The opinion of the court was delivered by: James R. Kelley, Senior Judge as Special Master
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge HONORABLE BERNARD L. McGINLEY, Judge HONORABLE DAN PELLEGRINI, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JOHNNY J. BUTLER, Judge*fn1
In this Right-to-Know Law (Law)*fn2 appeal from a partial denial (redaction) of legislative records*fn3 of the Senate of Pennsylvania, we are asked whether the attorney-client privilege shields the names of clients and descriptions of legal services in bills presented to the Senate for reimbursement. In particular,Section 1301 of the Law, 65 P.S. §67.1301, provides that appeals from a final determination of an appeals officer relating to a decision of a legislative agency shall be taken to the Commonwealth Court.
Marc Levy appeals the decision of the Senate Appeals Officer which directed the Senate either to provide affidavits supporting the assertion of the attorney-client privilege or to provide the requested records "revealing the identity of the clients and any purpose for which the various attorneys are engaged." Pet‟r‟s Br., App. A at 14 (Senate Appeals Officer, Final Determination Order, 9/16/10).
At issue are two requests. The first sought "all bills, contracts and payment records relating to the hiring of any outside lawyer or law firm to represent Sen. Robert J. Mellow beginning Jan. 1, 2009." Reproduced Record (R.R.) at 2a. The second request sought the same records regarding "any current or former employee of the Senate Democratic caucus." R.R. at 1a.
The Senate Open Records Officer responded to the requests and provided about 100 pages with redactions. Specifically, the Senate produced five sets of financial records relating to five clients employed by the Senate who, pursuant to the Senate Committee on Management Operations (COMO) Policy for the Payment of Legal Services, were provided with outside counsel.
The reason for the redactions was stated to be "the attorney-client privilege." R.R. at 3a. Primarily, the names of the five clients and the description of legal services provided to them were redacted. Other information in the financial records was available.
Levy appealed the partial denial to the Senate Appeals Officer, taking the position that the redacted information was not privileged. The parties submitted memoranda. In its memorandum, the Senate addressed the attorneyclient privilege, and it also discussed the work product privilege, grand jury secrecy, and an exemption relating to a criminal investigation. See Section 708(b)(16) of the Law, 65 P.S.§67.708(b)(16).
In an opinion accompanying his final determination, the Senate Appeals Officer discussed the attorney-client privilege at length.*fn4 He reviewed copies of the redacted records to determine whether the criteria necessary for the attorney-client privilege were present. He concluded that most of the criteria were present, but it was impossible to determine whether or not the communications of identity and the purpose for which the attorney was being engaged were made "without the presence of strangers" and "not for the purpose of committing a crime or tort." Final Determination, September 16, 2010 at 8. Because the attorney- client privilege deserves the utmost deference, he ordered that the Senate could remedy the lack of objective indicia by providing supplemental affidavits.
The Senate Appeals Officer also addressed Levy‟s argument that any privilege was waived because the bills for legal services were submitted to the Chief Clerk of the Senate for the purpose of paying the legal fees. He concluded that such intra-Senate type communications may retain a privileged status and be shared with employees on a "need-to-know" basis. The Chief Clerk is an elected officer of the Senate, and it is well within his duties to receive copies of the records and make payment of the legal fees incurred by the Senate on behalf of its members and employees. In the absence of some indication of waiver on the face of the records, they retain their privileged status.
Unfortunately, the Senate Appeals Officer did not specify a time within which to produce supplemental affidavits or unredacted records. On Friday, October 15, 2010, which was the twenty-ninth day after the final determination was mailed, Levy appealed to this Court. At that point, neither supplemental affidavits nor unredacted records had been produced by the Senate. Pursuant to Section 1301(b) of the Law, 65 P.S. §67.1301(b), the appeal stayed release of documents.
While the appeal was pending in this Court, the Pennsylvania Supreme Court rendered an important decision on the attorney-client privilege, Gillard v. AIG Insurance Company, ___ Pa. ___, 15 A.3d 44 (2011). The holding in that case essentially broadened the attorney-client privilege to cover not only confidential client-to-attorney communications but also confidential attorney-to- client communications made for the purpose of obtaining or providing professional legal advice. Id. at ___, 15 A.3d at 59. Although the case did not deal with bills for legal services or the identities of clients, the Supreme Court‟s analysis is useful here and will be discussed below.
