Ellen C. Brotman of Brotman Law.

At least once or twice a day, after I press the “send” button, I get a panicky feeling that I've made a mistake and there is no going back. Did I send to the right people? Did I attach the right document? Or even worse—did I waive an important privilege? BouSamra v. Excela Health, —A3d No. 5 WAP 2018 (Pa., June 18, 2019), a recent opinion from the Pennsylvania Supreme Court,  may hold the answer to this last question.

The case began when Dr. George BouSamra, a cardiologist, filed suit against his former employer Excela for defamation and interference with prospective and actual contractual relations. Excela owned the hospital where BouSamra worked. When Excela performed a peer-review study of BouSamra's practice they found that over 100 patients had possibly received medically unnecessary procedures. In response to these findings, Excela hired both outside counsel and a public relations firm to help manage the potential negative publicity. During the course of the representation, Excela's outside counsel emailed legal advice to Excela's general counsel. Excela's general counsel then forwarded that email to the public relations firm and other employees at Excela. A few days after the email was sent, Excela held a press conference and disclosed the results of the peer review studies. Litigation followed and the email from outside counsel to in-house counsel to the public relations consultant was sought by BouSamra. Excela claimed that the email was protected by the attorney work-product doctrine and the attorney client privilege.

The lower courts held that the email was discoverable, reasoning that its disclosure to a third party waived attorney-client privilege, because that third party was not an agent of the lawyer assisting in the provision of legal advice. On the work-product issue, the Pennsylvania Superior Court relied on the fact that the email was in the client's possession and not in the attorney's file and therefore was a document that belonged to the client and not to either in-house or outside counsel.

The Supreme Court granted allocatur to consider two issues:

• Did the Superior Court commit an error of law when holding that a client waives the work-product protection of its counsel's pre-litigation email by forwarding the email to its public relations consultant?

• Did the Superior Court commit an error of law when holding that, to qualify as a privileged person within the attorney-client privilege, a third party must provide legal advice and have the lawyer or client control its work?

The court recognized that this was a case of first-impression as it had not yet “articulated the proper analysis for waiver of the attorney work product doctrine in Pennsylvania.” Reasoning that the contours of the waiver of a rule must align with the purposes of a rule, the court began its analysis with the text of the rule itself; Pennsylvania rule of Civil Procedure 4003.3, protects against “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. With respect to the representative of a party other than the party's attorney, discovery shall not include disclosure of his mental impressions, conclusions or opinions respecting the value or merit of a claim or defense or respecting strategy or tactics.” The court also cited to the explanatory comment which states: “the essential purpose of the rule is to keep the files of counsel free from examination by the opponent … .”

The court then held that the purpose of the work product doctrine is to protect the mental impressions and processes of an attorney acting on behalf of a client, regardless of whether the work product was prepared in anticipation of litigation. This is, as the court recognized, both a new interpretation and a significant departure from the federal rule. To justify its interpretation, the court noted, that Rule 4003.3 uses the phrase “even though prepared in anticipation of litigation or trial” as a term of inclusion, not exclusion. In contrast, Federal Rule 26(b)(3)(A) explicitly states “a party may not discover documents and tangible things that are prepared in anticipation of litigation.”The court also found that both the text of the rule and cases interpreting it make clear that the doctrine is not founded on a need to protect a confidential relationship, and that cases that require the maintenance of confidentiality as a condition to application of the work product doctrine are improperly conflating the attorney-client privilege with the work-product doctrine.

Considering this analysis, the court, closely following the language of Restatement 3d of the Law Governing Lawyers, Section 91(4) (2000), held that “as the purpose of the doctrine must drive the waiver analysis, we hold that the work product doctrine is waived when the work product is shared with an adversary or disclosed in a manner which significantly increases the likelihood that an adversary or anticipated adversary will obtain it. This waiver rule comports with the prevailing view in state and federal courts across the country, and the rule's fact-intensive structure requires evaluation on a case-by-case basis.”

The court had examined the email at issue in camera and determined that it was attorney work-product. The next question was whether the protection of Rule 4003.3 had been waived. On this point, the court remanded with instructions to determine whether sending attorney work product to a public relations consultant “significantly increased the likelihood that an adversary or potential adversary would obtain it.” As the court noted, the measure of this likelihood depends, at least partially, on whether, under all the existing circumstances, the disclosing party had a reasonable belief that the recipient could keep a secret!

