February 10, 2014
MYRNA COHEN Appellant
MOORE BECKER, P.C. AND JEFFREY D. ABRAMOWITZ Appellees
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 AND WHO MOVES FOR A PROTECTIVE ORDER AND OBJECTS TO A BROAD SUBPOENA FOR HIS CASE FILE AND MATERIALS WHICH WOULD INCLUDE ATTORNEY-CLIENT PRIVILEGED DOCUMENTS, HIS MENTAL IMPRESSIONS AND ATTORNEY WORK PRODUCT, WHERE SUCH OBJECTIONS WERE AVAILABLE UNDER RULE 4009.2L(D)(2)?
(Attorney Farber's Brief at 4).
As a preliminary matter, we observe that there is considerable discord between the questions raised in Attorney Farber's appellate brief and his petition for permission to appeal. Notably, Attorney Farber's brief argues three distinct matters: the waiver of the twenty-day period for objecting to service of a subpoena on a non-party; the timeliness of his objection to the subpoena; and the sweep of the subpoena with respect to mental impressions/attorney work product. These matters are not even remotely related to the question Attorney Farber certified as the controlling issue of law for review, upon which this Court granted permission to appeal. See Pa.R.A.P. 1312(a)(4) (stating: "Only the questions set forth in the petition, or fairly comprised therein, will ordinarily be considered by the court in the event permission to appeal is granted"). Neither issues of timeliness nor work product privilege were set forth in or fairly suggested by the petition for permission to appeal. As such, we decline to address these particular claims.
The single question for our review is whether a plaintiff in a legal malpractice case can waive her attorney-client privilege with an attorney who is not directly involved in the legal malpractice case? Because of its brevity, we set forth Attorney Farber's argument in its entirety:
Abramowitz' counsel's request for Attorney Farber's protected materials violated the clear intent of Rule 4003.3, and has caused Farber to be in a position of objecting to the broad discovery requests to avoid the violation of the codified attorney-client privilege statutes of the Pa Judicial Code, 42 Pa.C.S. Sections 5916 and 5928 which would entail possible other consequences. Furthermore, despite Abramowitz' arguments to the contrary made to the learned Court below, attorney-client communications are privileged as a two-way street from client to attorney and attorney to client. Gillard v. AIG Ins. Co., [609 Pa. 65, 15 A.3d 44 (2011)].
(Attorney Farber's Brief at 11-12) (underline in original). 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. Attorney Farber concludes we should reverse the court's order granting Mr. Abramowitz and his former law firm's motion to compel. We disagree.
Pennsylvania law defines the attorney-client privilege by statute as follows:
§ 5928. Confidential communications to attorney
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.A. § 5928. In this regard, our Supreme Court recently held: "[I]n Pennsylvania, the attorney-client privilege operates in a two-way fashion to protect confidential client-to-attorney or attorney-to-client communications made for the purpose of obtaining or providing professional legal advice." Gillard, supra at 88-89, 15 A.3d at 59. In reaching this holding, the Gillard Court began by restating the historically acknowledged purpose of the privilege, i.e., to encourage free and open communications between counsel and client that will lead to a trusting and candid discourse. Id. at 75-76, 15 A.3d at 51.
Nevertheless, established Pennsylvania law makes clear that the client owns this privilege: "The purpose of the attorney-client privilege is to benefit the client, and accordingly, the client is the holder of the privilege." Maleski v. Corporate Life Ins. Co., 646 A.2d 1, 4 (Pa.Cmwlth. 1994). Additionally, "[T]he right to assert the privilege is that of the client." Commonwealth v. McKenna, 213 A.2d 223, 226 (Pa.Super. 1965) (citing Appeal of McNulty, 135 Pa. 210, 19 A. 936 (1890). Gillard did not disturb the traditional understanding that the client holds the attorney-client privilege; it elaborated solely on the scope of that privilege. See generally Gillard, supra.
Attorney-client privilege is not automatic; it must be invoked successfully by the satisfaction of a four-element test:
Pennsylvania law imposes a shifting burden of proof in disputes over disclosure of communications allegedly protected by attorney-client privilege. The party invoking a privilege must initially set forth facts showing that the privilege has been properly invoked; then the burden shifts to the party seeking disclosure to set forth facts showing that disclosure will not violate the attorney-client privilege, e.g., because the privilege has been waived or because some exception applies. Accordingly, if the party asserting the privilege does not produce sufficient facts to show that the privilege was properly invoked, then the burden never shifts to the other party, and the communication is not protected under attorney-client privilege.
Four elements must be satisfied in order to invoke successfully the protections of attorney-client privilege:
1) The asserted holder of the privilege is or sought to become a client.
2) The person to whom the communication was made is a member of the bar of a court, or his subordinate.
3) The communication relates to a fact of which the attorney was informed by his client, without the presence of strangers, for the purpose of securing either an opinion of law, legal services or assistance in a legal matter, and not for the purpose of committing a crime or tort.
4) The privilege has been claimed and is not waived by the client.
Custom Designs & Mfg. Co. v. Sherwin-Williams Co., 39 A.3d 372, 376 (Pa.Super. 2012), appeal denied, ___ Pa. ___, 57 A.3d 71 (2012) (internal citations and quotation marks omitted).
Instantly, Ms. Cohen did not object to service of the subpoena at issue or invoke her attorney-client privilege as to her relationship with Attorney Farber. See id. Indeed, the record fairly supports the trial court's finding that Ms. Cohen waived the 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, even as it extends to Attorney Farber's communications to Ms. Cohen in other matters. Id. Attorney Farber's attempt to assert the attorney-client privilege on behalf of Ms. Cohen is similarly without effect. Attorney Farber is a non-party to the legal malpractice litigation, without capacity to invoke the attorney-client privilege on behalf of Ms. Cohen in that action. Accordingly, we affirm.