Kevin P. Allen of Eckert Seamans Cherin & Mellott

The Pennsylvania Superior Court recently has had its struggles and challenges with attorney-client privilege issues. Those struggles continue with Corey v. Wilkes Barre Hospital, 2019 PA Super 288, (Sept. 23, 2019).

The result in Corey is likely the result of a bad facts/bad law dynamic. The bad facts are that Lesley Corey had decided to file for a divorce from her husband, Joseph Corey. She hired a lawyer who filed a divorce complaint on her behalf. The complaint stated that the Corey marriage was irretrievably broken with no hope of reconciliation. Six months later, while the divorce proceedings were still pending, Joseph Corey died.

Lesley Corey then hired new lawyers and filed a wrongful death/medical malpractice action against Wilkes Barre Hospital in relation to Joseph Corey's demise. In that action, she included a loss of consortium claim, alleging that the hospital's negligence deprived her of the "conjugal fellowship" of Joseph Corey.

The hospital sought discovery of Lesley Corey's divorce lawyer's files, arguing Lesley Corey's pursuit of a loss of consortium claim in the medical malpractice action should result in a forfeiture of the attorney-client privilege regarding her communications with her divorce lawyer. The trial court agreed and held that Lesley Corey waived the privilege with respect to communications with her divorce lawyer.

The Pennsylvania Superior Court affirmed, holding: "Mrs. Corey cannot hide behind the attorney-client privilege to protect communications she had with her divorce attorney when it was Mrs. Corey who placed her marital relationship … at issue by including a claim for loss of consortium in her complaint.

This is not how the "at-issue" exception to the attorney-client privilege is supposed to work.  Lesley Corey plainly did put the status and strength of her marriage at issue by pursuing a consortium claim in the medical malpractice action. The hospital certainly would be entitled to depose family and friends to probe the facts regarding the Corey marriage and thus the credibility of Lesley Corey's claimed deprivation of consortium.

What is not clear at all, however, particularly from the Superior Court opinion, is that Lesley Corey put her communications with her divorce attorney at issue. The trial court's opinion suggests that Lesley Corey may have waived the privilege by disclosing otherwise confidential communications with her divorce lawyer, No. 7551 of 2015 at p.10 (Luzerne Cty. Apr. 11, 2018)(Lesley Corey testified that the divorce "complaint I signed was what my divorce attorney told me … was a standard complaint"). That disclosure of what her divorce lawyer told her could well be a valid reason for negating the privilege. The Superior Court, however, did not overtly ground its opinion on that disclosure by Lesley Corey. Instead, the Superior Court said that Lesley Corey lost the privilege because she put her marriage at issue, not because she disclosed certain communications with counsel. That is a critical distinction because the at-issue exception only properly applies when a party affirmatively places communications with counsel at issue.

Typical examples of the proper application of the at-issue exception are when a party files a legal malpractice action against a former lawyer or affirmatively invokes an "advice of counsel" defense. In those circumstances, a party has put her communications with her lawyer at issue, and fairness and logic demand that the party cannot invoke the privilege to shield those communications from discovery.

In Corey, the Superior Court seems to go beyond the traditional at-issue exception boundaries by saying that, because Lesley Corey put her marriage at issue, it is not fair to allow her to continue to shield from discovery communications that she had with her divorce lawyer about her marriage.

Consider the potential implications of Corey if its logic is extended to other circumstances:  Corporation ABC hires Attorney X to provide advice on a contract. Two years later, Corporation ABC files a lawsuit alleging breach of that contract. Just as Lesley Corey put her marriage at issue by bringing a loss of consortium claim, Corporation ABC has put the contract at issue by suing for breach of contract. Under Corey's logic, has Corporation ABC forfeited the privilege with respect to ABC's confidential communications with Attorney X? Under the traditional at-issue exception, the privilege should remain intact because, while ABC certainly put the contract at issue, ABC did not itself put its communications with Attorney X at issue. See Constand v. Cosby, 232 F.R.D. 494, 499-500 (E.D. Pa. 2006) (the relevance of confidential communications is insufficient to negate the privilege). The purpose of the attorney-client privilege is, after all, to encourage clients to share relevant, not irrelevant, information with attorneys. A relevance exception would render the privilege entirely worthless. See Lane v. State Farm Mutual Automobile Insurance, No. 3:14–cv-01045, (M.D. Pa. May 18, 2015).

Corey is probably best understood as being limited to its unique facts and, at most, establishing a narrow loss of consortium exception to the attorney-client privilege. The Superior Court, however, would do a service to Pennsylvania practitioners if it clarified that the at-issue exception has not been expanded to unworkable lengths as Corey might suggest.

Kevin P. Allen is a member of Eckert Seamans Cherin & Mellott's commercial litigation practice group. He is the author of "The Attorney-Client Privilege and Work-Product Doctrine" in Pennsylvania, now in its fifth edition from PBI Press.