Sarah Hart Charette

Throughout the course of medical malpractice cases, depositions are a key component of the process of discovery. In these cases, it is common practice for defense counsel to seek the depositions of family members of named plaintiffs. These depositions can provide crucial information regarding firsthand knowledge of the medical treatment at issue as well as illuminating evidence regarding causation and alleged damages.

Through common courtesy, the scheduling of these depositions is often coordinated with plaintiffs' counsel. Frequently, defense counsel will identify the family members of which they are seeking the depositions, and will contact plaintiffs counsel regarding the availability of these individuals, as well as counsel. At that point, plaintiffs counsel will usually confirm availability of the individuals and facilitate the scheduling of depositions. However, for some, the association by plaintiffs counsel does not end there.

Plaintiffs counsel often seeks to extend the involvement further by identifying the family members as their clients as well through the course of the case. This identification as a client is proffered by counsel despite the fact that the family members are not a named party in the case and the family members have no liability in connection with the matter. Plaintiffs counsel then seeks to stretch attorney client privilege to cover conversations that the attorneys have with these family members, conversations that the attorneys have with their clients while these family members are present, and even conversations that these family members have with the client outside of the presence of the attorney. How far can the privilege be stretched until it breaks?

In support of their assertions of attorney-client privilege to protect these types of communications, plaintiffs' counsel reference Pennsylvania statute protecting confidential communications to attorneys. “In a civil matter, 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.A. Section 5928. Four elements must be satisfied in order to successfully invoke the protections of attorney-client privilege: the asserted holder of the privilege is or sought to become a client; the person to whom the communication was made is a member of the bar of a court, or his subordinate; the communication relates to a fact of which the attorney was informed by his client, without the presence of strangers, for the purpose of securing either an opinion of law, legal services or assistance in a legal matter, and not for the purpose of committing a crime or tort; and the privilege has been claimed and is not waived by the client. Commonwealth v. Mrozek, 657 A.2d 997, 998 (Pa.Super.  1995) (citation omitted).

The public policy purpose of the attorney-client privilege is to foster the free and open exchange of relevant information between a client and his/her attorney, as in Gillard v. AIG Insurance, 15 A.3d 44, 47 (Pa. 2011).  While such a purpose is highly regarded, it is not without its limits. To permit attorney-client privilege to go unchecked would provide the opportunity for abuse. As a result, Pennsylvania case precedent is ripe with 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.”

Furthermore, Pennsylvania case precedent has clearly held that a party waives attorney client privilege by disclosing a protected communication to a third party because such a disclosure has long been considered inconsistent with an assertion of the privilege, see Serrano v. Chesapeake Appalachia, 298 F.R.D. 271, at 281 (W.D. Pa. 2014).  Such a waiver can even be done through a communication between a party and their attorney, if such a communication is done in the presence of the third party, as in In re Beisgen's Estate, 128 A.2d 52, at 54 (Pa. 1956).

To circumvent this waiver issue, plaintiffs counsel also identify the family member as a client and assert that joint-client privilege applies to such communications, see In re Teleglobe Communications, 493 F.3d 345, at 363 (3rd Cir. 2007). An attorney can serve multiple clients on the same matter as long as there is no substantial risk of the attorney being unable to fulfill his duties to each client and all the clients consent to the joint representation. “When co-clients and their common attorneys communicate with one another, those communications are 'in confidence' for privilege purposes.” That privilege thereby protects the communications from compelled discovery to individuals outside of the joint representation. The consent of all joint clients is required for the waiving of the joint-client privilege. (citing Restatement (Third) of the Law Governing Lawyers Section 75(2).

However, as explicitly identified by the court in Teleglobe, clients of the same lawyer that share a common interest are not necessarily considered co-clients. There is a distinct difference between joint-clients (otherwise identified as co-clients), and situations involving individuals who merely have allied interests with a litigation that are cooperating with the client and the client's attorney. As identified in Gillard, there is a limitation on attorney client privilege as it encroaches on undermining access to information in furtherance of the truth-determining process.

From a defense perspective, a family member of the plaintiff that is not a proper named party to an action has no claim forged against them and they do not have any standing to raise a claim in a matter. A family member's only involvement in a litigation, beyond providing information and evidence in support of discovery, is limited to having the allied interest for the plaintiff to be compensated. Therefore, defense counsel would argue that such an interest cannot be stretched or distorted into being recognized as a co-client when they are not a named party to the suit. Plaintiffs counsel would argue that such representation is at the heart of the public policy purpose of attorney-client privilege. It will be up to the Pennsylvania courts to make the final decision.

Sarah Hart Charette is an experienced associate in Gross McGinley's litigation group. She has an extensive background in trial preparation and litigation as a member of the medical malpractice defense and criminal defense teams, as well as her prior position as an assistant district attorney.