Attorney-client communications must be confidential, and be kept confidential, in order to be privileged and protected from compelled disclosure. When clients communicate with their lawyers, the attorney-client back-and-forth often relates to information that ultimately will be made public or otherwise shared with third parties. A client and lawyer may discuss privately the proposed contents of a forthcoming pleading, affidavit, SEC filing, or will. Attorneys and clients could, and often do, hold private discussions in order to plot out what to say in open court or disclose during negotiations with an opponent. In other words, attorneys often talk with their clients privately and confidentially about future statements—oral and written—that will be made publicly.

A recent decision from the Pennsylvania Superior Court raises the question of whether the attorney-client privilege applies when private communications between the client and counsel involve matters that are “intended to be disclosed to third parties.” See Brand v. Brand, No. 1317 WDA 2023, 2025 WL 2452252 (Aug. 26, 2025) (nonprecedential). Brand involves an intra-family dispute over a parcel of property, a dispute that implicated a father’s estate planning. An opposing party (one of his sons) sought production of the father’s communications with counsel.

The trial court held that certain communications between the father and his estate planning lawyers were not privileged in the first instance because those communications “involve matters that were intended to be disclosed to third parties” in documents such as “a will, irrevocable trust, power of attorney, insurance policies, and an option agreement to purchase an interest in property.” The father appealed, arguing that the trial court wrongly had held that “the attorney-client privilege does not apply to communications … made for purposes of obtaining and providing estate planning advice.”

A divided Superior Court panel affirmed. The majority quoted approvingly the portion of the trial court’s opinion that held that the privilege simply did not apply at all to communications that involved estate planning because the subject matter of those communications was “intended to be disclosed to third parties.”

The trial court and Superior Court majority opinions thus sweep broadly by suggesting that the privilege does not protect private attorney-client communications merely because those communications involve matters that ultimately would be made public or otherwise disclosed to third parties. Indeed, the Superior Court dissent offers the view that the majority opinion was so sweeping that it amounts to a “holding that the attorney-client privilege does not apply to communications dealing with ‘estate planning.’” 

It is doubtful that the Superior Court majority intends for Brand to sweep as broadly as its opinion suggests. Many private and confidential attorney-client consultations involve matters that ultimately will be disclosed publicly. Consider, for instance, the following examples:

• A client communicates to his attorney what the client thinks should be included in an interrogatory answer;
• A lawyer advises her client about what to say during contract negotiations;
• A client emails his attorney about his desired disposition of assets for the attorney to include in the will the attorney is preparing; and
• A client tells an attorney about certain facts in relation to the attorney’s preparation of a complaint for the client.

In all of those examples, the private attorney-client communications relate to documents or statements intended ultimately to be made public or otherwise disclosed to third parties. Yet the lawyers and clients in those examples likely (rightly) assume that those attorney-client communications are privileged. 

So long as the client does not place at issue the confidential consultations themselves, the ultimate public disclosure of the subject matter should not deprive earlier private communications of the protection of the attorney-client privilege. One leading treatise has observed that the attorney-client privilege “should not be lost simply because the object of the confidential communication may one day be shared with others or become public” and that courts that rule otherwise errantly refuse to recognize that clients have a reasonable expectation of privacy regarding such communications. See Attorney-Client Privilege in U.S. Section 5:12 (Dec. 2024).

Count Brand among the decisions errantly applying this mistaken “ultimate-intended-use” analysis. When a client confers privately with counsel in order to obtain legal advice, the attorney-client privilege shields that communication from later discovery. Notwithstanding Brand’s suggestion to the contrary, that should be true even if the private attorney-client communication is about a topic, statement, or document that ultimately will be made public or otherwise disclosed to third parties.

Reprinted with permission from The Legal Intelligencer, © ALM Media Properties LLC. All rights reserved.