Appeal from the Order March 26, 2012 In the Court of Common Pleas of Westmoreland County Civil Division at No(s): 8424 of 2008
BEFORE: BENDER, J., GANTMAN, J., and OLSON, J.
Mr. Shelly Farber, Esquire, appears before us in this permissive appeal of an interlocutory order, entered in the Westmoreland County Court of Common Pleas, which overruled his objections to a discovery subpoena. For the reasons that follow, we affirm.
The relevant facts and procedural history of this appeal are as follows. Ms. Myrna Cohen hired Attorney Jeffrey D. Abramowitz and his former law firm, Moore Becker, P.C. to represent her in social security disability and various other actions. Sometime between February 2005 and July 2006, Ms. Cohen hired Attorney Farber to represent her in the social security disability action, among others. Moore Becker P.C. transferred Ms. Cohen's files to Attorney Farber. Separately, Ms. Cohen hired Attorney John E. Quinn of Portnoy & Quinn, LLC to represent her in the legal malpractice action she filed against Mr. Abramowitz and his former law firm.
In the course of discovery in the malpractice action, Mr. Abramowitz and his former law firm served Attorney Farber with a subpoena, directing him to produce all things, records, and documents pertaining to Ms. Cohen. The subpoena also directed Attorney Farber to produce all documents pertaining to Ms. Cohen's claims or potential claims for social security disability and or social security supplemental income, which included documents connected to Attorney Farber's legal representation of Ms. Cohen in those matters. Ms. Cohen's counsel in the malpractice action did not object to the subpoena or assert any attorney-client privilege on Ms. Cohen's behalf.
After service of the subpoena on Attorney Farber, he filed a motion for a protective order in the trial court on February 9, 2012, objecting to the subpoena as overly broad and seeking privileged matters, due to his ongoing and past attorney-client relationship with Ms. Cohen in other cases. On March 26, 2012, Mr. Abramowitz and his former law firm filed a motion to compel Attorney Farber to comply with the subpoena, which the trial court granted that same date.
Attorney Farber filed a petition for permission to appeal with this Court on April 25, 2012, pursuant to Pa.R.A.P. 1311. In his petition he set forth as the controlling question of law for our review:
Can a plaintiff in a legal malpractice case effectively waive attorney-client privilege with attorneys not directly involved in the legal malpractice case who have advised her to maintain, and insist on maintaining such a privilege in part due to the pendency of another legal claim?
(Petition For Permission to Appeal, 4/25/12, at 1-2). In support of his petition, he contended that, notwithstanding any "waiver" of privilege by Ms. Cohen's legal malpractice attorneys, Attorney Farber has a "two-way street" attorney-client privilege relating to his ongoing Social Security case and legal malpractice counsel could not waive any privilege Ms. Cohen maintained with Attorney Farber. (Id.) In response to Attorney Farber's petition, this Court granted leave to appeal on June 14, 2012.
Attorney Farber presents the following issues for our review:
WAS THERE AN EFFECTIVE WAIVER OF THE TWENTY DAY WAITING PERIOD TO A SUBPOENA FOR RECORDS ISSUED BY THE WRONG COURT (ALLEGHENY COUNTY COURT OF COMMON PLEAS) APPLICABLE TO A NEW LATER SUBPOENA ISSUED BY THE CORRECT COURT (WESTMORELAND COUNTY COURT OF COMMON PLEAS) WHERE NO MANDATORY "NOTICE OF INTENT" TWENTY DAY WAITING PERIOD AFTER ISSUANCE OF THE CORRECTED SUBPOENAS WAS GIVEN TO OPPOSING COUNSEL AND THEREFORE NO WAIVER WAS OR COULD HAVE BEEN ISSUED AT ANY TIME TO THE CORRECT SUBPOENAS?
WHETHER THE LEARNED JUDGE ANTHONY MARSILI ERRED AS A MATTER OF LAW IN CONCLUDING THAT, WHEN PETITIONER'S (NOW FORMER) ATTORNEYS IN THE INSTANT CASE PURPORTEDLY WAIVED THE TWENTY DAY PERIOD FOR OBJECTING TO THE SUBPOENA FOR ALL OF ATTORNEY FARBER'S RECORDS, PETITIONER HAD WAIVED HER ATTORNEY-CLIENT PRIVILEGE WITH HER "NON-PARTY" ONGOING SOCIAL SECURITY CASE ATTORNEY (MR.) FARBER CONCERNING HIS FILES AND HIS WORK PRODUCT, WHERE FARBER HAS ALWAYS ASSERTED TO PETITIONER AND ON HER BEHALF THAT HIS FILES AND WORK PRODUCT WERE PRIVILEGED AND ONCE SERVED WITH THE SUBPOENA HE, ON BEHALF OF PETITIONER, ASSERTED TIMELY OBJECTIONS TO THE TWICE CORRECTED SUBPOENA CITING ATTORNEY-CLIENT PRIVILEGE AND THE ESSENCE OF PA.R.C.P. 4003.3 REGARDING HIS MENTAL IMPRESSIONS AND ATTORNEY WORK PRODUCT? OR, IN A MORE BASIC FORM, CAN AN ATTORNEY ON BEHALF OF A CLIENT WAIVE THE ATTORNEY-CLIENT AND WORK-PRODUCT PRIVILEGE THE CLIENT MAINTAINS WITH ANOTHER ATTORNEY IN ANOTHER ONGOING CASE WHERE THE SECOND ATTORNEY HAS CONTINUALLY ADVISED CLIENT TO MAINTAIN HER PRIVILEGE WITH THE SECOND ATTORNEY ...