A fundamental understanding among both lawyers and clients is that communication between the two--especially when it reveals legal strategy--is privileged information. But a case unfolding in Pennsylvania is a reminder for in-house counsel that this isn't always so.
The privilege question arose in Nationwide Mutual Insurance Co. v. Fleming, in which Nationwide and its subsidiaries accused former Nationwide agents of providing confidential policyholder information to the insurance company's competitors.
Tom Wilkinson, a member of Cozen O'Connor and counsel for the Pennsylvania Bar Association, joined the Association of Corporate Counsel and the U.S. Chamber of Commerce in signing an amicus brief in support of Nationwide. "[We said] a client should have confidence that confidential legal advice imparted by a lawyer will be
presumptively privileged ... and there's no good reason for the privilege to be a
one-way street," he says.
David Alden, a partner in Jones Day's Cleveland office, calls the statute "cryptic" and "troubling" and believes it's somewhat outdated. "[It] doesn't include all kinds of things that, if you were really thinking about it today in light of where the law is, you would include," he says.