July 31, 2019
Last year, we reported on a Pennsylvania Superior Court decision that addressed the possible waiver of the attorney/client and attorney/work product privileges when the work product is shared with an outside consultant. In Bousamra v. Excela Health, 167 A. 3d 728 (Pa. Super. 2017), the Superior Court held that when an email from outside counsel was forwarded to a third party public relations consultant, both the attorney/client privilege and the attorney/work product privilege were waived. That decision was appealed to the Pennsylvania Supreme Court and, in a recently announced decision, the Court has addressed both of those issues. Bousamra v. Excela Health, et al., 5 WAP 2018 (Pa. June 18, 2019). Briefly, in that case, outside counsel, in the context of litigation, sent an email to in-house counsel setting forth his legal interpretations and advice. The in-house counsel subsequently forwarded that email to an outside public relations consultant. Although the consultant was not an environmental consultant, the Court’s holdings are equally applicable to the sharing of legal work product and the seeking of advice from any third party consultant.
The PA Supreme Court first addressed the question of whether sharing the attorney’s email, which was clearly attorney work product, resulted in a waiver of the attorney/work product privilege. The Court opined that, unlike the attorney/client privilege, the mere sharing of the email with a third party did not waive the work product privilege. The Court noted that the work product privilege is designed to keep confidential information away from the adversary. Accordingly, the Court held that the work product privilege is waived only when the work product is shared with an adversary or disclosed in a manner in which there is significant increased likelihood that an adversary or anticipated adversary will obtain the information. The case was remanded to the trial court for further fact-finding in accordance with the Court’s holding.
The Court’s discussion of the attorney/work product privilege would seem to indicate that, with proper safeguards, attorney work product could be shared with outside consultants. As long as the client or attorney mark the attorney’s work product as confidential or otherwise indicate that it is not to be shared, there should be no risk of waiver of that privilege assuming the work product is shared with an adversary or disclosed in a manner in which there is significant increased likelihood that an adversary or anticipated adversary will obtain the information. However, caution is warranted when dealing with large multi office consulting firms. The attorney work product should be shared within the consultant’s working group on a need to know basis and not shared widely throughout the organization. Such wide sharing could be seen as increasing the likelihood of further disclosure.
However, while sharing the attorney’s work product may not waive the work product privilege it could waive the attorney/client privilege. Turning to the question of the waiver of the attorney/client privilege, the Supreme Court upheld the Superior Court’s finding that Excela Health had waived the privilege when the email was forwarded to the public relations consultant. The Court began its analysis by noting the general rule that disclosure of attorney/client communications to a third party automatically results in a waiver of that privilege. However, the Court also recognized that there are exceptions to that rule in cases where the third-party consultant has been hired to assist the attorney in understanding complex matters in order to give better legal advice. Unfortunately, the Supreme Court did not address directly a key question left open by the Superior Court; whether the third party consultant must be retained by the attorney or could also be retained by the client. The Supreme Court’s language suggests that it would recognize the exception in both cases, but it does not explicitly say so.
According to the Supreme Court, the key to determining if there has been a waiver of attorney client privilege is determining whether the third party’s presence is indispensable to or facilitates the lawyer’s ability to give adequate legal advice. If that is the reason for the presence of the third party, then there is no waiver of the attorney/client privilege. Accordingly, engaging an environmental consultant to assist with an expert opinion or to provide technical details and explanations essential for counsel to have in order to give adequate legal advice would not result in a waiver of the privilege. On the other hand, if the environmental consultant is simply present at a meeting or on a phone call while counsel is giving legal advice, and counsel is not relying on the input from the consultant, a waiver could be found.
As we pointed out in our previous article, environmental consultants are often hired for reasons independent of legal issues but may later be called upon to assist counsel. In such circumstances, it may be prudent to amend the consultant’s engagement to reflect that fact. It is also prudent to carefully plan the agenda to be discussed in joint meetings.
Disclaimer: This post does not offer specific legal advice, nor does it create an attorney-client relationship. You should not reach any legal conclusions based on the information contained in this post without first seeking the advice of counsel.
About the Author:
Terry R. Bossert is a Principal in the Firm's Environmental and Energy & Utilities Practice Groups and Co-Chair of the Firm's Shale Resource Practice Group. He counsels clients on environmental regulatory matters and compliance programs, represents them in related litigation brought by environmental regulators, and administrative tribunals and courts. Learn More.