Attenuation of the Attorney-Client Privilege
In
June 08, 2015 at 02:14 PM
6 minute read
In One Beacon America Insurance v. Philadelphia Indemnity Insurance, No. 2012-cv-4490 (April 13, 2015, Lackawanna CCP), the Lackawanna County Court of Common Pleas held that the plaintiff insurance company's inadvertent disclosure of an intra-office memorandum, referred to as a case conference sheet, was not privileged and therefore did not open the door to a subject-matter waiver of attorney-client privilege, despite the fact that it revealed sensitive communications from the plaintiff's attorney.
While the opinion thoroughly analyzed the attorney-client privilege as presented in the Superior Court's Nationwide Mutual Insurance v. Fleming, 924 A.2d 1259 (Pa.Super. 2007), decision, and presented a very detailed discussion of the four factors that must be satisfied before communication becomes protected by the attorney-client privilege, I was troubled by the fact that the court ultimately held that the case conference sheet, which contained communication from One Beacon America Insurance's attorney to, presumably, a One Beacon claims adjuster was not protected by attorney-client privilege.
By way of background, an attorney did not prepare the case conference sheet at issue. Additionally, its author apparently was not identified in the litigation, so we can only speculate as to how close the unidentified author was to the actual conversation between attorney and client. However, the case conference sheet was, for all intents and purposes, an outline and summary of the underlying controversy between the parties and included the following two sentences, which the court deemed were not privileged: “Defense counsel … reviewed the agreement and he advised that the licensed areas were the ballroom and stage and not the elevators. He felt that a tender might not be successful but that it was worth a try and that we might want to consider a Dec action if not accepted.”
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