions, memoranda, notes or summaries,
legal research or legal theories.” Pa. R. C. P. 4003.3. We have held that, to the extent
material constitutes an agency’s work product, it is not subject to compulsory public
disclosure pursuant to the RTKL. See, e.g., Lavalle, 769 A.2d at 459 (Pennsylvania
senators sought access under former Right to Know Act to report prepared by accounting
firm for PennDOT during course of litigation against that agency by contractor); City of
Pittsburgh v. Silver, 50 A.3d 296, 301 (Pa. Cmwlth. 2012) (Office of Open Records was
without authority to compel disclosure of information in attorney’s case file related to
litigation, including settlement negotiations).16
16
Although the majority opinion by Mr. Justice Saylor in Lavalle did not specifically adopt
a “deliberative process privilege” to support its holding in addition to the work product
doctrine, it did recognize that many jurisdictions view the work product doctrine as a
“subset of a broader group of principles concerned not merely with protecting deliberative
processes associated with litigation, but with insulating administrative agency deliberative
processes generally,” and “supported by policies concerned with facilitation of full and
free communication and exchange in agency operations and practice.” Lavalle, 769
A.2d at 457 (quoting from Commonwealth v. Vartan, 733 A.2d 1258, 1264 (Pa. 1999)
(plurality) (“The deliberative process privilege benefits the public, and not the officials who
(continuedK)
[J-2-2013] - 36
But, as we have already discussed supra, the RTKL provides as an express
exception from its definition of accessible public records those records which are
protected by a privilege, so that cases decided under that statute are inapt. 65 P.S. §
67.102. Moreover, the case sub judice does not involve a RTKL request, but rather a
grand jury subpoena issued by the OAG to a Commonwealth agency seeking discovery
of communications related to an investigation into the operations of that Commonwealth
agency, pursuant to the CAA books and papers provision. As stated, the only limitation
on production under Section 732-208 is that the Commonwealth agency’s books and
papers be “necessary” for the OAG to carry out its duties under the CAA; and that
limitation is not at issue. Finally, the supervising judge found no factual support for the
claim that the material requested is protected work product; he stated that there had been
no showing that the material represents the mental impressions of a party’s attorney or
his conclusions, opinions, memoranda, notes or summaries, or legal research and
theories.
In this case, the OAG apparently is conducting a grand jury investigation into
possible criminal violations by the Commission, its employees, and others having
(Kcontinued)
assert the privilege. The purpose for the privilege is to allow the free exchange of ideas
and information within government agencies. The privilege recognizes that if
governmental agencies were ‘forced to operate in a fishbowl, the frank exchange of ideas
and opinions would cease and the quality of administrative decisions would consequently
suffer.’”). See also Lavalle, 769 A.2d at 501-02 (Cappy, C.J., concurring) (would
expressly adopt deliberative process privilege because expanding scope of former Right
to Know Act to reach documents related to internal deliberative process of agency would
have “deleterious effect on the candor necessary for an agency to arrive at reasoned
decisions. Because of this chilling effect on the free exchange of ideas, the ultimate
conclusions drawn by the agency would not be as well informed.”). The deliberative
process privilege is not involved in this case.
[J-2-2013] - 37
business with the Commission. The CAA specifically authorizes the OAG to investigate
and prosecute criminal charges against Commonwealth officials or employees “affecting
the performance of their public duties or the maintenance of the public trust” and “persons
attempting to influence” those officials and employees.
71 P.S. §§ 732-205(a)(1),
732-206. The OAG contends that the material sought is necessary for its investigation,
and that a privilege log – based on search terms provided by the OAG – would
compromise the integrity of that ongoing investigation. The supervising judge, after an in
camera review of an offer of proof, agreed that the Commission’s proposed solution
would significantly compromise the grand jury’s investigation.17 Accordingly, we find no
error in the supervising judge’s determination that the requested production is necessary
as required under the books and papers provision of the CAA; we have not extended
work product protection to a request under that statute, and we remain unpersuaded that
the doctrine should apply given the circumstances of this case.
17
The Commission avers that there are “other solutions” to this problem, for example, the
OAG could itself “run search terms” over the electronic data, without disclosing those
search terms to the Commission, and then the Commission could review the results for
privilege and produce a privilege log, which may again be presented for in camera review.
Commission’s Brief at 31 n.19. The Commission’s amici, the Philadelphia and
Pennsylvania Bar Associations, likewise advocate for a process involving some degree of
court review in advance of disclosure. We have no record evidence with which to assess
the technological or practical viability of the Commission’s hypothetical solution, or
whether it was ever suggested to the court below. In any event, given our discussion
above, there is no basis in law to impose these external qualifications upon the OAG’s
right of access in this context, involving a Commonwealth agency.
[J-2-2013] - 38
Conclusion
We hold that the attorney-client privilege and work product doctrine do not apply to
preclude the OAG’s access to the documents it has requested pursuant to the grand jury
subpoenas issued in this case. We affirm the order of the supervising judge denying the
Commission’s motion for protective order.
Order affirmed.
Former Justice Orie Melvin did not participate in the consideration or decision of this case.
Messrs. Justice Eakin and Baer, Madame Justice Todd and Mr. Justice McCaffery join
the opinion.
Mr. Justice Saylor files a concurring opinion.
Mr. Justice Baer files a concurring opinion in which Madame Justice Todd joins.
[J-2-2013] - 39
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