Lawyers need to know the differences between ethics rules.

I am a young attorney and I don't understand the difference between the confidentiality rules and the Attorney-Client Privilege Rules and the Work Product Doctrine. What is the difference?

Samuel C. Stretton.

The answer is fairly straightforward. All lawyers in Pennsylvania have to comply with the Rule of Confidentiality, which is a very broadly written rule. That rule is found in Pennsylvania Rules of Professional Conduct, Rule 1.6. In essence, it states a lawyer cannot reveal information relating to the representation of a client unless the client gives informed consent. It is a very broad privilege and far broader than just confidences and secrets. For example, if a client told the lawyer that he was arrested in Alaska 20 years ago, the lawyer could not reveal that fact since the lawyer learned that as part of the representation. Even though in Alaska, the information would be part of the public record, the Pennsylvania Rule of Confidentiality is far more broader than just confidences and secrets.

There is a statutory attorney-client privilege in Pennsylvania found at 42 Pa.CSA 5928 for civil cases. That reads as follows: “In the 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.”

The statutory attorney-client privilege is very limited and deals only with confidence and secrets. Further, the statute doesn't cover the situation of a lawyer communicating with a client; it is only the other way.

In criminal matters, the attorney-client privilege statute is found at 42 Pa.CSA 5916. That statute notes as follows: “In the criminal proceeding, counsel shall not be competent or permitted to testify to confidential communications made to him by his client, nor should the client be compelled to disclose the same, unless in either case the privilege is waived upon trial by the court.”

The Pennsylvania Supreme Court in 2011, in the case of Gillard v. AIG Insurance, 15 A.3d 44 (Pa., 2011), held that the attorney-client privilege operates in a two-way fashion to protect confidential information by the client to the attorney and also the confidential information of the attorney to the client. This is true if the communications were made for the purpose of attaining or providing professional legal advice. This decision broadened the statutory attorney-client privileges. Rule 1.6 is still far broader in its scope. There is a distinct difference between Rule 1.6 confidentiality and the statutory attorney-client privileges. When a lawyer asserts the attorney-client privilege, they should assert both the privilege and the Rule of Confidentiality.

The third area of privilege is what is called the Work Product Doctrine. That essentially is set forth in Pennsylvania Rules of Civil Procedure, Rule 4003.3. This precludes the production of “the mental impressions of a party's attorney or his conclusions, opinions, memoranda, notes or summaries, legal research or legal theories.” When asserting the Work Product Doctrine, one should also assert attorney-client privilege and the Rule of Professional Conduct 1.6 since there is often an overlap.

It is a lawyer's duty to assert the attorney-client privilege. But in asserting the privilege when dealing with work product, every lawyer should remember that the Rule of Professional Conduct is the far broader rule and one that provides the most protection. That should always be evoked. The statutory attorney-client privilege is really an evidentiary issue. Rule 1.6 is far broader and is really a regulatory or ethics rule preventing disclosure of anything pertaining to the representation.

In conclusion, the above doctrine and rules all involve confidentiality of various degrees. It is important that lawyers recognize the differences and distinctions. But it is the duty of every attorney to be very protective of the attorney-client privilege and assert it. This is not a self-enforcing privilege; the lawyer and the client have to raise confidentiality and the privilege to protect the privacy and confidences of the client.

Pennsylvania's own John G. Johnson provides great inspiration for the modern lawyer.

What insights can great lawyers from the past provide to help the modern practice of law?

The question is interesting since only rarely in modern times do members of the bar look to the leaders of past generations for guidance and advice. But a review of the life of John G. Johnson provides some interesting thoughts and ideas. Johnson was probably the greatest lawyer Pennsylvania ever produced. The son of a blacksmith who had a brilliant legal mind, he received his initial legal training in the law office of Benjamin Rush, the grandson of the famous Revolutionary War doctor. He practiced law in Pennsylvania from 1863 until his death in 1917.

What is interesting about Johnson, or perhaps what can be gained from him, is that he lived and worked in a great period of transition in the legal world. The transition was from small-based general practice firms to larger firms devoted to representing corporations and businesses. The world changed dramatically as typewriters replaced the Scriver and as the telephone began to be used. These changes occurred in the late 1890s. Lawyers started to specialize, larger firms began to develop and technology changed the way law has been practiced for hundreds of years.

Johnson learned his law by reading in the Rush offices. He then attended—for about one to one-and-a-half years—the University of Pennsylvania Law School. That school had just been created out of the merging of the College of Philadelphia that had been located at 4^th and Arch streets with the University of Pennsylvania which had been known as State House Square in Center City.

