Pennsylvania's highest court has ruled that government agencies can't assert lawyer-client privilege to protect records when the state attorney general's office needs them to fulfill its duties.
The Supreme Court ruled Tuesday in a case that arose out of a grand jury investigation of the Pennsylvania Turnpike Commission.
The turnpike commission's lawyers had argued that government officials ought to feel free to obtain legal advice under the attorney-client privilege, but the justices ruled that when the attorney general's office looks into suspected wrongdoing at a state agency, the actual client of the agency's lawyers is the public.
"It follows that the only proper manner of considering the privilege in these circumstances is that the client-citizenry has impliedly waived the attorney-client privilege that might otherwise shield from revelation evidence of corruption and criminal activity," wrote Chief Justice Ronald Castille.
A filing last year by the turnpike commission said it had produced more than 155,000 pages for an investigation of the agency that went back several years.
Six people are awaiting trial this summer after being charged nearly a year ago with alleged bid rigging and influence peddling that involved large turnpike contracts. The defendants include former state Sen. Bob Mellow, former turnpike executives Mitch Rubin, Joe Brimmeier and George Hatalowich and two people who worked for vendors.
A concurring opinion by Justice Max Baer, joined by one other, said he wanted to "emphasize, in my view, the limited nature of the majority's holding, and to caution state agencies and their officials to be cognizant of when the attorney-client privilege may be encroached."
He said discussions between state officials and government-paid lawyers may have to be produced if the agency becomes the subject of a grand jury investigation by the attorney general, and if those officials think they broke a law they should confer with a private attorney.
"Thus, the majority's holding respects the sanctity of the attorney-client privilege where appropriate, while ensuring that state agencies and their officials cannot shroud criminal conduct from the citizens they are obligated to serve," Baer wrote.
The Pennsylvania Bar Association and the Philadelphia Bar Association both submitted briefs in support of the turnpike's position, saying it is in the public's interest to have high-ranking government officials seek and act upon advice from lawyers.
The attorney general's office told the court that government lawyers have special duties to act in the public interest and address wrongful official acts.