HomeMy WebLinkAbout2010-7853
PROTECT BLACKSBURG, : IN THE COURT OF COMMON PLEAS OF
RICKY PENNINGTON, GLORIA : CUMBERLAND COUNTY, PENNSYLVANIA
AND GEORGE BUSHKO, :
Plaintiffs : CIVIL ACTION – LAW
: NO. 10-7853 CIVIL
vs. :
:
SOUTH CAROLINA DEPART- :
MENT OF HEALTH AND :
ENVIRONMENTAL CONTROL :
AND SLOAN CONSTRUCTION :
COMPANY, INC., :
Defendants :
IN RE: OPINION PURSUANT TO RULE 1925
BEFORE HESS, P.J.
In this civil case, Nathan C. Wolf, Esquire, was directed to appear at a scheduled
deposition for the purpose of disclosing the identity of the source of certain deposit(s) referenced
in Letters Rogatory received by us from the Honorable Shirley C. Robinson, an Administrative
Law Judge in South Carolina, and/or requesting a corporate designee of Sovereign Bank to do
the same. (Order of Court, Jan. 13, 2011). Mr. Wolf, having indicated that he intended to assert
the attorney/client privilege at any deposition and would thereby be refusing to make the
requested disclosure, was adjudged in contempt. (Order of Court, Jan. 13, 2011). Thereafter,
Mr. Wolf filed a notice of appeal to the Pennsylvania Superior Court on January 18, 2011.
(Notice of Appeal, filed Jan. 18, 2011). The basis for the appeal may be summarized as follows:
Whether the January 13, 2011 Order of Court, directing Mr. Wolf to appear for a
scheduled deposition for the purpose of disclosing the identity of the source of the
deposit(s) and/or requesting a corporate designee of Sovereign Bank to do the
same, and thereafter adjudging him in contempt, was in error as a result of the
attorney/client privilege claimed by Mr. Wolf?
This opinion in support of the January 13, 2011, Order of Court is written pursuant to
Pennsylvania Rule of Appellate Procedure 1925(a).
The facts of this case may be summarized as follows. A lawsuit was initiated in South
Carolina wherein Plaintiffs sought to reverse a decision from the South Carolina Department of
Health and Environmental Control approving permits for a quarry to be operated and developed
by Defendant Sloan Construction Company, Inc. (hereinafter “Sloan”). Plaintiffs are members
of a citizen’s group called “Protect Blacksburg” who reside adjacent to the quarry site. Plaintiffs
have opposed the issuance of the permits claiming that, as a result of the permits, they will be
exposed to potential injury in the form of lost property values and the quiet enjoyment of their
property.
In the South Carolina litigation, Sloan sought to discover the source of Plaintiffs’
finances for the litigation, believing that Plaintiffs may actually be receiving funding from a
Sloan competitor. The Administrative Law Judge in South Carolina determined that the
information sought by Sloan was both relevant and discoverable; as a result, that court issued
orders which were used to obtain financial records from Plaintiffs. Plaintiffs’ financial records
indicated that the group was, in large part, being funded by checks written from the IOLTA
account of Wolf & Wolf, a Carlisle, Pennsylvania law firm, and signed by Nathan C. Wolf,
Esquire. The total amount received by Protect Blacksburg from Attorney Wolf’s Sovereign
Bank IOLTA account was $26,160.15. Because Sloan was still unable to determine the source
of the funding, Sloan filed a Motion to take Document Depositions outside the State of South
Carolina which requested that the Administrative Law Court issue Letters Rogatory to the
Commonwealth of Pennsylvania. The motion requested that the Letters Rogatory seek the
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issuance of a subpoena requiring the deposition of Attorney Wolf and/or a corporate
representative of the bank for the purpose of producing documents which would identify the
source of the funds sent to Plaintiffs.
The South Carolina court granted the Motion and issued Letters Rogatory on December
20, 2010, which were thereafter filed with the Cumberland County Prothonotary on December
22, 2010. Upon receiving the Letters Rogatory, local counsel for Sloan notified both Attorney
Wolf and the undersigned, and a conference was held in chambers. At that time, Attorney Wolf
indicated that he would invoke the attorney-client privilege concerning the request for his
client’s name, and he claimed that he could not produce the documents requested in the subpoena
as a result.
