The attorney-client privilege continues to be a frequently litigated issue in Pennsylvania. In 2011, the Pennsylvania Supreme Court decided Gillard v. AIG Insurance, 15 A.3d 44 (Pa. 2011), which affirmed that the attorney-client privilege is a “two-way street” and confirmed that all communications between an attorney and the client are privileged. In a prior article, we predicted that the Gillard decision (and other decisions limiting the now-reversed decision in Nationwide Mutual Insurance v. Fleming, 924 A.2d 1259 (Pa. Super. Ct. 2007)) would require Pennsylvania courts to consider numerous issues regarding the scope of the attorney-client privilege given the ripples caused by Fleming. The Pennsylvania Superior Court recently considered one of those issues and held that only the client, and not the attorney, has the right to waive the attorney-client privilege.
The CohenDecision
In Cohen v. Moore Becker, No. 913 WDA 2012 (Pa. Super. Ct. Feb. 10, 2014) (a nonprecedential opinion), the Superior Court was faced with a case involving three lawyers hired by a single plaintiff to pursue various legal claims, including an application for Social Security disability benefits and a legal malpractice claim. Against this backdrop, questions of privilege were inevitable.
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