skip navigation
search

End-of-life notice: American Legal Ethics Library

As of March 1, 2013, the Legal Information Institute is no longer maintaining the information in the American Legal Ethics Library. It is no longer possible for us to maintain it at a level of completeness and accuracy given its staffing needs. It is very possible that we will revive it at a future time. At this point, it is in need of a complete technological renovation and reworking of the "correspondent firm" model which successfully sustained it for many years.

Many people have contributed time and effort to the project over the years, and we would like to thank them. In particular, Roger Cramton and Peter Martin not only conceived ALEL but gave much of their own labor to it. We are also grateful to Brad Wendel for his editorial contributions, to Brian Toohey and all at Jones Day for their efforts, and to all of our correspondents and contributors. Thank you.

We regret any inconvenience.

Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.


Pennsylvania Legal Ethics

1.6   Rule 1.6 Confidentiality of Information

1.6:100   Comparative Analysis of Pennsylvania Rule

Primary Pennsylvania References: PA Rule 1.6
Background References: ABA Model Rule 1.6, Other Jurisdictions
Commentary:

1.6:101      Model Rule Comparison

The Pennsylvania version expands on the Model Rule in several ways. The Pennsylvania Rules have a provision expressly authorizing disclosure if necessary to comply with the requirements of Rule 3.3, Candor Toward the Tribunal. PA-R 1.6(b). The Pennsylvania Rules also permit disclosure to prevent or rectify the consequences of a client's criminal or fraudulent act in the commission of which the lawyer's services are being or have been used. PA-R 1.6(c)(2). The Pennsylvania Rules also expressly state that the duty not to reveal information relating to representation of a client continues after the client-lawyer relationship has terminated. PA-R 1.6(d).

1.6:102      Model Code Comparison

The principle of confidentiality under the Rules is broader than that defined by the Code. The Rules defines confidential as all information relating to representation of a client. PA-R 1.6(a). Under the Code, the requirement applies only to information protected by the attorney client privilege ("confidences"), and to information gained in the professional relationship that the client has requested to be held inviolate or the disclosure of which would be embarrassing or would be likely to be detrimental to the client ("secrets"). DR 4-101; PA-R 1.6, Code Comparison.

Rule 1.6(a) permits a lawyer to disclose information where impliedly authorized in order to carry out the representation. Under the DR 4-101(B) and (C), a lawyer cannot disclose confidences unless the client first expressly consents after disclosure. Under the Code, a lawyer "may reveal...The intention of his client to commit a crime and the information necessary to prevent the crime." This option exists regardless of the seriousness of the proposed crime. DR 4-101(C)(3). Also, the lawyer is required to reveal information necessary to "rectify" a "fraud upon a person or tribunal." DR 7-102(B)(1). Under the Rules, a lawyer may reveal information to prevent the client from committing a criminal act that the lawyer believes is likely to result in death or substantial bodily harm or substantial injury to the financial interests or property of another, or to prevent or rectify the consequences of a client's criminal or fraudulent act in the commission of which the lawyer's services are being or have been used. PA-R 1.6(c)(1),(2).

Under Pennsylvania's rules, a lawyer may reveal confidential information to establish a claim or defense in a controversy between the lawyer and client, to establish a defense to proceedings brought against the lawyer based upon his conduct in which the client was involved, or to respond the allegations in any proceeding concerning the lawyer's representation of the client. PA-R 1.6(c)(3). The Code provides that a lawyer may reveal confidences or secrets "to establish or collect his fee or to defend himself or his employees or associates against an accusation of wrongful conduct." DR 4-101(C)(4).

1.6:200   Professional Duty of Confidentiality

Primary Pennsylvania References: PA Rule 1.6
Background References: ABA Model Rule 1.6, Other Jurisdictions
Commentary: ABA/BNA 55:101, ALI-LGL 111-117A, Wolfram 6.1, 6.7

A lawyer's ethical obligation to hold inviolate confidential information of the client facilitates full development of facts essential to proper representation of the client and encourages people to seek early legal assistance. PA-R 1.6 cmt.