Johnson became probably the most distinguished member of the bar in Philadelphia and Pennsylvania in the late 1880s through early 1900s until his death in 1917. Johnson, although an extremely vigorous and effective advocate, believed strongly in the professionalism of the bar. He took great pride in the traditions of the Philadelphia bar. As a result, he spent a great deal of time with young lawyers and law students. He was available to discuss issues with them, give them advice and encourage them as they began the legal practice. Johnson recognized the need to install a clear sense of professionalism and need to install the desire to help other members of the bar within those young members. Obviously, that's a lesson that could be renewed today.

Johnson was also known for his civility and courtesy in the courtroom. Though a vigorous advocate, he treated his opponents with respect and became friends with many of his adversaries.

One of the endearing stories about Johnson was his representation of a young lawyer named William Gray. William Gray later in the 1920s, 1930s and 1940s, became one of the most prominent criminal lawyers in Philadelphia. He was also at one point counsel to the Securities & Exchange Commission (SEC). This writer remembers Gray, who passed away in 1974, and he was at the end of his distinguished career. Gray had been held in contempt as a young Assistant District Attorney and Johnson represented him without charge. Johnson was successful in having the contempt matter resolved informally and dismissed. He did so to help a promising young attorney.

Johnson himself was never directly involved in politics. But he represented many office holders and political people. He was offered appointments in the U.S. Supreme Court and as the U.S. Attorney General, but Johnson chose not to accept these appointments. His love was helping people and representing people in many diverse areas of the law.  But Johnson evolved his law practice not only from representing all areas of law, but to specializing in corporate and business representation. At the time his death, his associates formed the basis for the modern law firm of Saul Ewing Arnstein & Lehr.

Of interest, perhaps in those who are faced with the challenges of the modern informational and technological age, Johnson refused to use a telephone in his law office. His reason had nothing to do with technology, but how it would interrupt his ability to focus. Johnson handled an unbelievable number of diverse cases and worked night and day in his practice. He had hobbies such as his wonderful art collection that now forms a major basis of the Philadelphia Art Museum's collection, he loved going to baseball games and cricket matches. But other than these, his time was spent working and practicing law. He was not one to go to too many social or society events. He saw the telephone as an instrument that would interfere with his focus and preparation.

Modern lawyers who are constantly bombarded by emails, text, internet and, of course, the telephone, know fully the concern of Johnson. Johnson saw many clients each day, but was able to get a lot of work done. Most modern lawyers have admitted that they can't get any work done during the day and have to work late at night or on weekends because they are constantly interrupted by phone calls. And now they also need to respond to numerous unwanted and unnecessary emails. One of Johnson's major corporate clients insisted he have one telephone line in his office just so they could talk to him and Johnson did acquiesce, but not otherwise. When he died in 1917, he still did not have a telephone. Perhaps his wisdom might apply to lawyers who are currently overwhelmed with many useless emails and other forms of communication.

Johnson was a firm believer that ethics had to go with eloquence as a professional lawyer. Good manners were paramount to him.  Johnson agreed with the concept of entire devotion to one's client and defense of the client's rights and the exertion of the lawyer's knowledge and ability to aid a client's cause.

But Johnson also believed in screening cases. He was always truthful with his clients as to the merits or lack of merits. He would not take cases if the case had no real merit even if the client insisted to the contrary.

One thing Johnson did know were the lawyers in Pennsylvania. Colleagues at the time were amazed with his knowledge of lawyers both in Philadelphia and throughout the commonwealth and even in other states.

Johnson's life exhibits a high degree of professionalism and dedication to the legal profession. That dedication was not only excellent representation of clients, but congeniality among all lawyers and desire to help and aid younger attorneys.  Johnson also spent a great deal of time on pro bono work.

Johnson lived during a time of changing technology, but he also recognized that just because technology exists doesn't necessarily improve one's legal performance. This is a critical element that might be considered in the modern world as technology overwhelms everyone. The career of Johnson provides a strong role model for all members of the bar in terms of how to run a law practice. He also provides a model as to how a law firm can change, as Johnson's did, but still maintain the essence of professionalism and service to one's clients.

Chester County lawyer Samuel C. Stretton has practiced in the area of legal and judicial ethics for more than 35 years. He welcomes questions and comments from readers. If you have a question, call Stretton directly at 610-696-4243 or write to him at 301 S. High St. P.O. Box 3231, West Chester, Pennsylvania, 19381.