Coregis Insurance Co. v. Law Offices of Carole F. Kafrissen, 186 F. Supp.2d 567 (3d Cir. 2002)
Underlying Legal Malpractice Action
Facts: An attorney was sued for professional malpractice and his carrier agreed to settle the claim with his consent. The attorney then filed a compliant against his carrier for bad faith in settling with his former client, as well as denial of benefits under the policy. The attorney, while in the discovery stage of the bad faith litigation, requested amongst other things, six documents from the carrier’s claims file that the carrier alleged were attorney-client privileged.
The District Court found that four of the documents were not protected by the privilege, and while the remaining two could have appeared to be protected, Pennsylvania law offered limited protection for communications from lawyers to their clients. The insurer had to submit redacted versions of the four documents to the attorney, and provide the remaining two documents to the Court for in camera review.
The carrier appealed to the Third Circuit. The attorney moved the Court to declare the appeal frivolous, require immediate production and proceed to trial, or in the alternative, stay the proceeding until the Third Circuit made a ruling on the appeal. The insurer opposed the motion, arguing that the Court’s decision was incorrect, and no in camera review of the documents was necessary since all of the communications contained in them were privileged.
Issue: Whether, under Pennsylvania law, the attorney-client privilege protects communications from the client to the lawyer only, or whether it extends also to communications from the lawyer to the client, even though this disclosure will not reveal the client’s communications to the lawyer?
Ruling: Pennsylvania law cloaks with privilege communications from the client to the attorney, but does not extend an equal and full protection to those communications flowing from the lawyer to the client. Rather, it enjoins the attorney only from subsequent unauthorized disclosures of communications made to him in confidence by the client, and does not shield other information imparted by the attorney to the client, i.e. counsel’s advice to the client. Accordingly, in camera production of the carrier’s claims file was required in order to ascertain which certain documents would be protected from production.
Lesson: Under Pennsylvania law, all communications from an attorney are not automatically afforded attorney-client privilege. Rather, the communication flowing from an attorney to his client is only protected to the extent the disclosure would infringe upon client confidences.