After appellate argument, and in an effort to untie the procedural knot arising from the timing of the appeal and the application of an automatic stay, we entered a case management order which allowed the Senate to file a supplemental affidavit as ordered by the Senate Appeals Officer within 10 days. See Bowling v. Office of Open Records, 990 A.2d 813 (Pa. Cmwlth. 2010) (en banc), appeal granted, ___ Pa. ___, 15 A.3d 427 (2011) (reviewing court may supplement record to ensure adequate review; court should consider manner of proceeding most consistent with justice, fairness and expeditious resolution). The affidavit was timely filed, and it is appended to this decision as Attachment A.
In addition, we ordered production of unredacted records for in camera judicial review. See Pa. State Police v. Office of Open Records, 5 A.3d 473 (Pa. Cmwlth. 2010) (court conducted in camera review of incident reports to determine whether exception under the Law applied); Bowling (Law does not expressly prohibit in camera review); see also Gillard (trial court conducted in camera review of documents subject to asserted privilege on the record and in presence of counsel; in camera judicial review provides essential check against possibility for abuse of privilege). In camera judicial review was undertaken by Senior Judge James R. Kelley, acting as special master for the en banc panel. His report was filed under seal on July 25, 2011. Although the unredacted records shall remain under seal, the report is UNSEALED, and it is appended to this decision as Attachment B. His recommendations are accepted and entered as supplemental findings and conclusions by the en banc panel. His recommendations are discussed below.
In an appeal to this Court under Section 1301 of the Law, 65 P.S. §67.1301 (pertaining to Commonwealth, legislative and judicial agencies), we act in our appellate jurisdiction, but we independently review the appeals officer‟s orders, and we may substitute our own findings of fact. Bowling. Further, we exercise the broadest scope of review. Id. The issue of whether the attorney-client privilege protects a particular communication from disclosure is a question of law. Nationwide Mut. Ins. Co. v. Fleming, 924 A.2d 1259 (Pa. Super. 2007), aff‟d on other grounds by an equally divided court, 605 Pa. 468, 992 A.2d 65 (2010). For any question of law, this Court‟s standard of review is de novo and our scope is plenary. Id.
Generally, Levy contends the Law establishes a presumption of public access to government records, especially, as here, to records relating to the expenditure of public funds. The Senate bears the burden of rebutting that presumption and establishing a lawful basis for redaction, but it failed to carry its burden.
More specifically, Levy argues that the attorney-client privilege does not shield from disclosure the identities of public employees who receive publicly funded legal representation or the nature of the services provided at public expense. Citing pre-Gillard cases, Levy argues the Senate‟s blanket redaction conflicts with established Pennsylvania privilege law, which protects attorney-to- client communications only when those communications reflect the confidential client-to-attorney communications. Levy also seeks to distinguish two Commonwealth Court cases addressing redactions of the description of legal services in bills, Board of Supervisors of Milford Township v. McGogney, 13 A.3d 569 (Pa. Cmwlth. 2011), appeal denied, ___ Pa. ___, ___ A3d ___ (No. 124 MAL 2011, filed July 8, 2011), and Schenck v. Township of Center, Butler County, 893 A.2d 849 (Pa. Cmwlth. 2006).
Further, Levy contends that the Senate misstates the narrow circumstances where client identities may be privileged. The Senate did not establish those narrow circumstances here.
In addition, Levy argues that the unidentified clients waived any privilege by seeking reimbursement from the third-party Senate.
In addition to his primary arguments, Levy makes other points. He generally contends that the Senate‟s alternate arguments (work product, grand jury secrecy and investigative exemption) are unpersuasive. Also, he decries the tenor of the Senate‟s written argument.*fn5
In its spirited written arguments on the merits, the Senate contends that this Court should conclude as a matter of law that the attorney-client privilege applies to protect client identities and the purpose or reasons why various attorneys were engaged. Relying on McGogney, Schenck and two advisory opinions from the Pennsylvania Bar Association Committee on Legal Ethics and Professional Responsibility, the Senate argues that Pennsylvania law protects the information redacted here.
