Ruling: clients of Senate-paid lawyers can be ID'd

By MARK SCOLFORO, Associated Press April 24, 2013
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HARRISBURG, Pa. (AP) — The names of people whose lawyers are funded by the state Senate can be made public without violating attorney-client confidentiality, the Pennsylvania Supreme Court ruled Wednesday, although under some circumstances their identities should remain secret.

The justices unanimously upheld a lower court decision in a case that arose after a reporter for The Associated Press sought legal records related to former Senate Democratic Leader Bob Mellow and the Democratic caucus.

The high court said client names and general descriptions of legal services are not generally protected by attorney-client privilege, but there are instances where they can be. They said a line-by-line analysis — as was performed by Commonwealth Court — is required to determine whether making them public would violate attorney-client privilege.

"While a client's identity is generally not privileged, the attorney-client privilege may apply in cases where divulging the client's identity would disclose either the legal advice given or the confidential communications provided," wrote Justice Max Baer.

For example, Baer wrote, descriptions of legal services that say why the client needs a lawyer or disclose advice and strategy could be protected from public release.

"In contrast, an entry that generically states that counsel made a telephone call for a specific amount of time to the client is not information protected by the attorney-client privilege but, instead, is subject to disclosure under the specific provisions of the Right-to-Know Law," Baer said.

The Right-to-Know Law, Pennsylvania's main law governing access to government records and information, allows the government to withhold documents that are protected by any privilege, including lawyer-client privilege.

The AP sought "bills, contracts and payment records" in 2010 for lawyers hired for Mellow over the prior year and a half, and similar documents for any current or former Senate Democratic caucus employees over the same time period. Selected portions of the documents that he received in response had been blacked out.

The decision was a sound one, said Drew Crompton, an aide to Senate President Pro Tempore Joe Scarnati, the chamber's presiding officer.

"Taken as a whole, we think the court did get it right, and in certain circumstances, limited as it may be, a person's identity may be withheld under the attorney-client privilege," Crompton said. "And I think that's the right call."

The AP's request was made shortly after federal agents searched Mellow's home in northeastern Pennsylvania.

Mellow was subsequently charged and pleaded guilty to conspiracy to commit mail fraud. Prosecutors said his staff worked on state time on political campaigns in 2006. He is currently serving a 16-month term at a federal prison camp in Salters, S.C.

The new Supreme Court ruling sided with the Senate in saying that the institution could raise additional reasons to deny access, even after it has issued its initial written response. The case was returned to a lower court, presumably Commonwealth Court, for it to take up the other justifications by the Senate that had been ruled out of bounds and so were not fully considered.

Parenthetically, Baer noted that Republicans and Democrats in the state House filed friend-of-the-court briefs in which they predicted invoices for legal services could become less specific if they were subject to public scrutiny.

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