United States: Pennsylvania's Attorney-Client Privilege is Revived and Well: The Pennsylvania Supreme Court's Decision in Gillard v. AIG Ins. Co.

Last Updated: March 3 2011
Article by Thomas G. Wilkinson, Jr. and Matthew N. Klebanoff

I. Introduction

On February 23, 2011, the Pennsylvania Supreme Court held that Pennsylvania's attorney-client privilege operates as a "two-way street" and protects confidential communications from client-to-attorney as well as communications from attorney-to-client. See Gillard v. AIG Ins. Co., No. 10 EAP 2010 (Pa. Feb. 23, 2011). The Court's decision marks the end of lingering uncertainty that has existed in Pennsylvania regarding the scope of the attorney-client privilege — uncertainty that was sharply brought into focus by the Pennsylvania Superior Court's May 2007 decision in Nationwide Mut. Ins. Co. v. Fleming, 924 A.2d 1259 (Pa. Super. Ct. 2007). There, the Superior Court construed the Pennsylvania privilege statute narrowly and held that only communications from client-to-attorney (and not attorney-to-client) were privileged. As discussed in greater detail below, the Fleming Court did acknowledge that attorney-to-client communications could enjoy so-called "derivative protection" where such communications incorporated or reflected prior confidential client-to-attorney communications. (Fleming eventually made its way to the Pennsylvania Supreme Court, but due to the recusal of three Justices and an equally divided decision, the Superior Court's ruling remained controlling law).

In Gillard, appellant AIG Insurance Company ("AIG"), was successful in persuading five of the seven Justices that a narrow, formalistic reading of Pennsylvania's privilege statute is antithetical to the important policies underlying the privilege, and that the legal profession, as well as individual and corporate clients, would greatly benefit from a clearly articulated and bright-line standard for the attorney-client privilege. Thomas G. Wilkinson, Pennsylvania Bar Association Vice President and a member of Cozen O'Connor in its Commercial Litigation Department, served as amicus counsel to the PBA and the Philadelphia Bar Association in the briefing in the Supreme Court on the scope of the privilege.

II. The Road to Gillard

In Fleming, the Superior Court held that, under the specific language of the Pennsylvania privilege statute, only communications from client-to-attorney were protected by the attorney-client privilege. At issue in Fleming was a document drafted by Nationwide's general counsel concerning insurance agent defections. When opposing counsel sought production of the document, Nationwide refused on the grounds that the document was protected by the attorney-client privilege. The trial court had previously concluded that the document was privileged but that the privilege had been waived by Nationwide's production of related documents, but the Superior Court held that the document was not privileged in the first place, and thus there was no privilege to waive. The Pennsylvania statute governing privilege is entitled "Confidential communications to attorney," which provides:

In a 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.

42 Pa.C.S. § 5928.

In accord with the statutory language, the court explained that "under this privilege, protection is available only for confidential communications made by the client to counsel." Fleming, 924 A.2d at 1269. The court did acknowledge that insofar as attorney-to-client communications contained confidential information that was previously relayed to the attorney by the client, those portions could enjoy "derivative protection." The Fleming court concluded that the document at issue was simply a communication from attorney-to-client that did not reveal any confidential communications previously made by the client to counsel, and that the document was therefore non-privileged. The Court intimated that the document may have received protection under the work product doctrine, but the Court declined to consider that issue because "Nationwide has invoked only attorney-client privilege." Id.

In January 2010, with three Justices not participating, the Pennsylvania Supreme Court reached a 2-2 impasse, and the Superior Court's opinion thus remained controlling law.1 Justices Baer and Eakin wrote in support of affirmance, and never reached the merits of the attorney-client privilege issue because they decided the case based solely upon waiver. Chief Justice Castille and Justice Saylor set forth why, in their view, the attorney-client privilege should run both ways, and the Superior Court's decision in Fleming should be reversed. Indeed, many of the arguments advanced in support of a broad, two-way attorney-client privilege were later adopted by the majority in Gillard. Less than two months after the split decision in Fleming, the Supreme Court granted allocatur in Gillard.

In Gillard, an uninsured motorist sought production of files from the law firm that was representing the insurer, AIG, in the underlying litigation. The insurer withheld the files, which were created by counsel, asserting that they were protected by the attorney-client privilege. The Philadelphia County Court of Common Pleas construed the privilege narrowly, and held that communications from attorney-to-client were not protected. See Gillard v. AIG Ins. Co., No. 0864, 2007 Phila. Ct. Com. Pl. LEXIS 159 (June 5, 2007). The trial court did not recognize the potential availability of derivative protection to all or some of the content of the attorney-to-client communication. The Superior Court affirmed on the ground that the privilege was "strictly limited" under Fleming. See Gillard v. AIG Ins. Co., No. 1065 EDA 2007, slip op. at 4 (Pa. Super. Ct. Jan. 4, 2008). Shortly thereafter, the Pennsylvania Supreme Court granted allocatur in Gillard to decide the "appropriate scope of the attorney-client privilege in Pennsylvania . . . [i]n the aftermath of the divided Fleming decision[.]"

