Although many lawyers assume that the attorney-client privilege primarily protects their legal advice to clients, this self-centered approach is historically inaccurate. The privilege developed in Roman times, evolved in Elizabethan England and came to America primarily to protect clients’ relaying of facts to their lawyers. Although courts protect communications running the other way, they disagree about whether lawyer-to-client communications deserve protection only if they “disclose” the client’s confidences, “reflect” such confidences, or relate in some other way to the client’s communications to the lawyer.
For some reason, Pennsylvania courts seem obsessed with this issue. Several Pennsylvania courts have issued lengthy opinions about whether the privilege applies at all to lawyer-to-client communications. In Gillard v. AIG Insurance Co., 15 A.3d 44, 2011 Pa. LEXIS 393 (Pa. 2011), the Pennsylvania Supreme Court finally spoke on the issue. The court held that in 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.” Id. at *40. However, two of the Supreme Court’s six justices issued lengthy dissents.
Although this debate generates interest among academics and in the abstract, as a practical matter even a fairly narrow protection for lawyer-to-client communications suffices for most clients.