There was much fanfare surrounding Sonia Sotomayor's nomination to the Supreme Court of the United States.  The Supreme Court's first opinion of the term, authored on December 8, 2009 by Justice Sotomayor in Mohawk Industries Inc. v. Carpenter, received no attention in comparison.  It was issued almost in silence, but it portends to have a serious impact upon one of the most important protections the law affords clients.

You may have heard the phrase "the attorney-client privilege".  It refers to the concept that when you seek a lawyer's advice, no one can force you or your lawyer to reveal your confidential communications with each other.  It is the foundation of the attorney-client relationship.  Clients can feel comfortable communicating openly with their attorneys; the attorneys may not tell what they say. 

Prior to Mohawk, federal appellate courts were divided over whether trial court decisions on the scope of information not covered by the privilege were immediately appealable.  The Third Circuit, the federal appellate court in this region, permitted immediate appellate review.  Pennsylvania state courts did, too.  In this region, then, if a judge ordered a party to produce what it claimed was a privileged document (a letter, for instance, from the party to his attorney), the party could hold onto the document and appeal.  Mohawk took away the right in federal courts to that immediate appeal.  Pennsylvania state courts may follow their federal counterparts and also eliminate the right of immediate appellate review.  That issue has not yet been decided.

One thing is certain: Mohawk makes trial judge decisions on what is not privileged far more grave.  Once privileged information is turned over, the harm is done; the opposing party and its counsel know the privileged information.  No later reversal will change that fact.

Mohawk underscores the importance of selecting the right legal counsel.  Your attorney should be familiar with legal precedents.  You should look for a lawyer who will not only help you reach your desired outcome, but will assert the strongest case law in favor of protecting your privileged communications.  The best way to avoid getting caught in the Mohawk conundrum is to win the battle at the trial court level, having your attorney convince the trial judge your confidential communications are indeed privileged.