Yes.  In the civil context, the statute provides as follows: “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. § 5928.  

In the criminal context, the statute is identical, except it begins with “[i]n a criminal proceeding…” 42 Pa. C.S. § 5916.

The criteria for the application of the attorney-client privilege in Pennsylvania, in both the civil and criminal context, is as follows: (1) a communication (2) made between a client and an attorney (3) in confidence (4) for the purposes of obtaining or providing legal assistance for the client.  Pallares v. Kohn (In re Chevron Corp.), 650 F.3d 276, 289 (3d Cir. 2011) (citing In re Teleglobe Commc’ns Corp., 493 F.3d 345, 359 (3d Cir. 2007) (quoting RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS § 68 (2000)). See also Bousamra v. Excela Health, 210 A.3d 967, 983 (Pa. 2019).

N/A

There is no distinction in applying the ACP or professional confidentiality rules (R. 1.6, Pa. R. Prof’l Conduct) in civil and criminal proceedings.  While the ACP provisions appear in different sections of the Code, the language is identical.  

The same rules apply to the government in both civil and criminal proceedings. 

The general rule under Pennsylvania law is that when the client is a corporation, the privilege extends to communications between its attorney and agents or employees “authorized to act on the corporation’s behalf.” BouSamra v. Excela Health, 210 A.3d 967, 983 (Pa. 2019). 

Pennsylvania courts previously had followed the control group test, which provides that attorney-client privilege protection extends only to employees who exercise direct control over the managerial decisions of the company (i.e., corporate officers and directors).  See Maleski v. Corporate Life Ins. Co., 641 A.2d 1, 3 (Pa. Cmwlth. 1994).  

However, more recent Pennsylvania cases have employed the Upjohn approach.  These courts rely on the Supreme Court decision, Upjohn Company v. United States, 449 U.S. 383 (1981), which criticized the “control group test” and extended the attorney-client privilege protection to non-management employees when the privilege was necessary to defend against litigation.  Pennsylvania courts have held that the protection extends farther down the corporate ladder, to employees below corporate officers and directors.  Gould v. City of Aliquippa, 750 A.2d 934, 937 (Pa. Cmwlth. 2000) (holding protection applied to employees who were not members of city’s governing board but who had authority to act on city’s behalf and had titles suggesting positions of authority); National Railroad Passenger Corp. v. Fowler, 788 A.2d 1053 (Pa. Cmwlth. 2001) (holding privilege applied to low-level employees who were authorized to act); see also SmithKline Beecham Corp. v. Apotex Corp., 232 F.R.D. 467, 478 (E.D. Pa. 2005).  

No, in-house counsel is not expected to meet a higher burden.  

Pennsylvania courts will only protect communications made for the purpose of obtaining legal advice.  Maleski by Chronister v. Corporate Life Ins. Co., 641 A.2d 1 (Pa. Cmwlth. 1994); Faloney v. Wachovia Bank, N.A., 254 F.R.D. 204, 209 (E.D. Pa. 2008) (“Communications by in-house counsel are privileged only where the communication’s primary purpose is to gain or provide legal assistance.”).  Pennsylvania courts will not protect purely business communications.  Faloney, 254 F.R.D. at 204. 

N/A

N/A

Yes.  Under Pennsylvania law, the common-interest doctrine – an exception to the rule that privilege is waived upon disclosure of privileged information to a third party – is available.  See Andritz Sprout-Bauer v. Beazer E., 174 F.R.D. 609, 634 (M.D. Pa. 1997).  

The common-interest doctrine “protects communications between an individual and an attorney who represents someone else, if they form part of an on-going and joint effort to set up a common defense strategy.”  Andritz, 174 F.R.D. at 634 (internal quotations omitted); accord, Pallares v. Kohn (In re Chevron Corp.), 650 F.3d 276, 290, n.19 (3d Cir. 2011).  The party asserting the applicability of the common-interest doctrine must demonstrate that (i) the communications were made in the course of a joint defense effort, (ii) the statements were designed to further the effort, and (iii) the privilege has not been waived.  Andritz, 174 F.R.D. at 634.  Further, the common-interest privilege applies even if the participants have some adverse interests.  United States v. Moscony, 927 F.2d. 742, 753 (3d Cir. 1991). 

