A litigant who asserts attorney-client privilege before trial may not unfairly surprise their adversary by waiving that privilege on the stand, a deeply split Pennsylvania Superior Court en banc has ruled, reaching the same conclusion arrived at by a divided three-judge panel in 2016.

In December 2016, the original panel, addressing an issue of first impression, ruled 2-1 in Gregury v. Greguras that a defendant who asserted her attorney-client privilege during the discovery phase in a dispute over a will should not have been allowed to waive that privilege once the case got to trial.

The court granted rehearing en banc in January 2017 and on Sept. 20 of this year issued its decision, voting 5-4 to reverse a decision from the York County Court of Common Pleas, which had denied a motion by the plaintiffs seeking either a mistrial or an extension of the discovery period after the defendant announced at trial she would be waiving the privilege.

“An eleventh-hour waiver has considerable potential to create unfair surprise and prejudice to the other party, and it is the role of the trial court to prevent it by reasonable means,” Judge Mary Jane Bowes wrote for the majority.

The case stems from a dispute between plaintiffs John Gregury and Barbara Robey, the children of decedent Adolf Greguras, who was married to Shirley Greguras. Shirley Greguras had worked with attorney James Yingst of Guthrie, Nonemaker, Yingst & Hart to prepare a will for Adolf Greguras. The plaintiffs contended that Shirley Greguras and Yingst “committed some sort of fraud or breach of duty” that prevented them from accessing assets they believed Adolf Greguras intended to leave for them.

The case proceeded to trial on claims including fraud and intentional infliction of emotional distress. According to court documents, after the defendants' opening statement, defense counsel indicated that Shirley Greguras intended to waive her attorney-client privilege at trial.

The plaintiffs made a motion for mistrial or a delay to allow for additional discovery, but the trial court denied the motion, saying, “The privilege was [Shirley Greguras'] to invoke or waive at trial.”

At the end of the plaintiffs' case the trial court granted a motion to dismiss the suit.

On appeal, the plaintiffs contended the late waiver of privilege made cross-examination extremely problematic, and would allow her to “concoct any claim of previously undisclosed privileged discussions, free of any risk of rebuttal.”

The court en banc sought guidance based on how Pennsylvania courts have dealt with similar privilege issues, such as the last-minute waiver of a previously invoked Fifth Amendment privilege in a civil case and the last-minute waiver of the physician-patient privilege in a medical malpractice case.

“Although the propriety of a voluntary last-minute waiver of the previously invoked attorney-client privilege appears to be a question of first impression in this commonwealth, our courts have taken a dim view of the manipulation of privilege in other circumstances,” Bowes said.

And as the original three-judge panel had done, the court en banc also looked at how other courts have addressed the last-minute waiver of attorney-client privilege.

Bowes noted that the Washington State Court of Appeals and a federal district court in Florida both prohibited the tactic.

“Herein, the trial court failed to appreciate the prejudice to appellants from Shirley's last-minute waiver of the privilege,” Bowes said. “If it had, we believe it could have alleviated the prejudice without declaring a mistrial. The trial court could have precluded appellees from introducing at trial the communications that were the subject of the earlier exercise of the privilege, or alternatively, briefly halted the proceedings to permit limited discovery of Shirley and attorney Yingst. The trial court's failure to acknowledge the unfair surprise and remedy its prejudicial impact upon appellants' trial strategy, their ability to effectively cross-examine appellees, and the testimony of appellants' expert, requires a new trial.”

Bowes was joined by Judges John Bender, Jacqueline Shogan, Judith Ference Olson and Victor Stabile.

Judge Paula Francisco Ott penned a dissenting opinion, joined by President Judge Susan Peikes Gantman and Judges Anne Lazarus and Alice Dubow.

“While the majority provides a thoughtful analysis of at-trial waiver of the attorney-client privilege, I believe the trial court did not abuse its discretion in denying the motion for mistrial in light of 42 Pa.C.S. Section 5928, which permits the privilege to be waived 'upon the trial by the client,' and the circumstances of this case,” Ott said.

Ott argued that “it was reasonable that [Shirley Greguras] would waive her privilege, if at all, only when appellants' counsel argued to the jury in his opening statement that appellees 'exercised attorney/client privilege inconsistently in their depositions' and the jury 'could consider that in assessing [appellees'] credibility.'”

“Under these circumstances, counsel's own trial strategy cannot create 'unfair surprise,'” Ott said.

Ott further contended that counsel for Gregury and Robey should have anticipated that Shirley Greguras might waive her privilege at trial.

“Given appellants' counsel's belief there were 'irregular' assertions of the privilege in discovery and his trial strategy to attack appellees' credibility, and in light of Section 5928 that allows waiver of the privilege 'upon the trial,' appellants' counsel had every reason prior to trial to file a motion in limine to preclude Shirley's waiver of the attorney-client privilege at the time of trial,” Ott said. “He did not do so.”

Andrew W. Barbin, who represented the plaintiffs, said in a statement: “Pending further action by our Supreme Court, if any, plaintiffs will receive all they ever wanted, an opportunity for their claims to be heard by a jury of their peers to determine justice and provide closure.”

Edwin Schwartz of Marshall Dennehey Warner Coleman & Goggin, who represented Yingst, did not return a call for comment.

(Copies of the 48-page opinion in Gregury v. Greguras, PICS No. 18-1185, are available at http://at.law.com/PICS.)