III. The Attorney-Client Privilege is a "Two-Way Street" Under Pennsylvania Law

The amici in the Supreme Court supporting reversal included the Pennsylvania, Philadelphia, and Allegheny County Bar Associations, as well as the Association of Corporate Counsel, the Chamber of Commerce of the United States, the American Insurance Association and others. The amici advanced policy-based and historical common law arguments accepting the position that the privilege should broadly apply to protect confidential communications made in both directions so as to encourage full and frank discussion between lawyer and client, including in-house counsel called upon to advise their organizational clients. Gillard countered with text-based arguments grounded in the Pennsylvania privilege statute, urging the Court not to extend protection for attorney communications beyond any existing derivative protection, and arguing that any expansion would be "inappropriate judicial interference with the prevailing legislative scheme."

The Court acknowledged that Pennsylvania courts have been inconsistent in the application and scope of the privilege, but explained that this was largely due to the "competing interests-of-justice . . . in encouraging trust and candid communication" between attorney and client, while also rendering evidence accessible to "further the truth-determining process." Proceeding from common ground, the Court noted that all sides agreed that the privilege affords derivative protection to attorney communications that encompass confidential client communications. The Court highlighted the "inordinate practical difficulties" that would result from having to unravel attorney advice from client input, and cited decisions from the United States Supreme Court and the U.S. Court of Appeals for the Third Circuit in support of its adoption of a rule that encourages candid communications between attorney and client. Indeed, the Court explained that, as a practical matter, generally both attorney and client already operate under the assumption that their communications will remain private.

Next, the Court tackled the troubling text of § 5928 by explaining that the Court was not convinced that the Pennsylvania Legislature intended to set strict limits on the privilege despite the statutory language. The majority noted that even the dissenting Justices acknowledge that § 5928 affords derivative protection and that therefore "it is not possible to employ close literalism relative to Section 5928." In sum, the majority characterized the disagreement of the dissents as one of degree rather than direction. The Court explained that often client and attorney communications are "inextricably intermixed" and that, in its view, the Legislature had not intended for the privilege to require the "surgical separations" implicit in a strictly derivative approach.

Interestingly, the amici Bar Associations argued that even if the Court discerned legislative intent to limit the privilege only to communications from client to attorney, under Art. V, § 10(c) of the Pennsylvania Constitution, the Supreme Court nevertheless retained decisional authority with regard to procedural rulemaking. The Court agreed with the amici that the Court played a role "beyond the mere construction of statutes in determining the appropriate scope of testimonial privileges," but ultimately found it unnecessary to determine the limitations of power of the respective branches of government regarding privilege due to the Court's interpretation of the statute as well as its determination that the Legislature did not intend to "cabin [the Court's] involvement." In conclusion, the majority acknowledged the possibility for abusive assertions of the attorney-client privilege — such as disguising ordinary business advice as legal advice — but ultimately concluded that existing checks such as in camera judicial review provide sufficient security to protect the integrity of the truth-seeking process. The Court definitively concluded that the attorney-client privilege "operates in a two-way fashion" and protects confidential communications made for the purpose of obtaining or providing legal advice. The Court also recognized the continued vitality of the attorney work product doctrine reflected in Pennsylvania Rule of Civil Procedure 4003.3, excepting from disclosure in discovery "the mental impressions of a party's attorney or his or her conclusions, opinions, memoranda, notes or summaries, legal research or legal theories."

Justice Eakin and Justice McCaffery each filed a dissenting opinion. Justice Eakin dissented on the grounds that, in his view, the privilege should not apply with equal force to attorney-to-client communications, and that even if the privilege should be extended to cover such communications, this should be accomplished either by Rule, after publication or comment, or by the Legislature. Justice McCaffery reiterated his position espoused in Fleming, contending that the plain text of § 5928 was "unmistakably clear," that the majority relied too heavily on policy-based arguments, ignored decades of decisional law, and acted in an improper legislative capacity.

The Court left for another day the question of whether discovery orders requiring the disclosure of claimed privileged information would remain available for interlocutory appeal under the collateral order doctrine. The United States Supreme Court held in Mohawk Indus., Inc. v. Carpenter, __ U.S. __ , 130 S. Ct. 599, 609 (2009), that there is no interlocutory appellate review as of right of such orders, but the collateral order question had not been accepted for review in Gillard.

IV. Conclusion

The Court's decision in Gillard realigns Pennsylvania with the majority of jurisdictions as well as federal law in providing broad protection for confidential attorney-client communications. The Court adopted a pragmatic, bright-line approach to protecting confidential attorney-client communications, while acknowledging that a waiver of the privilege may occur under various circumstances. The ruling serves to encourage counsel, including staff counsel, to proactively provide legal advice to clients regardless of whether that advice follows a specific request for advice on that topic. The Court conceded the privilege can, under certain circumstances, function as an impediment to truth-seeking, but nevertheless tipped the balance of competing interests in favor of broad protection aimed at fostering candid communications to and from an attorney. The Pennsylvania Supreme Court clearly recognized what the United States Supreme Court long ago advised in Upjohn, "[a] n uncertain privilege, or one which purports to be certain but results in widely varying applications by the courts, is little better than no privilege at all."


1. Justices McCaffery and Todd recused because both had previously sat on the Superior Court panel that decided Fleming. Justice Melvin recused because her brother represented one of the parties.


The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.