No, a writing is not required in order to claim the common interest doctrine.  Exec. Risk Indem., Inc. v. Cigna Corp., 81 Pa. D. & C. 4th 410, 423 (Phila. Co. 2006).

There are limited Pennsylvania cases dealing with litigation funding.  

However, Pennsylvania recognizes the doctrine of champerty.  Champerty may be asserted as a defense against the enforcement of a contract when three elements are established: (1) the party involved must be one who has no legitimate interest in the suit; (2) the party must expend its own money in prosecuting the suit; and (3) the party must be entitled by the bargain to share in the proceeds of the suit.”  Fleetwood Area Sch. Dist. v. Berks Cnty. Bd. of Assessment, 821 A.2d 1268, 1273 (Pa. Comwlth. 2003).  

A Pennsylvania appellate court recently invalidated a litigation funding agreement on the ground that the agreement violated Pennsylvania’s prohibition against champerty. WFIC, LLC v. LaBarre, 148 A.3d 812, 819 (Pa. Super. Ct. 2016). The court found that all three elements of champerty were met in that case.

However, the previous year a Pennsylvania federal court decision upheld a litigation finance transaction against a champerty challenge. Obermayer Rebmann Maxwell & Hippel LLP v. West, Civil Action No. 15-81, 2015 U.S. Dist. LEXIS 172922 (W.D. Pa. Dec. 30, 2015). The defendant argued that the agreement was champertous under Pennsylvania law, but the court enforced the contract’s New York choice of law provision, and then held that the contract was not champertous under New York law. Obermayer, 2015 WL 9489791, at *7-8.

There are no specific professional rules with respect to litigation funding.  There is a general rule that prohibits a lawyer from sharing fees with a non-lawyer and also prohibits someone who employs or pays the lawyer from directing or regulating the lawyer’s professional judgment in rendering legal services.  R. 5.4(a), (c), Pa. R. Prof’l Conduct.
 

There are limited cases addressing whether communications with litigation funders may be protected by the ACP or the work product protection.  

However, two federal courts in Pennsylvania have denied discovery requests into funding documents and communications with funders. Lambeth Magnetic Structures, LLC v. Seagate Tech. (US) Holdings, Inc., Civil Action No. 16-538, 2017 U.S. Dist. LEXIS 215773, *15-16 (W.D. Pa. Dec. 19, 2017) (denying discovery based on the work product doctrine); Devon IT, Inc. v. IBM Corp., No. 10-2899, 2012 U.S. Dist. LEXIS 166749, n.1 (E.D. Pa. Sep. 27, 2012) (denying discovery based on both the work product doctrine and the attorney-client privilege).
 

Yes, the crime-fraud exception to the attorney-client privilege is recognized in Pennsylvania.  In re Investigating Grand Jury No. 88-00-3505, 593 A.2d 402, 407 (Pa. 1991); In re Grand Jury Subpoena, 745 F.3d 681 (3d Cir. 2014) (FCPA); In re Grand Jury, 705 F.3d 133 (3d Cir. 2012) (ABC Corp).  

A party challenging the privilege or the basis of the crime-fraud exception must demonstrate that (i) the client was committing or intending to commit a fraud or crime; and (ii) the attorney-client communications were in furtherance of that alleged crime or fraud.  In re Grand Jury Subpoena, 745 F.3d at 687.

There are no Pennsylvania statutes governing the crime-fraud exception.  The key court decisions are cited above. 

Yes, Pennsylvania Rule of Civil Procedure 4003.3, which is analogous to, but broader than, Federal Rule of Civil Procedure 26(b)(3). The Pennsylvania Rule differs in two ways.  First, it does not require attorney work product to have been “prepared in anticipation of litigation” in order to be protected.  Second, it protects non-attorney work product.  

