Behne et al v. Halstead et al

Filing 43

MEMORANDUM AND ORDER: the following documents shall be disclosed by Dfts toPltfs: Exhibit 4 Proposed letter (only) to Behne. If sent, privilege waived.Exhibit 8 Proposed press release only (if published).Exhibit 10 Newspaper release (if released).Exh ibit 11 Statement of Borough (if published).Exhibit 15 Policy re: GPS Systems (if adopted).Exhibit 16 Arbitration Decision.Exhibit 19 Letter (if sent).Exhibit 24 Administrative Policy (if adopted).Exhibit 25 Letter (if sent).Exhibit 29 Report on motion. Exhibits 30-34 E-mails.1Exhibit 37 Press release.Exhibit 56 E-mail.Exhibit 59 E-mail.Exhibit 62 E-mail. Signed by Honorable Sylvia H. Rambo on 09/03/13. (ma)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
RICHARD G. BEHNE, JR., and
BARRY KELLER,
Plaintiffs
v.
TAMI HALSTEAD, LORRIE
NULTON, JASON EHRHART,
JAMES PRESCOTT, THOMAS
FITZPATRICK, and the
BOROUGH OF NEWPORT,
Defendants

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Civil No. 1:13-CV-0056

Judge Sylvia H. Rambo

MEMORANDUM
On July 9, 2013, this court held a conference call with attorney Richard
Wix on behalf of Plaintiffs, and attorney Anthony Sherr, on behalf of Defendants.
One of the purposes of this conference call was to address discovery issues related to
certain documents requested by Plaintiffs and withheld by Defendants. Pursuant to
that conference call, an order issued which directed, in part:
1)

Defendants shall submit a revised privilege log that
adequately sets forth the description and subject
matter of the withheld documents, as well as the
basis for the privilege asserted no later than July 19,
2013.

2)

Defendants shall submit any withheld document
identified on the privilege log for an in camera
review no later than July 19, 2013.

(Doc. 26.) Defendants complied with this part of that order.
On July 25, 2013, this court sent a memorandum to both counsel in
which the court set forth its intended ruling. Of concern to the court were documents
in the privilege log numbered 18, 21, 22, 26, 30, 31, 32, 33, 35, and 36. This issue

