By Gina Passarella
The Legal Intelligencer

The Pennsylvania Senate is getting a third crack at its attempt to shield from public view legal bills related to the representation of Democratic caucus employees.
The Commonwealth Court granted the Senate's request for reargument in Levy v. Senate of Pennsylvania, but limited the reargument to the issue of whether client identities are exempt from the Right-to-Know Law's disclosure requirements under the grand-jury secrecy exception.

Having already determined that attorney-client privilege doesn't prevent disclosure of client identities or descriptions of legal services provided, the Commonwealth Court found in January that such information also can't be protected from disclosure under the attorney work-product doctrine, grand-jury secrecy rules or a criminal investigation exception.

In an order Thursday granting reargument, President Judge Dan Pellegrini vacated that January opinion and set reargument on the topic of whether "client identities in the Senate of Pennsylvania's legal billing records are entitled to protection under federal grand-jury secrecy rules."

Pellegrini gave the Senate 30 days to file a supplemental brief on that issue, and gave the plaintiff 30 days after that to respond. Pellegrini said the matter would be assigned to a panel to be decided on the briefs and without oral argument.

The case stems from a Right-to-Know Law request by Associated Press reporter Marc Levy for legal bills related to the Pennsylvania Senate's hiring of attorneys to represent former state Sen. Robert J. Mellow and Democratic caucus employees. The Senate had argued the names of the clients and the descriptions of the services the attorneys provided them were protected by the attorney-client privilege.

Levy had argued the RTKL was intended to provide transparency in whether the government was spending taxpayer money lawfully. He said redacting the names of clients from bills along with descriptions of the services provided them rendered such a determination impossible.

The state Supreme Court agreed with Levy, ruling in April 2013 that a client's identity is generally not privileged, unless divulging the client's identity would disclose either the legal advice given or the confidential communications provided.

The Supreme Court also addressed the issue of whether descriptions of legal services are privileged, ruling general descriptions of legal services included in attorney invoices are not privileged, while specific descriptions that would reveal attorney-client communications are protected.

The high court, however, reversed the Commonwealth Court's ruling that the additional bases for nondisclosure—work-product doctrine, grand jury secrecy and the criminal investigation exception—were waived by the Senate for failure to include them in its initial RTKL response. The Supreme Court remanded the case back to the Commonwealth Court for consideration of those factors on the merits.

In its January opinion, authored by Judge Robert Simpson, the court found on remand that none of those exceptions applied to bar disclosure of the information sought by Levy.

The Senate argued a grand jury witness, while allowed to discuss his grand jury testimony, can't be compelled to reveal his appearance before a grand jury or the subject of the testimony. Simpson said the veil of secrecy surrounding grand juries is broad, but not absolute.

Simpson said Levy wasn't attempting to compel disclosure of the substance of a grand jury proceeding, but rather the client identities in the Senate's billing records. Simpson said that, while the words "grand jury investigation" appear in the redacted documents, there is nothing in those documents that connects client identities to secret grand-jury material.

"Simply stated, the billing statements do not implicate 'matters occurring before a grand jury,'" Simpson said.

Gayle C. Sproul of Levine Sullivan Koch & Schulz in Philadelphia represents Levy.

"We believe that the client identities are discoverable and that [the Senate's] argument that federal law should control and that it is somehow different from state law is incorrect," Sproul said.

She said that, even if federal law applied given a federal grand jury was at issue in the case, the client identities would be discoverable in this context.

Matthew Haverstick of Conrad O'Brien represents the Senate.

"We think the issue is an important one and we're glad the court is considering it," he said in an emailed statement.

Read more: http://www.thelegalintelligencer.com/id=1202644782839/Senate-Gets-New-Shot-to-Shield-Legal-Bills-From-View#ixzz2uv7EUeSU