Pennsylvania Supreme Court Issues Two Important Decisions An Attorney-Client Privilege And Attorney's Fees

At the end of 2011, the Pennsylvania Supreme Court issued two decisions of significant importance to practitioners across the Commonwealth. First, in Commonwealth v. Harris, 32 A.3d 243 (Pa. 2011), the Court departed from federal law in holding that the collateral order doctrine applies to privilege decisions. Second, in Samuel-Bassett v. Kia Motors America, Inc., 34 A.3d 1 (Pa. 2011), the Court held that a post-judgment award of attorney's fees as damages is separate from the merits portion of the case for purposes of determining whether a judgment is final and appealable.

In Harris, the Court expressly rejected the federal approach to determining the appealability of privilege decisions that was set forth in Mohawk Industries, Inc. v. Carpenter, 558 U.S. ___, 130 S. Ct. 599 (2009). In Mohawk, the defendant sought to appeal an order that it produce documents it claimed were protected by the attorney-client privilege, arguing that the privilege decision was immediately appealable as a collateral order. The U.S. Supreme Court affirmed the court of appeals' dismissal of the appeal, holding that "collateral order appeals are not necessary to ensure effective review of orders adverse to the attorney-client privilege." The Supreme Court rejected concerns that its decision would have a "chilling effect" on attorney-client privilege, explaining that the opportunity to appeal the final judgment and seek a remand for a new trial provides "sufficient relief" from an order improperly requiring disclosure of privileged material. The Court said there were alternate ways to seek appellate relief, including an interlocutory appeal by permission and a writ of mandamus, as well as the "option" to defy the disclosure order.

The Pennsylvania Supreme Court disagreed. Francis Bauer Harris had been found guilty of first-degree murder and sentenced to death. In a petition for post-conviction relief, Harris alleged that his trial counsel was ineffective for presenting testimony of a psychologist during the penalty phase of his trial who had not completed the testing that would have been required to establish a mitigating circumstance. The Commonwealth subpoenaed the psychologist to testify at a hearing and asked Harris to waive the psychologist-client privilege with respect to that testimony. Although Harris refused, the trial court allowed the testimony,causing Harris to appeal.

In its opinion, the Pennsylvania Supreme Court rejected the notion that the...