queried by this court was whether these documents were between an attorney and a
client and whether legal advice was being sought. In an e-mail sent to the court on
August 23, 2013 by attorney Sherr, he advised that it was anticipated that Mr.
Laskowski and Ms. Miller were to be reappointed as solicitors for the Newport
Borough counsel and were, in fact, appointed “in and about June of 2012.” Mr.
Sherr also cited a district court case, the Pennsylvania Rules of Professional
Conduct, and a Pennsylvania statute concerning attorney-client privilege.
This court agrees that 42 Pa. Cons. Stat. Ann. § 5928 provides that “in a
civil matter counsel shall not be competent or permitted to testify to confidential
communications made to him by his client, nor shall the client be compelled to
disclose the same. . . .” Rule 1.18 of the Pennsylvania Rules of Professional Conduct
covers duties to prospective clients. It reads in part as follows:
(a) A person who discusses with a lawyer the possibility of
forming a client-lawyer relationship with respect to a
matter is a prospective client.
(b) Even when no client-lawyer relationship ensues, a
lawyer who has had discussions with a prospective client
shall not use or reveal information which may be
significantly harmful to that person learned in the
consultation, except as Rule 1.9 would permit with respect
to information of a former client.
The explanatory comment following this rule states:
[1] Prospective clients, like clients, may disclose
information to a lawyer, place documents or other property
in the lawyer’s custody, or rely on the lawyer’s advice. A
lawyer’s discussions with a prospective client usually are
limited in time and depth and leave both the prospective
client and the lawyer free (and sometimes required) to
proceed no further. Hence, prospective clients should
receive some but not all of the protection afforded clients.
[2] Not all persons who communicate information to a
lawyer are entitled to protection under this Rule. A person
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who communicates information, such as an unsolicited email or other communication, to a lawyer, without any
reasonable expectation that a client-lawyer relationship will
be established is not a “prospective client” within the
meaning of paragraph (a).
(Emphasis added.)
In Constand v. Cosby, 232 F.R.D. 494 (E.D. Pa. 2006), the court set
forth the traditional elements of the attorney-client privilege:
(1) the asserted holder of privilege is or sought to become a
client;
(2) the person to whom the communication was made (a) is
a member of the bar of a court, or his or her subordinate,
and (b) in connection with this communication is acting as
a lawyer;
(3) the communication relates to a fact of which the
attorney was informed (a) by his client (b) without the
presence of strangers (c) for the purpose of securing
primarily either (I) an opinion of law or (ii) legal services
or (iii) assistance in some legal proceeding, and (d) not for
the purpose of committing a crime or tort; and
(4) the privilege has been (a) claimed and (b) not waived
by the client.
(Id. at 501.)
It is this court’s opinion that Tami Halstead was not seeking attorney
representation or advice from Stan Laskowski. At all times during the
communication from Halstead to Laskowski, Halstead was represented by Tony
Sherr. Nor can it be said that as a member of Newport Borough Council she was
seeking advice on the Borough’s behalf. There is no indication in the record before
this court that she had the authority on behalf of the council to seek advice.
In Exhibit 31, page 2, dated March 20, 2012, entitled Newport Borough
Counsel Meeting, there appears the following statement: “Before the meeting
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President Barb Heart stated that we were not voting tonight on agenda item #2 which
was hiring an attorney.” According to Exhibit 32 at page 3, as of August 6, 2012,
Laskowski was not the solicitor for the Borough of Newport. The then-existing
solicitor resigned on or about August 20, 2012. (See Exhibit 33, e-mail of August
20, 2012 from Halstead to Laskowski.) It does appear that a majority of the council
are seeking to have Laskowski as the borough solicitor as of August 14, 2012 or
August 20, 2012 and, therefore, the last two pages of Exhibit 33 are protected.
Otherwise, it is this court’s opinion that the e-mails, set forth in the
accompanying order, were unsolicited e-mails and communication to a lawyer,
without any reasonable expectation that a client-lawyer relationship would or will be
established and is therefore not a prospective client – neither for herself or on behalf
of the Newport Borough. Furthermore, it does not appear that any of the e-mails
seek legal advice, opinion of law, or assistance in some legal proceeding.
An appropriate order will be issued.

s/Sylvia H. Rambo
United States District Judge
Dated: September 3, 2013.

4

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
RICHARD G. BEHNE, JR., and
BARRY KELLER,
Plaintiffs
v.
TAMI HALSTEAD, LORRIE
NULTON, JASON EHRHART,
JAMES PRESCOTT, THOMAS
FITZPATRICK, and the
BOROUGH OF NEWPORT,
Defendants

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Civil No. 1:13-CV-0056

Judge Sylvia H. Rambo

ORDER
AND NOW, this 3rd day of September, 2013, IT IS HEREBY
ORDERED THAT the following documents shall be disclosed by Defendants to
Plaintiffs:
Exhibit 4

Proposed letter (only) to Behne. If sent,
privilege waived.

Exhibit 8

Proposed press release only (if published).

Exhibit 10

Newspaper release (if released).

Exhibit 11

Statement of Borough (if published).

Exhibit 15

Policy re: GPS Systems (if adopted).

Exhibit 16

Arbitration Decision.

Exhibit 19

Letter (if sent).

Exhibit 24

Administrative Policy (if adopted).

Exhibit 25

Letter (if sent).

Exhibit 29

Report on motion.
1

Exhibits 30-34

E-mails.1

Exhibit 37

Press release.

Exhibit 56

E-mail.

Exhibit 59

E-mail.

Exhibit 62

E-mail.
s/Sylvia H. Rambo
United States District Judge

1

Except for the last 2 pages of Exhibit 33.
2