City of Pittsburgh v. Silver

• Decision Date: 16 August 2012
• Parties: CITY OF PITTSBURGH, Appellant v. Jonathan D. SILVER and The Pittsburgh Post–Gazette.
• Court: Pennsylvania Commonwealth Court

50 A.3d 296

CITY OF PITTSBURGH, Appellant

v.Jonathan D. SILVER and The Pittsburgh Post–Gazette.

Commonwealth Court of Pennsylvania.

Argued April 18, 2012.

Decided Aug. 16, 2012.

Wendy Kobee, Pittsburgh, for appellant.

Holly S. Planinsic, Wheeling, WV, and Fritz Byers, Toledo, OH, for appellees.

BEFORE: PELLEGRINI, President Judge, and McGINLEY, Judge, and LEADBETTER, Judge, and SIMPSON, Judge, and LEAVITT, Judge, and BROBSON, Judge, and COVEY, Judge.

OPINION BY President Judge PELLEGRINI.¹

The City of Pittsburgh (City) appeals the order of the Court of Common Pleas of Allegheny County (trial court) affirming the Final Determination of the Office of Open Records (OOR) and denying the City's motion for a protective order. The OOR's Final Determination ordered the City to comply with the request made by the Pittsburgh Post–Gazette and one of its reporters, Jonathan Silver (collectively, Silver) to disclose documents under the Right–to–Know Law (RTKL).² We reverse.

On October 1, 2010, Silver submitted a request under the RTKL seeking copies of all correspondence contained in the file of an assistant city solicitor between attorneys for the estate of Curtis Mitchell and city officials regarding efforts to negotiate a settlement of pending litigation over Mitchell's death.³ The City denied the request on the basis that the documents were not public records, asserting that they were protected by the attorney work-product doctrine, the attorney-client privilege, and Federal and Pennsylvania Rules of Evidence 408.⁴

Silver appealed to the OOR ⁵ which issued a Final Determination on January 21, 2011, sustaining the appeal and directing the City to disclose the documents. The City appealed the Final Determination to the trial court ⁶ and filed a motion for a protective order. ⁷ The trial court held an in camera review, revealing ten letters and one fax between the attorney for the Mitchell family and the City's solicitor and associate solicitor. The trial court made findings of fact and conclusions of law, and determined that none of the foregoing correspondence was subject to the asserted privileges. As a result, on August 1, 2011, the trial court issued the instant order affirming the OOR's Final Determination, directing the City to produce the requested records within 30 days, and denying the City's motion for a protective order. The City then filed this appeal.⁸

In this appeal, the City claims that the trial court erred in a number of respects in affirming the OOR's Final Determination and denying its motion for a protective order. However, we are constrained to reverse the trial court's order because the OOR was without jurisdiction under the RTKL to compel the disclosure of the documents in the associate solicitor's file relating to the pending litigation.⁹

Article V, Section 10(c) of the Pennsylvania Constitution states that “[t]he Supreme Court shall have the power to prescribe general rules ... for admission to the bar and to practice law.” PA. CONST. art. V, § 10(c). Thus, the Supreme Court is empowered by the Pennsylvania Constitution to exclusively govern the conduct of attorneys practicing law in this Commonwealth. Beyers v. Richmond, 594 Pa. 654, 665, 937 A.2d 1082, 1089 (2007); Commonwealth v. Stern, 549 Pa. 505, 510, 701 A.2d 568, 570 (1997). The Supreme Court's exclusive authority in this area is founded on the separation of powers between the branches of our Commonwealth's government. Beyers, 594 Pa. at 666–67, 937 A.2d at 1090–91.¹⁰ “[I]t is well settled that the power to regulate and define what constitutes the ‘practice of law’ is vested in the judiciary, and not in the executive or legislative branches of government.” Gmerek v. State Ethics Commission, 751 A.2d 1241, 1254 (Pa.Cmwlth.2000), aff'd per curiam,569 Pa. 579, 807 A.2d 812 (2002) (citation omitted). “Pursuant to [its] constitutional authority, [our Supreme] Court adopted the Rules of Professional Conduct and the Rules of Disciplinary Enforcement, which govern the conduct and discipline of attorneys.” Stern, 549 Pa. at 510, 701 A.2d at 571.SeePa. R.D.E. 103 (“The Supreme Court declares that it has inherent and exclusive power to supervise the conduct of attorneys who are its officers (which power is reasserted in Section 10(c) of Article V of the Constitution of Pennsylvania) and in furtherance thereof promulgates these rules....”).

