Lawyer Can't Claim Privilege Once Client Waives It

, The Legal Intelligencer

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The Pennsylvania Supreme Court's ruling that attorney-client privilege is a two-way street did not mean the attorney can claim the privilege, the state Superior Court has ruled.

The three-judge panel in Cohen v. Moore Becker said the 2011 Supreme Court ruling in Gillard v. AIG Insurance finding that information shared from an attorney to a client is privileged doesn't serve to allow the attorney to refuse to share that information when the client waives the privilege.

"Gillard did not disturb the traditional understanding that the client holds the attorney-client privilege; it elaborated solely on the scope of that privilege," President Judge Susan Peikes Gantman said in the nonprecedential opinion.

In Cohen, plaintiff Myrna Cohen hired attorney Jeffrey D. Abramowitz and his former firm Moore Becker in Westmoreland County to represent her in a Social Security disability case and other related actions. At some point between February 2005 and July 2006, Cohen switched the case to attorney Shelly Farber of Farber & Farber Law in Broomall, Pa., and her files were transferred to him.

Around the same time, Cohen also hired attorney John E. Quinn of Portnoy & Quinn to represent her in a legal malpractice action against Abramowitz and his former firm, Gantman said. In the course of discovery in the malpractice action, Abramowitz and Moore Becker served Farber with a subpoena for all things, records and documents pertaining to Cohen, including all documents related to her claims or potential claims for Social Security disability or Social Security supplemental income, Gantman said. Quinn did not object to the subpoena or assert any attorney-client privilege on Cohen's behalf, according to the opinion.

In response to the subpoena, Farber filed a motion for a protective order, objecting to the subpoena as overly broad and seeking privileged matters given his ongoing and past attorney-client relationship with Cohen in other cases. Abramowitz and Moore Becker filed a motion to compel Farber to comply with the subpoena and the trial court granted the motion the same day. Farber filed a petition for permission to file an interlocutory appeal, which was granted.

In his appeal, Farber argued that, notwithstanding Cohen's waiver of privilege, Farber has a "two-way street" attorney-client privilege related to his ongoing Social Security case. Farber said Quinn could not waive any privilege Cohen maintained with Farber. Farber argued he was forced into a position of having to object to the discovery requests to avoid violating attorney-client-privilege statutes, Gantman said. Farber further cited the Gillard decision as protecting his privilege with Cohen.

"Attorney Farber suggests that, while Ms. Cohen holds the privilege with respect to communications she made to attorney Farber, he holds the privilege with respect to communications he made to her," Gantman said. "Attorney Farber concludes we should reverse the court's order granting Mr. Abramowitz and his former law firm's motion to compel. We disagree."

While the Supreme Court in Gillard noted the purpose of the privilege was to encourage free and open communications between counsel and client, Gantman said, "Pennsylvania law makes clear that the client owns the privilege."

Gantman further noted that the attorney-client privilege is not automatic. A party must satisfy four elements to successfully invoke the privilege: the asserted holder of the privilege is or sought to be the client, the communication was made to an attorney or his subordinate, the communication was made in the presence only of the attorney with the purpose of securing a legal opinion, and the privilege was not waived by the client, Gantman said.

Gantman said Cohen did not object to the subpoena or invoke her attorney-client privilege.

"Attorney Farber's attempt to assert an attorney-client privilege on his own behalf, in contravention of the trial strategy of Ms. Cohen's legal malpractice counsel, is without effect, because the attorney-client privilege belongs to Ms. Cohen in other matters," Gantman said. "Attorney Farber's attempt to assert the attorney-client privilege on behalf of Ms. Cohen is similarly without effect.

"Attorney Farber is a nonparty to the legal malpractice litigation, without capacity to invoke the attorney-client privilege on behalf of Ms. Cohen in that action."

Judges John T. Bender and Judith F. Olson joined Gantman in the opinion.

Quinn did not return a call for comment. Neither did Abramowitz's attorney, Dennis J. Roman of Marshall Dennehey Warner Coleman & Goggin in Pittsburgh. Bethann R. Lloyd of Grogan Graffam in Pittsburgh represented Moore Becker and declined to comment. Farber also declined comment.

Gina Passarella can be contacted at 215-557-2494 or at gpassarella@alm.com. Follow her on Twitter @GPassarellaTLI.

(Copies of the nine-page opinion in Cohen v. Moore Becker, PICS No. 14-0217, are available from The Legal Intelligencer. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.) •

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    Looks like the malpractice attorney may get sued for malpractice.

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