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Reprinted with permission from the February 28th edition of the The Legal Intelligencer © 2017 ALM Media Properties, LLC. All rights reserved.
Further duplication without permission is prohibited
The attorney-client privilege is the well-known and long-established court recognized protection of the substantive communications between an individual and his or her appointed counsel. The privilege protects litigants and their counsel from testifying or otherwise disclosing confidential communications between them despite the communications’ potential relevance or probative value. 42 Pa.C.S.A. § 5928; See also In re Grand Jury, 705 F.3d 133, 151 (3d. Cir. 2012).
The attorney-client privilege is designed to foster a public policy that encourages clients to make full disclosure of facts to their attorneys and to allow counsel to properly, competently, and ethically carry out representation. Idenix Pharm. V. Gilead Sci., Inc., 2016 WL 4060098 at 1 (D. Del. 2016). The privilege further fosters full and frank communications between counsel and their clients, thereby promoting public interests in law and the administration of justice. See J.N. S. W. School Dist., 55 F.Supp.3d 589, 598 (M.D. Pa. 2014); See also Magnetar Tech. Corp. v. Six Flags Theme Park Inc., 886 F.Supp.2d 466, 477 (D. Del. 2012).
The attorney-client privilege is widely recognized as a nearly insurmountable bar to discovery, however confidential communications between an attorney and his or her client may still be discoverable in limited circumstances. The privilege may be waived, either expressly by consent or implicitly by disclosing communications at issue to a third party, or by failing to timely assert the privilege. See Serrano v. Chesapeake Appalachia, LLC, 298 F.R.D. 271, 284 (W.D. Pa. 2014); see also Law Office of Phila. Waterfront Partners, 957 A.2d 1223, 1233 (Pa. Super. 2008); Nationwide Mut. Ins. Co. v. Fleming, 924 A.2d 1259, 1265 (Pa. Super. 2007).
Prior to Pennsylvania legally recognizing same-sex marriages, other states did offer same-sex marriages or civil unions. A problem for couples who entered into an out-of-state marriage or civil union was that if they later decided to divorce, they could not do so in the Pennsylvania family courts. This was because Pennsylvania did not recognize those marriages or civil unions as legal. In June 2013, in United States v. Windsor, the United States Supreme Court ruled that the Defense of Marriage Act’s (DOMA) defining marriage as between one man and one woman was unconstitutional, but the Court limited the impact of their decision. In May 2014, the United States District Court for the Middle District of Pennsylvania ruled in Whitewood v. Wolf that Pennsylvania’s definition of marriage and refusal to recognize out-of-state same-sex marriages were unconstitutional. Then, in June 2015, the United Stated Supreme Court in Obergefell v. Hodges ruled that same-sex couples must have the right to marry. This decision applies to every state.
While these decisions expanded rights to same-sex couples, a lot of questions were left unanswered. One of the big questions was whether civil unions entered into in other states prior to the legalization of same-sex marriage would be recognized by Pennsylvania. If the civil unions were not recognized as legal marriages, then Pennsylvania courts did not have to grant divorces, divide the assets and liabilities through equitable distribution or address support issues There were potential child custody ramifications as well. This left Pennsylvania same-sex couples who legally entered into out-of-state civil unions without the ability to divorce or deal with the economics related to their marriage through the family courts in their home state.
On December 28, 2016, the Superior Court of Pennsylvania addressed this question in Neyman v. Buckley. The Superior Court of Pennsylvania ruled “that a Vermont civil union creates the functional equivalent of marriage for the purposes of dissolution.” In this case, the parties, Pennsylvania residents, entered into a Vermont civil union in 2002 and separated later that year. From 2014 through 2015 the parties unsuccessfully sought a divorce in Pennsylvania and appealed their case to the Pennsylvania Superior Court arguing that the Pennsylvania family court should have jurisdiction to dissolve their Vermont civil union and that the Vermont civil union should be treated as a legal marriage in Pennsylvania. It is important to note that Vermont intended same-sex couples that entered into civil unions to have the same rights and access to the family court system as those who were married. The Superior Court of Pennsylvania used this reasoning to “conclude that the legal properties of a Vermont civil union weigh in favor of recognizing such unions as the legal equivalent of marriage for purposes of dissolution under the Divorce Code.” This decision allows same-sex couples who entered into out-of-state civil unions the same rights as if the civil union were a marriage. It also allows these couples access to Pennsylvania family courts to address those issues permitted under the Pennsylvania Divorce Code.
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