Our Supreme Court's sole jurisdiction over the practice of law includes the conduct of litigation, which necessarily includes lawyers' efforts to settle litigation. See Laudenberger v. Port Authority of Allegheny County, 496 Pa. 52, 436 A.2d 147 (1981), appeal dismissed sub nom. Bucheit v. Laudenberger, 456 U.S. 940, 102 S.Ct. 2002, 72 L.Ed.2d 462 (1982). Allowing anyone to make ongoing requests under the RTKL concerning all correspondence regarding settlement impermissibly intrudes into the conduct of litigation because it would lessen the frank exchange of information between the parties thereby adversely affecting the ability for litigation to settle.¹¹ Moreover, the conduct of litigation could be affected because other parties to the litigation could constantly seek information about settlement discussions to discern the other parties' belief as to the strength or weakness of their case. Allowing an administrative agency to order the release of documents would interfere with the courts' sole control over the conduct of litigation.

Moreover, Pa. R.P.C. 1.6(a) states that “[a] lawyer shall not reveal information relating to representation of a client unless the client gives informed consent, except for disclosures that are impliedly authorized in order to carry out the representation....” As explained:

The principle of client-lawyer confidentiality is given effect by related bodies of law: the attorney-client privilege, the work product doctrine and the rule of confidentiality established in professional ethics. The attorney-client privilege and work-product doctrine apply in judicial and other proceedings in which a lawyer may be called as a witness or otherwise required to produce evidence concerning a client. The rule of client-lawyer confidentiality applies in situations other than those where evidence is sought from the lawyer through compulsion of law. The confidentiality rule, for example, applies not only to matters communicated in confidence by the client but also to all information relating to the representation, whatever its source. A lawyer may not disclose such information except as authorized or required by the Rules of Professional Conduct or other law....Pa. R.P.C. 1.6 cmt. (3), 204 Pa.Code at § 81.4.¹²

Because the Supreme Court regulates the release of any information relating to the representation of a client under Pa. R.P.C. 1.6(a), including a proposed settlement agreement, any provision of the RTKL that purports to require such disclosure again unconstitutionally infringes upon the Supreme Court's exercise of its authority under Article V, Section 10(c) of the Pennsylvania Constitution.¹³See Beyers, 594 Pa. at 668, 937 A.2d at 1091–93 (holding that the Rules of Professional Conduct and Rules of Disciplinary Enforcement, and not the Unfair Trade Practices and Consumer Protection Law,¹⁴ provided the exclusive remedy for attorney misconduct in collecting and distributing settlement proceeds); Lloyd v. Fishinger, 529 Pa. 513, 519–20, 605 A.2d 1193, 1196 (1992) (holding that Section 7101(a)(3) of the Judicial Code, 42 Pa.C.S. § 7101(a)(3), was an unconstitutional attempt by the legislature to enact rules of conduct relating to an attorney's solicitation of clients, an area exclusively regulated by the Supreme Court through the Rules of Professional Conduct).

Because our Supreme Court has sole jurisdiction over the practice of law, the RTKL could not confer upon a hearing officer or the OOR the authority to compel the disclosure of information in an attorney's case file, including settlement negotiations. Accordingly, the trial court's order is reversed and the order of the OOR is vacated.¹⁵

Judges SIMPSON and BROBSON dissent.

ORDER

AND NOW, this 16th day of August, 2012, the order of the Court of Common Pleas of Allegheny County, dated August 1, 2011, at No. GD 11–003642, is reversed and the order of the Office of Open Records is vacated.

CONCURRING AND DISSENTING OPINION BY Judge COVEY.

I respectfully dissent from the majority's conclusion that the Office of Open Records (OOR) does not have jurisdiction under the Right–to–Know Law (RTKL) ¹ to address the disclosure of documents in an attorney's case file. However, I concur with the majority that the settlement negotiations are not subject to disclosure.

On October 1, 2010, Jonathan D. Silver and the Pittsburgh Post–Gazette (collectively the Gazette) submitted a request under the RTKL to the City of Pittsburgh (City) requesting access to and copies of all correspondence beginning March 19, 2010 through the present day between attorneys for the estate of Curtis Mitchell on one side and city officials on the other, concerning settlement negotiations regarding the death of Curtis Mitchell. The City denied the request on the basis that the records requested were not public records because they were protected by the attorney work-product and the attorney-client privileges.

The Gazette appealed to the OOR, which issued a Final Determination overruling the City's denial and granting the Gazette's appeal. The City appealed to the trial court. The trial court held an in camera review which revealed ten letters and one fax between the City's solicitors and counsel for the Mitchell family. The trial court determined none of the documents were protected by the attorney work-product or the attorney-client privilege. Accordingly, on August 1, 2011, the trial court denied the City's Motion for a Protective Order and affirmed the OOR's Final Determination to the extent that the City was directed to comply within 30 days to the Gazette's...