Rule 4003.3 provides “[a] party may obtain discovery of any matter discoverable…even though prepared in anticipation of litigation or trial by or for another party or by or for that other party’s representative, including his or her attorney, consultant, surety, indemnitor, insurer or agent.  The discovery shall not include disclosure of the mental impressions of a party’s attorney or his or her conclusions, opinions, memoranda, notes or summaries, legal research or legal theories. With respect to the representative of a party other than the party’s attorney, discovery shall not include disclosure of his or her mental impressions, conclusions or opinions respecting the value or merit of a claim or defense or respecting strategy or tactics.”  

Rule 4003.3 protects two different categories of work product: (i) attorney work product and (ii) non-attorney work product.  

With respect to attorney work product, mental impressions, conclusions, opinions, memoranda, notes, summaries, legal research and legal theories are protected.  As stated above, such information does not need to be generated “for purposes of, or in anticipation of, litigation” like the Federal Rule.  See Sedat, Inc. v. Department of Envtl. Resources, 641 A.2d 1243, 1245 (Pa. Cmwlth. 1994) (“anticipation of litigation is not a prerequisite to the application of the work product doctrine as it pertains to the work product of attorneys acting in their professional capacity.”). 

With respect to non-attorney work product, this covers work performed by a client’s consultant, surety, indemnitor, insurer or agent.  The rule covers mental impressions, conclusions or opinions respecting the value or merit of a claim or defense or respecting strategy or tactics.

Yes, Pennsylvania recognizes an accountant-client privilege by statute.  63 P.S. § 9.11a.  The statute provides that “the information derived from or as the result of [accountant] professional services shall be deemed confidential and privileged.”  Id.  However, the accountant-client privilege is not absolute like the attorney-client privilege.  See Orix USA Corp. v. DVI Inc., Civil Action No. GD96-5919, 1997 Pa. Dist. & Cnty. Dec. LEXIS 60 (Pa. C.P. 1997).  The statute excepts from the privilege the disclosure of information (i) within the peer review process, (ii) required to be disclosed by the standards of the profession in reporting on the examination of financial statements, and (iii) in court or other proceedings when the professional services of the accountant are at issue and the accountant is a party.  Nat’l First Mortg. Corp. of Pa. v. Econ. Sav. Bank Pasa, 58 Pa. D. & C.4th 271, 276 (Beaver Co. 2002).

Yes, Pennsylvania recognizes a mediation privilege by statute, which provides that “all mediation communications and mediation documents are privileged.”  42 Pa. C.S. § 5949.  The privilege is subject to certain exceptions.  First, a settlement document may be introduced in an action or proceeding to enforce the settlement agreement expressed in the document, unless the settlement document by its terms states that it is unenforceable or not intended to be legally binding.  Second, to the extent that the communication or conduct is relevant evidence in a criminal matter, the privilege does not apply to: (i) a communication of a threat that bodily injury may be inflicted on a person; (ii) a communication of a threat that damage may be inflicted on real or personal property under circumstances constituting a felony; or (iii) conduct during a mediation session causing direct bodily injury to a person.  Third, the privilege does not apply to a fraudulent communication during mediation that is relevant evidence in an action to enforce or set aside a mediation agreement reached as a result of that fraudulent communication.  Fourth, any document which otherwise exists, or existed independent of the mediation and is not otherwise covered by Section 5949, is not subject to this privilege.  Id.

Yes, the Pennsylvania Rules of Evidence provide that settlement negotiations are not admissible either to prove or disprove the validity or amount of a disputed claim or to impeach by a prior inconsistent statement or contradiction.  Pa. R.E. 408.  However, settlement negotiations are admissible for other purposes, such as to prove a witness’s bias or prejudice, to negate a contention of undue delay, or to prove an effort to obstruct a criminal investigation or prosecution.  Id.