MacQuown v. Dean Witter Reynolds Inc.

47 Pa. D. & C.3d 21, 1987 Pa. Dist. & Cnty. Dec. LEXIS 99
CourtPennsylvania Court of Common Pleas, Alleghany County
DecidedMay 4, 1987
Docketno. G.D. 85-20356
StatusPublished
Cited by1 cases

This text of 47 Pa. D. & C.3d 21 (MacQuown v. Dean Witter Reynolds Inc.) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Alleghany County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
MacQuown v. Dean Witter Reynolds Inc., 47 Pa. D. & C.3d 21, 1987 Pa. Dist. & Cnty. Dec. LEXIS 99 (Pa. Super. Ct. 1987).

Opinion

WETTICK, A. J.

This lawsuit arises out of previous litigation between Dean Witter Reynolds Inc., and plaintiffs in which Dean Witter was represented by the law firm of Thorp, Reed and Armstrong, Through discovery, plaintiffs have requested Thorp, Reed to produce all written communications and to provide a narrative statement of all oral communications from Thorp, Reed to Dean Witter in connection with the previous litigation. Thorp, Reed has refused to furnish this information on the basis of the attorney-client privilege.1 Plaintiffs’ motion to compel Thorp, Reed to [22]*22provide this information is the subject of this opinion and order of court.

Dean Witter has not raised reliance on the advice it received from counsel in the previous litigation as a defense to this lawsuit. Consequently, there has been no waiver of any attorney-client privilege that would protect the information which plaintiffs seek.

Plaintiffs concede that the information which they seek was furnished by Thorp, Reed to Dean Witter pursuant to an attorney-client relationship. However, this information, according to plaintiffs, is outside the scope of the attorney-client privilege because that privilege protects only communications from the client to counsel and the information which plaintiffs seek is limited to communications from counsel to the client.

The attorney-client privilege is a fundamental precept in our body of common law that is presently codified in the Act of July 9, 1976, P.L. 586, §2, 42 Pa.C.S. §5928:

“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 the privilege is waived upon the trial by the client.”

Not all information which an attorney obtains during the representation of a client is protected by the attorney-client privilege. The purpose of the privilege is to foster an open attorney-client dialogue essential for the proper representation of a client. Accordingly, the privilege protects only disclosures necessary to obtain informed legal advice which might not have been made absent the privilege. Brennan v. Brennan, 281 Pa. Super. 362, 422 A.2d 510, 513-15 (1980); Cohen v. Jenkintown Cab Co., 238 Pa. Super. 456, 357 A.2d 689 (1976). The oft-[23]*23cited case of United States v. United Shoe Machinery Corp., 89 F. Supp. 357, 358-9 (D. Mass., 1950) formulated criteria for the attorney-client privilege that have been widely accepted.

“The privilege applies only if (1) the asserted holder of the privilege is or sought to become a client; (2) the person to whom the communication was made (a) is a member of the bar of a court, or his subordinate and (b) in connection with this communication is acting as a lawyer; (3) the communication relates to a fact of which the lawyer was informed (a) by his client (b) without the presence of strangers (c) for the purpose of securing primarily either (i) an opinion of law or (ii) legal services or (ill) assistance in some legal proceeding, and not (d) for the purpose of committing a crime or tort; and (4) the privilege has been (a) claimed and (b) not waived by the client.”

These criteria appear to be required by the Pennsylvania appellate courts. See Brennan v. Brennan, supra; Loutzenhiser v. Doddo, 436 Pa. 512, 260 A.2d 745 (1970); Tracy v. Tracy, 377 Pa. 420, 105 A.2d 122 (1954); Nadler v. Warner Co., 321 Pa. 139, 184 Atl. 3 (1936); Cridge’s Estate, 289 Pa. 331, 137 Atl. 455 (1927); Alexander v. Queen, 253 Pa. 195, 97 Atl. 1063 (1916); Turner v. Warren, 160 Pa. 336, 28 Atl. 781 (1894); Commonwealth v. Trolene, 263 Pa. Super. 263, 397 A.2d 1200, 1204-5 (1979); Zimmerman v. Berrie, 10 D.&C.3d 110 (1979); Trzesniowski v. Erie Insurance Exchange, 59 D.&C.2d 44 (1973); and In Re Westinghouse Electric Corporation Uranium Contracts Litigation, 76 F.R.D. 47, 56-7 (W.D. Pa., 1977).

There is no merit to plaintiffs’ contention that the attorney-client privilege does not protect any statements and writings which counsel made or furnished to the client. The attorney-client privilege [24]*24bars counsel from revealing the contents of any confidential communication made by the client to counsel. Thus, if any statement or writing from counsel to the client would reveal the contents of a confidential communication made by the client to counsel, the statement or writing is protected by the attorney-client privilege. City of Shamokin v. West End National Bank, 22 D.&C.3d 232 (1982); Northampton Borough Municipal Authority v. Remsco Associates, Inc., 22 D.&C.3d 541, 550 (1981); Eiseman v. Hornberger, 44 D.&C.2d 128 (1968); and Coastal States Gas Corp. v. Department of Energy, 617 F.2d 854, 862 (D.C. Cir., 1980).

This court’s position is consistent with Professor Wigmore’s discussion of this aspect of the attorney-client privilege.

“Communications by the attorney to the client

“That the attorney’s communications to the client are also within the privilege was always assumed in the earlier cases and has seldom been brought into question. The reason for it is not any design of securing the attorney’s freedom of expression, but the necessity of preventing the use of his statements as admissions of the client (section 1071 supra), or as leading to inferences of the tenor of the client’s communications — although in this latter aspect, being hearsay statements, they could seldom be available at all (section 1063 supra).” (emphasis in original). 8 Wigmore’s Evidence (McNaughton Rev., 1961) §2320 (pp. 628-9).

But the attorney-client privilege protects only confidential information which the client furnished counsel.2 It does not protect any information which [25]*25counsel obtained from third parties in the course of the representation. Thus, any communications from counsel to the client disclosing information from third parties would not be protected because the underlying communication between counsel and the third party is not protected.

In the case of In Re Westinghouse Electric Corporation Uranium Contracts Litigation, supra, the court protected communications by counsel to the client only to the extent that the communications were based on confidential information which the client furnished counsel:

“The statute is essentially a codification of the common law privilege. Cohen v. Jenkintown Cab Co., 238 Pa. Super. 456, 462 n.2, 357 A.2d 689

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Bluebook (online)
47 Pa. D. & C.3d 21, 1987 Pa. Dist. & Cnty. Dec. LEXIS 99, Counsel Stack Legal Research, https://law.counselstack.com/opinion/macquown-v-dean-witter-reynolds-inc-pactcomplallegh-1987.