Also, the Senate acknowledges the general rule that attorney billing records are generally not protected by the attorney-client privilege. However, the Senate urges application of either of two overlapping exceptions to the general rule which protect a client‟s identity in certain circumstances. The first is the legal advice exception, which arises where there is a strong possibility that disclosure of the fact of retention or of the details of a fee arrangement is tantamount to disclosing why the person sought legal advice in the first place. See United States v. Liebman, 742 F.2d 807 (3d Cir. 1984); In re Grand Jury Investigation, 631 F.2d 17 (3d Cir. 1980). The second overlapping exception is the confidential communications exception, which protects client identity and services performed by an attorney if, by revealing the information, the attorney would necessarily disclose confidential communications. The Senate cites federal cases beyond the Third District. According to the Senate, two of the records state on their face that they are related to an ongoing criminal grand jury investigation. Supplemental Reproduced Record (S.R.R.) at 140a, 145a. Moreover, "revelation of the services performed for the five clients would undoubtedly reveal the motive of the clients in seeking representation (i.e., to navigate the grand jury process), as well as the attorney‟s specific advice in navigating that ... process." Respondent Br. at 23.
The Senate further contends that indemnification of legal fees does not waive the attorney-client privilege. The Chief Clerk of the Senate, who is also the open records officer, is an agent of the Senate for purposes of privilege analysis. Pursuant to the Senate COMO Policy for the Payment of Legal Services,*fn6 he must preserve the privilege. The privilege can only be waived by the clients.
Finally, the Senate urges the merits of it alternate bases for redaction.
After the Supreme Court issued its decision in Gillard, both parties supplemented their arguments. Offering a broad interpretation, the Senate argued that the Court in Gillard expressly rejected Levy‟s contention that the attorney- client privilege is limited to confidential communications from a client. Thereafter, Levy rejoined that Gillard does not bring client identity within the privilege. Also, Gillard does not justify blanket redactions, nor does that decision impact the waiver issue.
1. Alternate Bases for Redaction
While the parties argue about other privileges and exemptions, those alternate bases for redaction are waived. This is because the only reason given by the Senate‟s Open Records Officer for the redaction was "the attorney-client privilege." R.R. at 3a; see Signature Information Solutions, LLC v. Aston Twp., 995 A.2d 510 (Pa. Cmwlth. 2010) (local agency not permitted to alter its reason for denying request on appeal to the Office of Open Records).
2. Attorney-Client Privilege a. Generally
The attorney-client privilege has deep historical roots and indeed is the oldest of the privileges for confidential communications in common law. Fleming; McGogney. It is designed to encourage trust and candid communication between lawyers and their clients. Gillard, ___ Pa. at ___, 15 A.3d at 57 (citing, among other authority, RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS §68 cmt. c (2000) (privilege "enhances the value of client-lawyer communications and hence the efficacy of legal services")).*fn7 The privilege affords derivativeprotection to attorney-to-client communications. Id. A broader range of derivative protection is appropriate to facilitate open communication. Id. Our Supreme Court recognizes the difficulty in unraveling attorney advice from client input and stresses the need for greater certainty to encourage the desired frankness. Id.
The attorney-client privilege often competes with other interests-of- justice factors. See id. The privilege here is in tension with the purpose of the Law, which is remedial legislation designed to promote access to official government information in order to prohibit secrets, scrutinize the actions of public officials, and make public officials accountable for their actions. Bowling.
The general rule is that, unless otherwise provided by law, a legislative record is accessible for inspection and duplication. Section 710(a) of the Law, 65 P.S. §67.701(a); McGogney. However, a legislative record is not presumed to be available in accordance with the Law if it is protected by a privilege. Section 305(b) of the Law, 65 P.S. §67.305(b). Similarly, privileged documents are excluded from the definition of "public record" by Section 102 of the Law. 65 P.S. §67.102; McGogney. Section 102 of the Law also defines "privilege" as including the attorney-client privilege. Id. Further, Section 506 of the Law states that an agency lacks discretion to release privileged information. 65 P.S. §67.506(c)(2); McGogney.
