As a follow up to Five Common Attorney-Client Privilege Blunders, below is a refresher on maintaining attorney-client privilege and attorney work product, and steps districts should take to ensure they do not waive these important protections when receiving legal advice.

The Supreme Court of Pennsylvania recently reviewed waiver of both attorney-client privilege and attorney work product in BouSamra v. Excela Health, 210 A.3d 967 (Pa. 2019).  The majority in that case explained:

1) Attorney-client privilege is waived when a confidential communication is shared with a third party.  In BouSamra, general counsel waived attorney-client privilege by sending a communication from outside counsel to a PR firm.  The recipient at the PR firm was not looped in to assist outside counsel or general counsel in providing legal advice and no advice or input was solicited of the recipient.  By forwarding the correspondence from counsel to a third party, the client waived the attorney-client privilege. (Id. at 984–85.)

2) Attorney work product is waived when the work product is shared with an adversary, or disclosed in a manner which significantly increases the likelihood that an adversary or anticipated adversary will obtain it.  The Court remanded to the lower court for a fact-intensive analysis, such as whether the disclosure was inconsistent with the maintenance of secrecy from an adversary, and whether a reasonable basis existed for the disclosing party to believe the recipient would keep the disclosed material confidential. (Id. at 978.)

It is of paramount importance that opinions of legal counsel regarding districts’ reopening plans not be shared or disseminated in a way that could potentially make them discoverable.  At a minimum, districts should avoid disclosing attorney opinions to third parties, forwarding the advice of counsel to additional recipients and publicly discussing the opinions of counsel or documents discussing the opinions of counsel.