Following the conference, briefs were requested from the parties and argument was
conducted on the record. Subsequently, we issued the following order:
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AND NOW, this 13 day of January, 2011, pursuant to Letters Rogatory issued
by Administrative Law Judge Shirley C. Robinson in and for Columbia, South
Carolina, and following argument on the matter of privilege, Nathan C Wolf,
Esquire, is directed to appear at a scheduled deposition for the purpose of
disclosing the identity of the source of the deposit(s) referenced in said Letters
and/or request a corporate designee of Sovereign Bank to do the same. Mr. Wolf,
having indicated that he intends to assert the attorney/client privilege at any
deposition and will decline to make the requested disclosure, he is adjudged in
contempt. Sanctions in the matter are stayed pending the perfection of an appeal
in this case.
(Order of Court, Jan. 13, 2011).
Initially, we note that because the South Carolina court has already determined that the
information being sought by Defendants is both relevant and discoverable, the full faith and
credit clause of the United States Constitution precludes this court from engaging anew in an
examination of its relevancy and discoverability. U.S. Const. Art. IV, § 1. “[F]ull faith and
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credit typically requires that a state give a judgment the same res judicata effect the judgment
would have been afforded in the state which it was rendered.” Wilkes ex rel. Mason v. Phoenix
Home Life Mutual Ins. Co., 587 Pa. 590, 902 A.2d 366, 375-76 (2006), cert denied, Wilkes v.
Phoenix Home Life Mut. Ins. Co., 549 U.S. 1054, 127 S.Ct. 688 (2006).
The attorney-client privilege has long been rooted in the administration of justice; it
being inherently essential to the sound administration of justice that client and advocate be
allowed to fully and freely communicate, the privilege is founded in the need for the advocate to
possess all reasons the client may have for seeking representation. Beltzhoover v. Blackstock, 3
Watts 20, 1834 WL 3292 (Pa. 1834); Upjohn Co. v. United States, 449 U.S. 383, 101 S.Ct. 677,
66 L.Ed.2d 584 (1981). The Pennsylvania Supreme Court has held the intended beneficiary of
the privilege not to be the individual client, but rather the “sound administration of justice which
depends on frank and open client-attorney communication.” In Re Investigating Grand Jury of
Philadelphia Co., 527 Pa. 432, 440, 593 A.2d 402, 406 (1991). As a result, the attorney-client
privilege “exists only to aid in the administration of justice, and when it is shown that the interest
of justice can only be frustrated by the exercise of the privilege, the court may require the
communication to be disclosed.” Brennan v. Brennan, 281 Pa. Super. 362, 422 A.2d 510 (1980).
In Pennsylvania, the attorney-client privilege is codified in statutory law at 42 Pa. C.S.A.
§ 5928. The statute provides that, “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. While the privilege is statutorily mandated, it has certain
requirements which must be satisfied in order to trigger its protections. “First and foremost is the
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rule that the privilege applies only to confidential communications made by the client to the
attorney in connection with providing legal services.” Gocial v. Independence Blue Cross, 2003
Pa. Super. 242, ¶ 21, 827 A.2d 1216, 1222 (citing Slater v. Rimar, Inc., 462 Pa. 138, 148, 338
A.2d 584, 589 (1975); Commonwealth v. duPont, 730 A.2d 970, 977 (Pa. Super. 1999), appeal
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denied, 561 Pa. 669, 749 A.2d 466 (2000)). It is clear, therefore, that for the privilege to
become applicable there must be a confidential communication, between attorney and client,
made in connection with the providing of legal services. duPont, 730 A.2d at 977.
The question of whether the attorney-client privilege protects a particular communication
from disclosure is a question of law to be decided by the court. Nationwide Mutual Ins. Co. v.
Fleming, 2007 Pa. Super. 145, ¶ 16, 924 A.2d 1259, 1265 (citing In re Estate of Wood, 2003 Pa.