The party asserting the attorney-client privilege must initially set forth facts showing that the privilege is properly invoked. Fleming; see also Dep‟t of Transp. v. Office of Open Records, 736 A.2d 329 (Pa. Cmwlth. 2010) (agency failed to carry its burden of showing documents covered by privilege). This burden is similar to the burden imposed by the Law on an agency to justify a total or partial denial (redaction). Section 903 of the Law, 65 P.S. §67.903.
b. General Rules i. Client Identity
As to the issue of whether a client‟s identity falls within the scope of the attorney-client privilege, an American Law Reports 3rd (A.L.R.3d) article on that issue provides:
It has been said that the reason underlying the attorney-client privilege is to encourage a client to disclose fully the facts and circumstances of his case to his attorney without fear that he or his attorney will be compelled to testify as to the communications had between them. Since the privilege results in the exclusion of evidence it runs counter to the widely held view that the fullest disclosure of the facts will best lead to the truth and ultimately to the triumph of justice. In reconciling these conflicting principles the courts have pointed out that since the policy of full disclosure is the more fundamental one, the privilege is not to be viewed as absolute and is to be strictly limited to the purpose for which it exists.
There is general agreement among the courts that where an inquiry is directed to an attorney as to the name or identity of his client the attorney-client privilege is inapplicable even though the information was communicated confidentially to the attorney in his professional capacity, in some cases in spite of the fact that the attorney may have been sworn to secrecy. This principle has been supported, with some exceptions, in criminal and tax proceedings ... as well as in civil actions, the courts often basing its application on the premise that since the privilege presupposes the attorney-client relationship, it does not attach to its creation. It is therefore concluded that a client‟s identity, which is necessary proof of the existence of the relationship is, similarly, not privileged information. ...
While the disclosure of the name or identity of a client is generally held not, in and of itself, a matter within the attorney- client privilege, it has become so in situations in which so much has been divulged with regard to the legal services rendered or the advice sought, that to reveal the client‟s name would be to disclose the whole relationship and confidential communications. Thus, in a number of civil actions courts have declared a client's name privileged where the subject matter of the attorney-client relationship has already been revealed; and in criminal proceedings, particularly where the attorney is not the accused, courts have recognized that a client's name may be privileged if information already obtained by the tribunal, combined with the client's identity, might expose him to criminal prosecution for acts subsequent to, and because of, which he had sought the advice of his attorney. Similarly, in tax proceedings, some courts have declared a taxpayer-client's name privileged when so much has been revealed concerning the legal services rendered that the disclosure of the client's identity exposes him to possible investigation and sanction by government agencies. ...
In a number of cases the courts have held or recognized that, as a general principle, the name or identity of an undisclosed client is not proper subject matter for a confidential communication and will not ordinarily be treated as privileged information.
R.M. Weddle, Annotation, Disclosure of Name, Identity, Address, Occupation, or Business of Client as Violation of Attorney-Client Privilege, 16 A.L.R.3d 1047 (2008) (emphasis added) (footnotes omitted).
Further, as explained by Professor Paul R. Rice, in his treatise entitled Attorney-Client Privilege in the United States:
Establishing the existence of an attorney-client relationship usually requires the identification of the client. The client‟s identity, moreover, is not important to the substance of the legal advice or assistance sought. Therefore, that information is usually is not protected by the attorney client-privilege. This is also true of the names of prospective clients. Similarly, it does not protect the identity of those who are agents of the client, and through whom the client has communicated with the attorney. The client cannot reasonably assume that his identity will be confidential.
As explained in Behrens v, Hironimus[,] [170 F.2d 627, 628 (4th Cir. 1948)]:
The existence of the relationship of attorney and client is not a privileged communication. The privilege pertains to the subject matter, and not to the fact of employment as attorney, and since it presupposes the relationship of attorney and client, it does not attach to the creation of that relationship. So, ordinarily, the identity of the attorney‟s client, or the name of the real party in interest, or the terms of the employment will not be considered as privileged matter. The client or the attorney may be permitted or compelled to testify as to the fact of his employment as attorney, or as to the fact of his having advised his client as to a certain matter, or performed certain services for the client.
