A recent decision from the Pennsylvania Superior Court serves as a reminder that lawyers and clients must guard carefully the confidentiality of privileged communications. If client or counsel is cavalier with the privilege, the protection from discovery that privileged communications enjoy can be lost irretrievably. See Bousamra v. Excela Health, No. 1637 WDA 2015, 2017 PA Super. 66, 2017 WL 959488 (Mar. 13, 2017).
Bousamra was a cardiologist with privileges at one of Excela Health’s hospitals. Excela came to suspect that Bousamra was performing medically unnecessary procedures. Excela investigated and then publicly announced its findings, specifically naming Bousamra as a doctor who allegedly performed unnecessary procedures.
Bousamra sued Excela, claiming that the accusations were pretextual and made in retribution and for anti-competitive purposes after Excela attempted unsuccessfully to acquire Bousamra’s practice.
The attorney-client privilege dispute arose because, prior to the public announcement at issue, Excela shared with its outside public relations firm (“PR Firm”) legal advice that Excela had received.
Foster served as Excela’s outside counsel. Foster issued an opinion letter to Excela regarding the propriety of identifying Bousamra in Excela’s public announcement of its findings.
Excela had also hired the PR Firm to provide advice regarding the media implications of Excela’s investigation and findings. Excela’s in-house general counsel forwarded to the PR Firm a copy of Foster’s legal opinion letter.
When Bousamra learned of the existence of Foster’s opinion letter and that it had been shared with the PR Firm, Bousamra moved to compel production of the opinion letter arguing that any privilege had been waived. The trial court agreed, holding that Excela waived the privilege by forwarding Foster’s opinion letter to the PR Firm.
Excela did not contest that it had provided Foster’s letter to the PR Firm. Excela argued instead that doing so did not amount to a waiver of the privilege.
Excela relied on the principle that the privilege is not waived when a lawyer or a client communicates with a non-lawyer third party so long as the purpose of the third party’s involvement is to help the lawyer provide legal advice to the client. For instance, if a lawyer, in order to provide sound legal advice to a client needs to communicate with an outside accountant, the lawyer’s or the client’s communications with the accountant for that purpose should still be privileged and protected from disclosure because such communications are part and parcel of the lawyer’s provision of legal advice to the client.
On appeal, the Superior Court agreed with the principle. The Court, however, held that the principle, while valid, did not provide any refuge for Excela. The Court emphasized that the privilege only applies in those circumstances when the third party’s work is to assist the lawyer in providing legal advice to the client.
The Bousamra Court reviewed the record and found nothing to indicate that the PR Firm’s work was undertaken to assist Excela’s lawyers in providing legal advice. Instead, Foster provided legal advice, and the PR Firm provided public relations advice. The PR Firm’s work did not assist Foster in formulating her legal advice. The PR Firm simply implemented Excela’s decision to publicly identify Bousamra as an alleged malefactor. While that decision was based on and consistent with Foster’s advice, the PR Firm did not assist Foster in the formulation of that advice:
The Court also dismissed out of hand any suggestion that the PR Firm could be treated as a part of Excela’s organization, and thus within the protection of the privilege, because the Court found no factual support in the record for that proposition.
Because the PR Firm was an agent of neither counsel nor client in connection with the client’s request for and receipt of legal advice, the PR Firm was not within the umbrella of the privilege. Therefore, Excela’s disclosure to the PR Firm of what was initially a privileged document – Foster’s opinion letter – constituted a waiver of the privilege and rendered the document discoverable.
In light of Bousamra, the critical question for lawyers is: Can I share this confidential communication with a person or entity who is not my client without waiving the privilege? The answer to that question frequently enough is “No, I cannot,” such that significant caution must be exercised in all such instances. Lawyers must likewise educate, counsel, and remind clients not to disseminate privileged communications to third parties, or risk the result that befell the client in Bousamra.
* Kevin P. Allen is a partner in the litigation division of Eckert Seamans Cherin & Mellott, LLC. He is also the author of The Attorney-Client Privilege and Work-Product Doctrine in Pennsylvania (PBI Press 2016), now in its fifth edition.