Schnader Harrison Segal & Lewis LLP
Schnader
attorneys at law
Schnader Harrison Segal & Lewis LLP
Schnader
attorneys at law
Schnader Harrison Segal & Lewis LLP
Schnader
attorneys at law
New York
PeNNsYlvaNia
CaliforNia
washiNgtoN, D.C.
New JerseY
DelawareNew York
PeNNsYlvaNia
CaliforNia
washiNgtoN, D.C.
New JerseY
DelawareNew York
PeNNsYlvaNia
CaliforNia
washiNgtoN, D.C.
New JerseY
Delaware
February
2012
(continued on page 2)(continued on page 2)(continued on page 2)
Pennsylvania Supreme Court Issues Two
Important Decisions on Attorney-Client
Privilege and Attorney’s Fees
By Chris W. Haaf and Carl A. Solano
At the end of 2011, the Pennsylvania Supreme Court is-
sued two decisions of signicant importance to practitio-
ners 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 ap-
plies 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 dam-
ages is separate from the merits portion of the case for
purposes of determining whether a judgment is nal 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 defen-
dant sought to appeal an order that it produce documents it
claimed were protected by the attorney-client privilege, ar-
guing that the privilege decision was immediately appeal-
able as a collateral order. The U.S. Supreme Court afrmed
the court of appeals’ dismissal of the appeal, holding that
“collateral order appeals are not necessary to ensure ef-
fective 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 nal
judgment and seek a remand for a new trial provides “suf-
cient relief” from an order improperly requiring disclosure
of privileged material. The Court said there were alternate
ways to seek appellate relief, including an interlocutory ap-
peal 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 rst-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 cir-
cumstance. The Commonwealth subpoenaed the psycholo-
gist 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 testi-
mony, causing Harris to appeal.
In its opinion, the Pennsylvania Supreme Court rejected
the notion that the availability of appeal after nal judg-
ment sufciently addresses the potential “chilling effect”
of an adverse privilege decision, stating: “Once putatively
privileged material is in the open, the bell has been rung,
and cannot be unrung by a later appeal.” The Court found
the U.S. Supreme Court’s additional efforts to minimize
the impact of its ruling to be unavailing. Under Pennsylva-
nia law, some claims of privilege might not qualify for in-
terlocutory appeal by permission; a petition for mandamus
is not readily available in Pennsylvania; and the option of
disobeying a discovery order and facing sanctions is “so
extreme as to be no option at all.” In sum, the Court held
that orders requiring disclosure of putatively privileged
materials are immediately appealable under the collateral
order doctrine. Although Harris dealt with the psychol-
ogist-patient privilege, its reasoning applies to all other
types of privileges, including attorney-client.
In Samuel-Bassett, the Court held that even if an award of
attorney’s fees is part of recoverable damages, the award
is still an “ancillary” part of the case that is to be treated
separately from the rest for purposes of determining when
there is a nal appealable judgment. The Court in Samu-
el-Bassett considered a number of issues arising out of a
consumer class action against Kia Motors under the Mag-
nuson-Moss Warranty Improvement Act. A jury had found
in favor of the class and awarded damages. Among the
appel lat e
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