Paul R. Rice, ATTORNEY-CLIENT PRIVILEGE IN THE UNITED STATES, §6:14 (2d. ed. 1999) (footnotes omitted).
The parties do not cite any Pennsylvania state cases that directly answer the question of whether a client‟s identity is covered by the attorney-client privilege. Nevertheless, there are two early Pennsylvania Supreme Court cases that specifically recognize the rule that a client‟s identity is not shielded by the attorney-client privilege.
More specifically, in In re Seip‟s Estate, 163 Pa. 423, 30 A. 226 (1894), our Supreme Court explained that the mere fact of employment of an attorney is not privileged. Accord Sargent v. Johns, 206 Pa. 386, 55 A. 1051 (1903) (mere fact of employment of an attorney is not a confidential or privileged communication). As a result, the Court held that an attorney was competent to testify regarding his client‟s identity and an objection on the grounds of privilege could not prevail.
This rule was more clearly expressed by the Pennsylvania Supreme Court in Beeson v. Beeson, 9 Pa. 279, 1848 WL 5605 (Pa. 1848), where the Court explained:
With respect to the testimony of Mr. Veech[,] [an attorney], it is not objected that he was permitted to disclose the fact of his having been retained by Jesse Beeson .... It is conceded such an objection could not have prevailed, for an attorney is compellable to disclose, not only the name of the person by whom he was retained, but also the character in which his client employed him; whether as executor, trustee, or on his private account ....
Id., 1848 WL 5605, at *13 (emphasis added) (citation omitted).
Federal cases within the Third Circuit adhere to the rule that a client‟s identity is not privileged. See In re Grand Jury Investigation, 631 F.2d 17 (3d Cir. 1980) ("in the absence of unusual circumstances, the privilege does not shield ... the identity of clients ...."); In re Semel, 411 F.2d 195, 197 (3d Cir. 1969) ("In the absence of unusual circumstances, ... the identity of the client, the conditions of employment and the amount of the fee do not come within the privilege of the attorney-client relationship.") (emphasis added); Mauch v. Comm‟r of Internal
Revenue, 113 F.2d 555, 556 (3d Cir. 1940) (the "authorities are almost unanimous in excluding bare identity from the scope of the privilege."); United States v. Cedeno, 496 F.Supp.2d 562, 567 (E.D. Pa. 2007) (noting "the attorney-client privilege exists to protect confidential communications between a lawyer and a client; in most cases, the disclosure of a fee arrangement or a client's identity does not disclose the substance of any confidences.") (Citation omitted); see also United States v. Grand Jury Investigation, 401 F.Supp. 361 (W.D. Pa. 1975) (same).
The Senate relies on two informal advisory opinions from the Pennsylvania Bar Association Committee on Legal Ethics and Professional Responsibility which seek to protect client identity.*fn8 We greatly respect the thoughtful views of the Association; nevertheless, in light of the extensive and binding authority to the contrary, and mindful of the self-acknowledged limitations of the advisory opinions,*fn9 we decline the invitation to follow them in this context.
ii. Description of Legal Services
Similarly, attorney fee agreements and billing records are generally subject to disclosure in Pennsylvania. Thus, our Supreme Court in Commonwealth v. Chimel, 585 Pa. 547, 599, 889 A.2d 501, 531 (2005), a capital murder case, agreed with the trial court that "disclosure of a fee agreement between an attorney and client does not reveal a confidential communication." The Court held that "[b]ecause the [prior attorney‟s] testimony regarding the fee agreement ... does not disclose strategy or otherwise divulge confidential information, it is not subject to the attorney-client privilege." Id. at 599, 889 A.2d at 532.
Also, in Slusaw v. Hoffman, 861 A.2d 269 (Pa. Super. 2004), the Superior Court addressed production of invoices billed by attorneys to their client.
The client objected to production of the bills on the basis of the attorney-client privilege. Recognizing the derivative protection for confidential attorney-to-client communication, the Court nevertheless ordered production of the bills to the extent the bills did not disclose confidential communications from the client. The Court stated, "If the invoices contain any references to such confidential communications, those references can be redacted from the invoices." Id. at 373.