1.6:210      Definition of Protected Information

Rule 1.6(a) thus imposes confidentiality on information relating to the representation, even if acquired before or after the relationship existed. Restatement of the Law Governing Lawyers 1.6:201 notes that the language of the Model Rule (which has been adopted in Pennsylvania) protects information without regard to the time at which a lawyer learns of it. Furthermore, it does not require the client to indicate information that is to be confidential, or permit the lawyer to speculate whether particular information might be embarrassing or detrimental.

1.6:220      Lawyer's Duty to Safeguard Confidential Client Information

Lawyers in a firm may disclose to each other information relating to a client of the firm, unless the client has instructed otherwise. PA-R 1.6 cmt. See PA-R 5.3 (addressing a lawyer's responsibilities regarding nonlawyer assistants).

A client must show that an attorney has actually revealed information relating to the representation of the client to show that the attorney violated this rule. Dworkin v. General Motors Corp. (E.D. Pa. 1995). Phila. B.A. Guid. Comm. Op. 91-4 (3/91) (stating lawyer may not comply with requests of deceased client's children to disclose contents of first will drafted for client who executed later will and did not authorize disclosure to children).

1.6:230      Lawyer Self-Dealing in Confidential Information [see also 1.8:300]

See PA-R 1.8 (prohibiting transactions adverse to client)

1.6:240      Use or Disclosure of Confidential Information of Co-Clients

See PA-R 1.7 (prohibiting representation adverse to the interests of another client)

1.6:250      Information Imparted in Lawyer Counseling Programs

[The discussion of this topic has not yet been written.]

1.6:260      Information Learned Prior to Becoming a Lawyer

[The discussion of this topic has not yet been written.]

1.6:300   Exceptions to Duty of Confidentiality--In General

Primary Pennsylvania References: PA Rule 1.6
Background References: ABA Model Rule 1.6, Other Jurisdictions
Commentary: ABA/BNA 55:101, ALI-LGL 111-117A, Wolfram 6.4, 6.7

1.6:310      Disclosure to Advance Client Interests or with Client Consent

Rule 1.6(a) authorizes disclosure that is impliedly authorized in order to carry out the representation, except where the client's instructions or special circumstances limit that authority, or where the client consents. For example, in litigation, a lawyer may disclose information by admitting a fact that cannot properly be disputed, or in negotiation by making a disclosure that facilitates a satisfactory conclusion. PA-R 1.6 cmt.

1.6:320      Disclosure When Required by Law or Court Order

A lawyer may be obligated or permitted by other provisions of law to give information about a client, however, a presumption should exist against such a supersession. PA-R 1.6 cmt.

The lawyer must comply with the orders of a tribunal requiring the lawyer to give information about the client, however, if a lawyer is called to testify, absent waiver by the client, the lawyer must invoke the privilege when it is applicable. PA-R 1.6 cmt.

1.6:330      Disclosure in Lawyer's Self-Defense

PA-R 1.6(c)(3) authorizes the lawyer to disclose information to establish a claim or defense in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim or disciplinary proceeding against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client. An attorney is permitted to disclose information regarding his representation of a client in any proceeding regarding the effectiveness of that representation. Euell v. Rosemeyer (W.D. Pa. 1993).

Where a legal claim or disciplinary charge alleges misconduct of the lawyer involving representation of the client or former client, the lawyer may respond to the extent the lawyer reasonably believes necessary to establish a defense. PA-R 1.6 cmt. The lawyer's right to respond arises as soon as an assertion of misconduct has been made. PA-R 1.6 cmt. Moreover, the defense may be established by responding directly to a third party who has made such an assertion, however, where practicable and not prejudicial to the lawyer's ability to establish the defense, the lawyer should advise the client of the third party's assertion and request that the client respond appropriately. PA-R 1.6 cmt.

