Case Details


State Agency Communications Not Protected By Attorney-Client Privilege From Disclosure To Attorney General In Criminal Investigation

Filing State



Pennsylvania Supreme Court




2014 Pa. Lexis 426 (Pa. Feb. 18, 2014)


In connection with a grand jury convened by the AG for a criminal investigation of the procurement practices of the state’s Turnpike Authority, the Authority,an independent agency with its own counsel, declined to produce some of the documents on the grounds that they were protected by attorney-client and work-product privilege. The district court judge found that the attorney-client privilege did not apply and ordered production of the documents. On appeal, the attorney general argued that application of the privilege to state agencies would harm the public interest because “government lawyers have additional obligations that set them apart from privately retained counsel, including the duty to act in the public interest and rectify wrongful official acts where necessary.” Because a state agency’s counsel is paid with public funds, it would be “unseemly to use those funds to permit a public official to conceal from the taxpayers otherwise relevant evidence of wrongdoing.” The attorney general also argued that the state itself, rather than the agency, is the “client” in this context. The Pennsylvania Supreme Court held there was no attorney-client or work product protection for documents sought by the attorney general from a state agency during a criminal investigation. In this case, according to the court, “the “client” is not simply the agency or the individual employees of the agency, or the public officials themselves, but rather the public, whose money funds their operations, and whom all of these individuals serve.” The supreme court therefore held, “To hold that the Commission itself is the client entitled to claim the privilege in the face of a duly-authorized grand jury investigation by the Commonwealth government is tantamount to concluding that the Commission is independent of the Commonwealth government, is beholden only to itself and, although the Commission is ultimately funded by the public through a variety of means established by the General Assembly, the Commission need not account for its expenditures and operations to the Commonwealth’s citizens, who are represented, in this instance, by the OAG. In our view, this position obviously cannot prevail.”

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