Both Justice Christine Donohue and Justice David Wecht joined in the majority opinion but also wrote concurring opinions on the work-product doctrine. Donohue, in an opinion joined by Justices Debra Todd and Kevin Dougherty, disagreed with the position that an analysis of the scope of the doctrine was a prerequisite to determining the scope of the waiver and termed that portion of the opinion dicta. Donohue also objected to the expansion of the doctrine to cover materials not prepared in anticipation of litigation. However, Donohue agreed with the test set forth by the court for determining whether waiver occurred but opined that the manner of disclosure and the precautions taken to protect the information should be a “focus” of the determination. Wecht also wrote a concurring opinion in which he warned the lower courts not to adopt a “less forgiving analysis” that would approach “the strict rule applicable to waiver of attorney-client privilege …” Wecht feared that such an approach would chill the sharing of work-product that is often necessary in the practice of law.

On the issue of attorney-client privilege, all three opinions agreed that the disclosure of in-house counsel's email to a public relations firm waived the privilege. While recognizing that authority exists for extending the privilege to certain agents of the attorney, the court found that the consultant was not an agent of either in-house counsel or outside counsel. The court distinguished United States v. Kovel, 296 F.2d 918 (2d Cir.) which held that an accountant hired by a defense lawyer to assist with the interpretation of tax principles was within the attorney-client privilege. In Kovel, the U.S. Court of Appeals for the Second Circuit found that this assistance was necessary to the provision of legal advice to the client and was therefore covered by the privilege. Because the transmission of the email to the consultant here was not necessary to obtaining legal advice from either in-house or outside counsel, the consultant did not fall within the agency relationship approved by Kovel and similar cases. See, e.g., United States v. Alvarez, 519 F.2d 1036, 1046 (3d Cir. 1975) (“We see no distinction between the need of defense counsel for expert assistance in accounting matters and the same need in matters of psychiatry. The effective assistance of counsel with respect to the preparation of an insanity defense demands recognition that a defendant be as free to communicate with a psychiatric expert as with the attorney he is assisting.”).

The court did not hold that a public relations consultant could never be an agent of the attorneys who would fall within the attorney-client privilege, but it did state that “such situations must remain narrowly tailored, as evidentiary privileges remain highly disfavored in Pennsylvania.” Compare In re Grand Jury Subpoenas Dated March 24, 2003, 265 F. Supp 2d. 321, 323 -24 (S.D.N.Y. 2003) (lawyers who hired a public relations firm to assist them in generating favorable publicity during a high-profile grand jury investigation in order to lessen pressure on the prosecutors to secure an indictment did not waive privilege.).

Another question left open by the court was whether transmission of the email to an internal Excela employee in the public relations department could also waive the privilege. On this point, the court, said: “In any event, evaluating this argument is a fact-intensive exercise because a court would be required to determine whether each individual included on the email was a director, officer or other employee permitted to act on the corporation's behalf.” See Yocabet v. UPMC Presbyterian, 119 A.3d 1012, 1028 (Pa. Sup. Ct. 2015) (“A corporation is a creature of legal fiction, which can act or 'speak' only through its officers, directors or other agents. Where a representative for a corporation acts within the scope of his employment or agency, the representative and the corporation are one and the same entity, and the acts performed are binding on the corporate principal.”). This open question provides a warning to in-house counsel to be thoughtful when sharing attorney-client communications with employees.

While the court in BouSamra left open certain questions, it answered others clearly: In Pennsylvania the attorney work-product doctrine broadly protects an attorney's files, mental impressions and strategies, whether prepared in anticipation of litigation or not. Disclosure of attorney work-product must be done in a manner that clearly seeks to protect its confidentiality. Also, attorneys consulting with experts and consultants should make sure the engagement is between the attorney and the consultant and understand that only those disclosures necessary to the provision of legal advice are sure of protection.

And, of course, always—think twice before hitting the send button!

Ellen C. Brotman, of Brotman Law in Philadelphia, represents individuals before licensing boards, providing effective, caring and efficient assistance. She has served as an assistant federal defender in Philadelphia and practiced in small, medium and large firms with a focus on criminal defense, appellate advocacy, professional responsibility and ethics.