August 01, 2019

MONTH-IN-BRIEF: Legal Opinions & Ethics

Keith Fisher, Christina Houston

Professional Responsibility

Crisis Management and Work Product/Attorney-Client Protection

By Keith R. Fisher

In BouSamra v. Excela Health, the Supreme Court of Pennsylvania held that a hospital that shared emails from its outside counsel with a public relations consultant may not have waived the work product privilege (WPP) but did waive the attorney-client privilege (ACP). The hospital forwarded emails from its outside counsel, including mental impressions, conclusions, and opinions to an outside public relations and crisis management firm, with which it had contracted after a peer review concluded that a staff physician was performing medically unnecessary procedures. The consulting firm shared these messages internally. In a defamation suit, the doctor sought discovery of all of the emails. The lower courts held that ACP was waived because the consultant was not an agent of the hospital and would not assist counsel in giving legal advice and found WPP inapplicable because the doctor sought discovery directly from the client, not its attorney; furthermore, the emails were not sent to the consultant to help outside counsel prepare for litigation.

The PA Supreme Court agreed that ACP had been waived but reversed on WPP. Concluding that confidentiality is not axiomatic to the work product doctrine and its purpose is not always undermined by disclosure to a third party, the Court articulated a “newly articulated work product waiver analysis”:  WPP “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 case was remanded for consideration “whether a reasonable basis exists for the disclosing party to believe that the recipient would keep the disclosed material confidential.”

Keith Fisher

Principal Consultant and Senior Counsel, National Center for State Courts

An honors graduate of Princeton University and Georgetown University Law Center, Keith Fisher joined the National Center for State Courts in 2015 as Principal Consultant and Senior Counsel for Domestic and International Court Initiatives.  He is an experienced lawyer and law professor and is a nationally known expert on domestic and international financial services regulation and legal and judicial ethics.  Recent speaking engagements on domestic and international  ethics issues include the Center for Judicial Ethics National Judicial College, the International Conference on Court Excellence in Singapore, the Professional Responsibility Training Session for Immigration Judges, an American-Hellenic Chamber of Commerce Symposium on Improving the Greek Court System, the Magistrature de Quebec’s Colloque soulignant les 40 ans du Conseil de la magistrature, the U.N.’s Global Judicial Integrity Network conference on social media in Vienna, and the Konrad Adenauer Stiftung’s conference on judicial ethics and social media..  He also serves on the Board of Editors for UNESCO publications on judicial bioethics.

Christina Houston

Counsel, DLA Piper

Christina’s practice focuses on legal opinions, LLCs, partnerships, trusts and corporations and general commercial transactions. Christina is a member of the Partnership and Limited Liability Company Committee of the Corporation Law Section of the Delaware State Bar Association, which is responsible for annually reviewing and updating Delaware’s partnership and LLC statutes. Christina also is actively involved in the Legal Opinions Committee of the American Bar Association Business Law Section, the Committee on LLCs, Partnerships and Unincorporated Business Associations and the Business Law Basics Committee of the Business Law Section of the American Bar Association. She is the current Chair of the Opinion Issues in LLCs Subcommittee. Christina is a member of the TriBar Opinion Committee.