1.6:340      Disclosure in Fee Dispute

A lawyer entitled to a fee is permitted to prove the services rendered in an action to collect it; the beneficiary of a fiduciary relationship may not exploit it to the detriment of the fiduciary. PA-R 1.6 cmt. A firm may disclose names of clients who have delinquent accounts to a collection service. Phila. B.A. Guid. Comm. Op. 90-23 (1991).

1.6:350      Disclosure to Prevent a Crime

PA-R 1.6(c)(1) authorizes disclosure to prevent the client from committing a criminal act that the lawyer believes is likely to result in death or substantial bodily harm or substantial injury to the financial interests or property of another.

1.6:360      Disclosure to Prevent Death or Serious Bodily Injury

PA-R 1.6(c)(1) authorizes disclosure to prevent the client from committing a crime the lawyer believes is likely to result in death or substantial bodily harm.

1.6:370      Disclosure to Prevent Financial Loss

Pennsylvania has expanded the Model Rule to authorize disclosure to prevent the client from committing a crime the lawyer believes will result in substantial injury to the financial interests or property of another. PA-R 1.6(c)(1). Reasonable belief means the lawyer believes the matter in question and that the circumstances are such that the belief is reasonable. PA-R, Terminology. It should be noted that a lawyer's considered decision not to make disclosures permitted by Rule 1.6(c) does not violate this Rule. PA-R 1.6 cmt.

1.6:380      Physical Evidence of Client Crime [see 3.4:210]

See PA-R 3.4 (mandating fairness to opposing party and counsel)

1.6:390      Confidentiality and Conflict of Interest

See PA-R 1.7 (prohibiting representation that will adversely affect another client)

An attorney's representation of a subsequent client whose interests are materially adverse to a former client in a matter substantially related to matters in which he represented the former client is impermissible. Maritrans GP, Inc. v. Pepper, Hamilton & Scheetz, (Pa. 1992). Conflicts of interest are actionable at law independent of any violation of any code of professional responsibility. Maritrans GP, Inc. v. Pepper, Hamilton & Scheetz, (Pa. 1992). See Euell v. Rosemeyer (W.D. Pa. 1993) (holding presumption of shared confidence is rebutted where district attorney who had formerly represented defendant had not had contact with defendant's file and had avoided conversations about defendant and defendant had no proof of improper communication.

1.6:395      Relationship with Other Rules

[The discussion of this topic has not yet been written.]

1.6:400   Attorney-Client Privilege

Primary Pennsylvania References: PA Rule 1.6
Background References: ABA Model Rule 1.6, Other Jurisdictions
Commentary: ABA/BNA 55:301, ALI-LGL 118-128, Wolfram 6.3-6.5

Pennsylvania provides separate protection to attorney-client communications in civil and criminal matters. The attorney is not competent or permitted to testify to confidential communications made to him by his client, nor shall the client be compelled to disclose the information. 42 Pa. Cons. Stat. Ann. 5916, 5928 (1996). The attorney-client privilege applies when the asserted holder is or sought to become a client, the person to whom the communication was made is a lawyer, the confidential communication related to a fact of which the attorney was informed by his client for the purpose of obtaining legal counsel, and the privilege has not been waived. United States v. Calabria (E.D. Pa. 1985). The attorney-client privilege applies in judicial and other proceedings in which a lawyer may be called as a witness or otherwise required to produce evidence concerning a client. PA-R 1.6 cmt. See Trammel v. United States, (U.S. 1980) (all privileges should be construed strictly because they contravene the fundamental principle that the public has a right to everyman's evidence).

1.6:410      Privileged Communications

A fundamental principle of the client-lawyer relationship is that the lawyer maintain confidentiality of information relating to the representation, however, there is a distinction between content of communication and knowledge of facts. Upjohn Co. v. United States, (U.S. 1981) (noting protection of the privilege extends only to communications and not to facts). Additionally, the attorney-client privilege does not apply to pre-existing documents merely by virtue of their transfer to an attorney. In re Gartley, (Super. Ct. 1985), aff'd (1987). A lawyer's observations gained outside the lawyer-client relationship are subject to discovery. Frieman v. USAir Group, Inc. (E.D. Pa. 1994).