We reject as inapplicable much of the authority on which the Senate relies to shield from disclosure descriptions of legal services. In Schenk, a case under the former Right-to-Know Law, the attorney-client privilege was not at issue; rather, the case was decided on the basis of the work product rule applied during on-going litigation. Thus, that case is distinguished on both law and facts. In McGogney, a case under the current Law, the requestor did not contest application of a privilege; therefore, this Court did not decide the issue. McGogney, 13 A.3d at 571, n.6. Accordingly, that case is not helpful in resolving the current controversy.
The limited exception to the general rule is, according to Professor Rice, variously described as the "legal advice" or "confidential communications" exception. The Senate also relies on this exception. Regarding the client‟s identity, Professor Rice describes the exception in this way:
When the confidentiality of the client's identity has been
substantively linked to the advice that was sought, however, courts
have afforded it protection because disclosure would implicate the
client in the very matter upon which legal advice was being sought.‟
Under such circumstances the client could have a reasonable expectation that his identity would be
confidential. This exception has variously been described as the
legal advice‟ or confidential communications‟ exception.
Paul R. Rice, ATTORNEY-CLIENT PRIVILEGE IN THE UNITED STATES, §6:14 (2d. ed. 1999) (footnotes omitted).
We are unaware of any Pennsylvania state case that applied the exception to shield the name of a client.*fn10 However, the Third Circuit recognized the exception to the general rule when "so much of the actual communication had already been established, that to disclose the client's name would disclose the essence of a confidential communication ...." United States v. Liebman, 742 F.2d 807, 809 (3d Cir. 1984) (citations omitted). Thus, the identity of a client may become privileged if the person asserting the privilege can show "a strong probability that disclosure of the fact of retention or of the details of a fee arrangement would implicate the client in the very criminal activity for which the advice was sought." In re Grand Jury Investigation, 631 F.2d at 19.
Further, in addressing disclosure of a fee agreement, our Supreme Court in Chimel cited the Third Circuit decision In re Grand Jury Investigation for the proposition that the "attorney-client privilege does not protect fee agreements absent [the] strong probability that disclosure would implicate [the] client in [the] criminal activity for which client sought legal advice." Chimel, 585 Pa. at 599, 889 A.2d at 531-32. Given the existence of the Third Circuit cases and our
Supreme Court‟s recent citation to one of them, it is possible that the Court would apply the exception in the rare instance when it is appropriate.
Moreover, in Gillard the parties and the Supreme Court gave much attention to RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS.
Ultimately, the Court adopted a position on broad derivative privilege which is consistent with that set forth in the Restatement. See RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS §69 cmt. i (2000) (rejecting limitation on protection of lawyer communication unless it contains or expressly refers to a client communication in favor of broader rule). Under these circumstances, it is useful to examine the Restatement‟s approach to protection of a client‟s name and billing information. Comment g to Section 69 of the RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS (entitled "Attorney-Client Privilege--
g. Client identity, the fact of consultation, fee payment, and similar matters. Courts have sometimes asserted that the attorney-client privilege categorically does not apply to such matters as the following: the identity of a client; the fact that the client consulted the lawyer and the general subject matter of the consultation; the identity of a non-client who retained or paid the lawyer to represent the client; the details of any retainer agreement; the amount of the agreed-upon fee; and the client's whereabouts. Testimony about such matters normally does not reveal the content of communications from the client. However, admissibility of such testimony should be based on the extent to which it reveals the content of a privileged communication. The privilege applies if the testimony directly or by reasonable inference would reveal the content of a confidential communication. But the privilege does not protect clients or lawyers against revealing a lawyer's knowledge about a client solely on the ground that doing so would incriminate the client or otherwise prejudice the client's interests. ...
RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS §69 cmt. g (2000).*fn11
d. In Camera Judicial Review
After careful in camera judicial review, the Court identified specific descriptions of legal services which implicate confidential communications between the clients and the attorneys. Those will be redacted in accordance with the recommendations of our special master, Senior Judge Kelley. The general descriptions of legal services, however, do not ...