Pa. High Court Will Weigh Turnpike Panel's Privilege Claim
Law360, New York
July 19, 2012
The Pennsylvania Supreme Court has agreed to hear oral arguments over whether the state's Turnpike Commission is entitled to attorney-client privilege claims as it faces a grand jury investigation by the Pennsylvania Attorney General's Office.
The state Supreme Court made its decision July 9. The investigation, the exact nature and target of which has not been publicly revealed, is related to the potential criminal use of commission resources to conduct political activities, according to recently unsealed court documents.
The OAG, which first began its probe in 2009, has sought broad access to employee email servers, including messages between commission workers and both in-house and outside counsel, court documents said.
While the OAG has maintained that the commission is just another arm of the broader state government to which the OAG also belongs, the commission believes that state statute entitles all parties to attorney-client privilege regardless of their governmental status.
“The OAG is attempting to usher in a new era of 'privilege' in this commonwealth … [in which] no government agency can invoke privilege when being investigated by a grand jury,” the commission said in a petition to the state Supreme Court in May. “In the words of the OAG, it is entitled to 'unfettered' access to every record of an agency, including unbounded access to all emails existing on an agency server.”
The commission pointed to state statute codifying attorney-client privilege, arguing that the code made no distinction between government and private attorneys or between government and private communications.
Judge Barry Feudale of Dauphin County, who is overseeing the grand jury investigation, shot down the commission's motion for an order protecting their attorney-client privilege in April, conceding the OAG's argument that the state's Commonwealth Attorneys Act allowed the office “the right to access at all times the books and papers of any commonwealth agency necessary to carry out its duties.”
The commission, however, says that as an independent agency that is entitled to its own in-house legal counsel under the Commonwealth Attorneys Act, it should not be counted broadly as a “commonwealth agency” under the act.
Judge Feudale also pointed to an Eighth Circuit decision in which the court rejected attorney-client privilege claims asserted by the White House as it resisted the investigation into the Whitewater real estate development scandal under President Bill Clinton.
Matthew Haverstick of Conrad O'Brien, an attorney for the commission, said he was pleased with the state Supreme Court's decision.
“We're looking forward to the Supreme Court's attention to this very important issue,” he said.
Oral arguments in the case have not yet been scheduled.
Representatives for the OAG were not immediately available for comment Thursday.
The case is In re: 33rd Statewide Investigating Grand Jury, case number 85 MM 2012, in the Supreme Court of Pennsylvania.
--Editing by Andrew Park.