Super. 72, ¶ 8, 818 A.2d 568, 571. Much has been written regarding the distinction between a
communication from a client to an attorney and a communication from an attorney to a client. It
is well-settled that communications which flow from a client to an attorney are protected. See
Nationwide Mutual Ins. Co., 2007 Pa. Super. 145, ¶ 12. Indeed, the title of § 5928 reads
“Confidential communications to attorney.” 42 Pa. C.S.A. §5928 (emphasis added). It has also
been held, however, that communications which flow from an attorney to a client will also be
protected “to the extent the communications are based upon confidential facts that the client
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[F]our elements must be satisfied in order to successfully invoke 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.
Carbis Walker, LLP v. Hill, Barth and King, LLC, 2007 Pa. Super. 221, ¶ 10, 930 A.2d 573, 579 (citing Nationwide
Mutual Ins. Co. v. Fleming, 2007 PA Super 145, ¶ 9, 924 A.2d 1259(internal quotation marks and citations
omitted)).
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disclosed initially to the attorney.” Slusaw v. Hoffman, 2004 Pa. Super. 354, ¶ 12, 861 A.2d 269,
273. In either event, however, there is no dispute regarding the nature of those communications;
they must be “confidential” and “made in connection with the providing of legal services or
advice.” Nationwide Mutual Ins. Co., 2007 Pa. Super. 145, ¶ 12.
After review, no Pennsylvania case appears to specifically address the issue sub judice. It
is clear, however, that a communication made from a client to an attorney must be confidential.
Standing on its own, it is also clear that a “confidential communication,” by definition, is one
which must be made in confidence between the client to the attorney, and the confidence is the
reasonable belief that the attorney will not thereafter disclose the information to a third party, or
otherwise transmit that information other than in furtherance of that client’s interest. The
definition of “confidential communication” is, therefore, extremely broad. It does not follow,
however, that the definition is all-inclusive.
Because Pennsylvania courts do not typically favor evidentiary privileges, as they are in
derogation of the search for the truth, our courts have held that, in general, in order to justify
such a privilege, the confidentiality of the communication is one which should also be “essential
to the full and satisfactory maintenance of” the relationship which seeks to assert that privilege.
See Matter of Adoption of Embick, 351 Pa.Super. 491, 502, 506 A.2d 445, 461 (1986) (upholding
a lower court’s decision to permit a psychologist to testify despite the psychologist-client
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privilege statute). With regards to a client’s identity, it cannot be said that confidentiality of a
client’s name, and only his name, is “essential to the full and satisfactory maintenance of” the
attorney-client relationship. The name or identity of a client is not a communication to an
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It should be noted that the range of applicability of Pennsylvania’s psychologist-client privilege has been defined
as being the same as the attorney-client privilege. 42 Pa.C.S. § 5944.
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attorney which a person could reasonably expect to be protected from disclosure. Indeed, a
client comes to an attorney in order for that attorney to act as an advocate on his behalf, and,
furthermore, as one who is to speak for the client. Black’s Law Dictionary defines “advocate” as
“[a] person who assists, defends, pleads, or prosecutes for another” and also as “[a] person who
is trained in both canon and secular law and can (1) appear in an ecclesiastical or admiralty court
on another's behalf. . . .” B’LD (9th ed. 2009) (emphasis added). It flows
LACKS AW ICTIONARY
from the definition that one who is to act on another’s behalf must, when called on to do so,
identify himself and acknowledge the person for whom he speaks. It cannot realistically be
believed that an attorney, who is to speak for someone else, is able to refuse to disclose the name
of his client because the attorney considers the client’s identity to be a “confidential
communication” within the meaning of the attorney-client privilege. In other words, the name of
a client, while, in a sense, a communication, is not one which would fall within the general realm
of a confidential communication protected by the attorney-client relationship.
It can even be argued that the “sound administration of justice” is frustrated by an
attorney’s refusal to identify his client. The attorney-client privilege ought not to act as a shield
to prevent disclosure of the identity of a client when an attorney is called upon by the court to do
so.
A client’s identity is also not protected by the attorney-client privilege for the additional
reason that the identity alone is not a confidential communication “made in connection with the
providing of legal services or advice.” Nationwide Mutual Ins. Co., 2007 Pa. Super. 145, ¶ 12
(emphasis added). Just as not every communication between a client and an attorney is
confidential, neither is every communication between a client and an attorney made in
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connection with the provision of legal services or advice. The privilege only applies if a
communication is made for the purpose of securing either legal services or an opinion of law.
