Pondering the Privilege: Think Twice Before Firing Off Written Advice

In 2007, the Superior Court of Pennsylvania dealt a body blow to the attorney-client privilege when it concluded that a memorandum by an in-house lawyer to the senior members of an insurance company was not protected from disclosure by the attorney-client privilege because it did not involve a confidential communication from the client to the lawyer.  Nationwide Mutual Insurance Company v. Fleming, 207 Pa.Super. 145 (2007). 

The ruling was premised on a narrow view of the statutory codification of the privilege.  It left counsel scratching their heads on how they could protect communications with their clients.  The ruling was ultimately affirmed because Supreme Court of Pennsylvania evenly split on how to decide the issue.