1.6:420      Privileged Persons

The attorney client privilege applies whether disclosure is sought from the attorney or the client. Commonwealth v. Sims (1987). The privilege does not, however, extend to communications made to a third party or to the court. Johnston v. Johnston (Super. Ct. 1985); Miller v. Haulmark Transp. Systems (E.D. Pa. 1984) (excluding family members and business associates); Cedrone v. Unity Savings Ass'n (E.D. Pa. 1984) (excluding lawyer's secretary and other agents).

1.6:430      Communications "Made in Confidence"

Privilege does not protect communications publicly disclosed at the direction of the client. Commonwealth v. Goldblum (1982). See Commonwealth v. Boyd (Super. Ct. 1990) (holding defendant's hanging letter to attorney detailing crimes on cell wall waived privilege).

1.6:440      Communications from Lawyer to Client

Legal advice or the legal opinion of an attorney is confidential and within the protection of the attorney client privilege. United States v. Amerada Hess Corp. (3d Cir. 1980).

1.6:450      Client Identity, Whereabouts, and Fee Arrangements

The privilege precludes responding to a summons demanding from lawyer a list of clients whom lawyer had advised could deduct legal fees on income. United States v. Liebman, (3d Cir. 1984). See Phila. B.A. Guid. Comm. Op. 91-23 (undated) (providing lawyer must report fugitive client's whereabouts if learned of and withdraw from representation in civil matter and where client intends to appear at civil matter, but not at criminal matter).

1.6:460      Legal Assistance as Object of Communication

[The discussion of this topic has not yet been written.]

1.6:470      Privilege for Organizational Clients

The attorney client privilege extends to corporations, and protects communications involving corporate employees' communications at the direction of corporate superiors in order to obtain legal advice. Upjohn Co. v. United States (U.S. 1981). See In re Bevill, Bresler & Schulman Asset Management Corp. (3d Cir. 1986) (limiting protection to communications relating to interests of organization).

1.6:475      Privilege for Governmental Clients

See generally NLRB v. Sears, Roebuck & Co., (U.S. 1975) (describing availability of privilege to governmental agencies); Gulf Oil Corp. v. Schlesinger (E.D. Pa. 1979) (applying general privilege rules to governmental client).

1.6:480      Privilege of Co-Clients

[The discussion of this topic has not yet been written.]

1.6:490      Common-Interest Arrangements

See Government of Virgin Islands v. Joseph (3d Cir. 1982) (finding no privilege for admission of guilt by unrepresented person to lawyer for accused).

1.6:495      Duration of Attorney-Client Privilege

The duty not to reveal information relating to representation of a client continues after the client-lawyer relationship has terminated. PA-R 1.6 cmt. The attorney continues to be obligated to protect his former client's privileged communications until he is released from that duty. United States v. Calabria (E.D. Pa. 1985), aff'd (1987). The privilege which attaches to statements made to a lawyer or his agents survives the termination of the attorney-client relationship. Commonwealth v. Hutchinson (Pa. Super. 1981); In re Gartley (Pa. Super. 1985) (noting communications are permanently protected unless waived).

1.6:500   Waiver of Attorney-Client Privilege

Primary Pennsylvania References: PA Rule 1.6
Background References: ABA Model Rule 1.6, Other Jurisdictions
Commentary: ABA/BNA 55:401, ALI-LGL 128-130, Wolfram 6.4

1.6:510      Waiver by Agreement, Disclaimer, or Failure to Object

[The discussion of this topic has not yet been written.]

1.6:520      Waiver by Subsequent Disclosure

[The discussion of this topic has not yet been written.]

1.6:530      Waiver by Putting Assistance or Communication in Issue

[The discussion of this topic has not yet been written.]