That is to say, the privilege “only applies where the client’s ultimate goal is legal advice.”
National Railroad Passenger Corp. v. Fowler, 788 A.2d 1053 (Pa. Commw. Ct. 2001). In the
context of the case sub judice, Attorney Wolf accepted money into his IOLTA account, not for
the purpose of giving legal advice to his unidentified client, but rather, simply to shield the
identity of a “client” in order that the client remain unknown in the South Carolina litigation.
In Slusaw v. Hoffman, supra, the Superior Court held that the trial court had not abused
its discretion by denying a motion to quash subpoenas which sought to elicit testimony regarding
the attorneys’ work as guardian ad litem. Slusaw, 2004 Pa. Super. 354, ¶¶ 9-10. That court held
that the attorney-client privilege could not be claimed to prohibit the production of invoices
received by a client from his attorneys. Slusaw, 2004 Pa. Super. 354, ¶¶ 11-13. The court found
that “[t]he subpoenaed invoices are not privileged documents to the extent that they do not
disclose confidential communications which Slusaw disclosed to Attorneys Wallitsch and
Reich.” Id. at ¶ 13.
In Marian Bank v. Lawrence Voluck Associates, Inc., Marian Bank obtained a judgment
against the defendant and thereafter filed writs of execution and interrogatories in attachment
against defendant’s attorney. Marian Bank v. Lawrence Voluck Associates, Inc., 26 Pa.D. &
C.3d 48 (1982). The defendant’s attorney claimed that he could not answer the interrogatories
because of the attorney-client privilege. The court held that it was “well-established” that an
attorney may be “examined as to the existence of the relationship of the attorney and client.”
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Marian Bank, 26 Pa D. & C. 3d at 52 (citing Sargent v. Johns, 206 Pa. 386 (1903), 8 Wigmore
§2313). The court also found the following:
It is of the very essence of the attorney-client privilege that it be limited to those
communications which the client either expressly made confidential or which the
client could reasonably assume under the circumstances would be understood by
the attorney to be confidential: McCormick §91; 8 Wigmore § 2311 (“the
privilege assumes, of course, that the communications are made with the intention
of confidentiality.”) The mere relationship does not raise a presumption of
confidentiality, and in order to be privileged, the circumstances must indicate that
the communication was of a sort intended to be confidential.
Id. It is clear, therefore, that the mere acknowledgement and identification of the existence of an
attorney-client relationship is not one which lends itself to the protection of the privilege.
The Third Circuit has also held as much. In Maulch v. Commissioner of Internal
Revenue, infra, the Third Circuit Court of Appeals held that the court has the right to know that
the “client whose secret is treasured is actual flesh and blood, and demand his identification, for
the purpose, at least, of testing the statement which has been made by the attorney who places
before him the shield of this privilege.” Maulch v. Commissioner of Internal Revenue, 113 F.2d
555, 557 (3d Cir. 1940) (quoting Tomlinson v. United States, 68 App.D.C. 106, 93 F.2d 652,
655). While this case is not binding on this court with regard to the attorney-client privilege, we
conclude that requesting the identity of a client is an entirely reasonable right of a court.
Accordingly, we continue to be satisfied that our Order of Court, dated January 13, 2011,
directing Attorney Wolf to appear at a scheduled deposition for the purpose of disclosing the
identity of the source of certain deposit(s) referenced in Letters Rogatory received by us from the
Honorable Shirley C. Robinson, an Administrative Law Judge in South Carolina, and/or
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requesting a corporate designee of Sovereign Bank to do the same, was properly entered.
March 1, 2011 __________________________
Kevin A. Hess, P.J.
John Martin Foster, Esquire
For the Plaintiffs
Roger Page Hall, Esquire
Stephen P. Hightower, Esquire
For SCDHEC
George B. Faller, Esquire
Hubert X. Gilroy, Esquire
Katie J. Maxwell, Esquire
For the Defendant Sloan Construction
Nathan C. Wolf, Esquire
:rlm
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