A Pennsylvania Superior Court decision declining to extend attorney-client privilege to media consultants illustrates best practices for how a company should manage communications with outside consultants during a crisis scenario.
Questions regarding privilege and work-product protection play critically important roles in the relationship among client, attorney, and outside consultants—including media consultants. In the latest decision in this area, the Pennsylvania Superior Court recently found that the attorney-client and work-product privileges did not shield from discovery a hospital’s email forwarding the legal advice of its outside counsel to the hospital’s media consultants. The court did not adopt a categorical rule foreclosing privilege or work-product protection, and the decision points out the need for careful planning in the engagement of a media consultant and the manner in which communications take place.
In George BouSamra, M.D., et al., v. Excela Health et al., two former doctors alleged that defendant Excela Westmoreland Hospital defamed them by publicly announcing the results of an internal audit accusing the doctors of performing medically unnecessary heart surgeries. The hospital retained outside counsel to advise it as to the legality of publicly naming the former doctors in the announcement of audit findings, and also hired a media relations firm to consult.
The hospital’s outside counsel drafted a privileged letter to the hospital’s general counsel providing advice about the announcement, which the hospital’s general counsel forwarded to the media relations consultants. The doctors moved to compel production of the advice letter, arguing that the attorney-client and work-product privileges had been waived by disclosure of the letter by in-house counsel. The hospital argued that in Pennsylvania the attorney-client privilege extends to an agent of an attorney who assists in the provision of legal advice to the client, and that the privilege also should be extended to client communications with the client’s outside agents relating to the same legal advice.
The Superior Court disagreed with the hospital because the record demonstrated that the media relations consultants were not retained as agents of counsel to facilitate representation. Upon in camera review of the communications, the Superior Court concluded that the media relations consultants were retained only as agents of the hospital, and that they did not assist in the giving or receiving of legal advice by outside counsel. Specifically, the media consultants performed such tasks as
The media consultants testified that their role was to help evaluate and mitigate the reputational impact from releasing the audit results. The media consultants also testified that they did not speak with the hospital’s outside counsel in connection with their work and had not been asked to provide feedback on the outside counsel’s legal advice.
The appellate court neatly summed up its reasoning, stating that attorney-client privilege did not apply because the hospital “was not asking for input from [the media consultants] into the legal advice proffered by outside counsel; it solicited input for implementing the legal advice already rendered by outside counsel.” The attorney-client privilege was therefore waived by disclosure because the media consultants “did not need to see the email from outside counsel.”
The Superior Court also found the work-product privilege inapplicable because the “essential purpose of the Rule is to keep the files of counsel free from examination by the opponent, insofar as they do not include. . .documents or property which belong to the client. . . .” In this case, the Superior Court found that that purpose would not be served because the doctors sought the email and advice letter directly from the hospital, and the advice letter belonged to the hospital. Critically, the Superior Court explained that “[o]utside counsel would not have waived his privilege in his own work product if he had given it to [the media consultants] to aid outside counsel in preparing this case for trial. That did not occur in this case.”
The Pennsylvania Superior Court’s ruling in Excela is representative of the law nationally and is a powerful demonstration of the importance of carefully considering the purpose and manner of engaging consultants and controlling written communications with third-party consultants during litigation. But it has special resonance for companies who are or may be caught up in a legal crisis scenario like an environmental disaster, major product recall, highly publicized criminal investigation, or senior-management level scandal.
Excela illustrates the underlying wisdom of a few best practices for managing communications risks in such high-stakes situations:
We would be happy to discuss the Excela case with you further, to review with you the case law and rules governing communications with third-party consultants in your jurisdiction, and to talk further about the principles of legal crisis management that we have learned from our experience handling some of the largest and most important legal crisis scenarios in the country—including the critical principles relating to third-party consultant communications.
If you have any questions or would like more information on the issues discussed in this LawFlash, please contact any of the following Morgan Lewis lawyers:
Ella Foley Gannon
 No. 1637 WDA 2015 (PA Sup. Ct. 2017)