1.6:600   Exceptions to Attorney-Client Privilege

Primary Pennsylvania References: PA Rule 1.6
Background References: ABA Model Rule 1.6, Other Jurisdictions
Commentary: ABA/BNA 55:901 et seq., ALI-LGL 131-135, Wolfram 6.4

1.6:610      Exception for Disputes Concerning Decedent's Disposition of Property

[The discussion of this topic has not yet been written.]

1.6:620      Exception for Client Crime or Fraud

In camera review may be used to determine whether allegedly privileged attorney-client communications fall within the crime-fraud exception where the party opposing the privilege presents evidence to show that review may establish application of the crime fraud doctrine. United States v. Zolin (U.S. 1989).

1.6:630      Exception for Lawyer Self-Protection

[The discussion of this topic has not yet been written.]

1.6:640      Exception for Fiduciary-Lawyer Communications

[The discussion of this topic has not yet been written.]

1.6:650      Exception for Organizational Fiduciaries

[The discussion of this topic has not yet been written.]

1.6:660      Invoking the Privilege and Its Exceptions

[The discussion of this topic has not yet been written.]

1.6:700   Lawyer Work-Product Immunity

Primary Pennsylvania References: PA Rule 1.6
Background References: ABA Model Rule 1.6, Other Jurisdictions
Commentary: ABA/BNA 91:2201, ALI-LGL 136-142, Wolfram 6.6

1.6:710      Work-Product Immunity

The doctrine of work product immunity was first articulated by the Supreme Court in Hickman v. Taylor (U.S. 1947). The policy favoring this doctrine has been incorporated into Fed. R. Civ. P. 26(b)(3). The rule permits discovery of documents and only upon a showing that the party seeking discovery has "substantial need" of the materials and is unable to obtain the equivalent without "undue hardship." Fed. R. Civ. P. 26(b)(3). A party sufficiently demonstrates need and hardship in obtaining materials substantially equivalent to interview memoranda where witnesses are deceased. In re Grand Jury Investigation (3d Cir. 1979). See Hodgson v. L.B. Smith, Inc. (M.D. Pa. 1971) (setting forth general rules about what is sufficient to overcome work product rule).

1.6:720      Ordinary Work Product

Work-product protection in Pennsylvania state courts is more limited than under the Federal Rules. Statements concerning the action or its subject matter made by a party or witness are discoverable. Pa. R. Civ. P. 4003.4. A party may obtain discovery of any matter otherwise discoverable even though it was prepared in anticipation of litigation or trial by or for another party or by or for that party's representative, including attorneys, consultants and insurers. Pa. R. Civ. P. 4003.3. Such discovery shall not include disclosure of the mental impressions of a party's attorney or his conclusions, opinions, memoranda, notes or summaries, legal research or legal theories, nor shall it include the disclosures of the mental impressions, conclusions or opinions respecting the value or merit of a claim or defense, or respecting strategy or tactics, by a representative of a party other than the party's attorney. Id. Protection does not extend to material prepared in anticipation of trial by the party.

1.6:730      Opinion Work Product

[The discussion of this topic has not yet been written.]

1.6:740      Invoking Work-Product Immunity and Its Exceptions

[The discussion of this topic has not yet been written.]

1.6:750      Waiver of Work-Product Immunity by Voluntary Acts

See In re Sunrise Securities Litigation (E.D. Pa. 1989) (making disclosure to FSLIC absent agreement to withhold information from adversary waives work-product protection).

1.6:760      Waiver of Work-Product Immunity by Use in Litigation

See S & A Painting v. OWB Corp. (W.D. Pa 1984) (holding that handwritten notes prepared by witness at suggestion of attorney fell within privilege and work product doctrine, however, both were waived in regard to portions referred to during deposition).

1.6:770      Exception for Crime or Fraud

The crime-fraud exception applies to work product privilege as well as the attorney client privilege. In re Grand Jury Investigation (3d Cir. 1979); United States v. Zolin (U.S. 1989).