## Facts

- Samuel C. Stretton, a criminal defense attorney, formerly represented “Mr. Y” in a capital prosecution resulting in a death sentence.
- Stretton withdrew as counsel in 1983; substitute counsel later pursued ineffective-assistance claims against him during the direct-appeal proceedings.
- In 1984, a trial judge ruled the attorney-client privilege did not apply only to the extent necessary for Stretton to defend against those ineffective-assistance allegations.
- In 2003, DNA testing produced exculpatory results; the death sentence was vacated, the case was later nol prossed, and Mr. Y was released.
- The Commonwealth convened an investigating grand jury and suspected that, after Stretton’s withdrawal, Mr. Y placed a prison telephone call to Stretton in which Mr. Y made inculpatory statements.
- Stretton was subpoenaed to testify about the contents of that call; he invoked attorney-client privilege and refused to answer.
- The supervising judge held Stretton in civil contempt and imposed a $100-per-day fine, subject to possible remission depending on appellate review and later compliance.
- Stretton appealed the contempt order.

## Issues

1. Whether attorney-client privilege can protect communications between a lawyer and a former client made after formal representation ends when the communication arises from the ongoing professional relationship and lacks a clear disclaimer of confidentiality.
2. Whether a prior, limited privilege ruling tied to an ineffective-assistance hearing operates as a broader waiver permitting compelled grand-jury testimony about later communications.
3. Whether civil contempt sanctions may stand when the subpoenaed testimony is privileged.

## Decision

- The Superior Court reversed the contempt order and vacated the ongoing fine.
- The court held that attorney-client privilege may extend beyond the formal end of representation where the communication is rooted in the continuing professional relationship and confidentiality was not disclaimed.
- The court concluded Stretton properly invoked the privilege and could not be compelled to disclose the communication to the investigating grand jury.
- The court treated the 1984 privilege ruling as limited to the ineffective-assistance context and not a continuing, general waiver for later communications.

## Legal Principles

- Attorney-client privilege is not automatically terminated when counsel withdraws or representation in a matter formally ends.
- Communications between an attorney and a former client remain privileged when made within the continuing professional relationship and in a context where confidentiality is reasonably expected.
- Absent an express indication that the attorney is not acting in a professional capacity or that the communication is non-confidential, a former client may reasonably assume confidentiality continues for communications about the same matter.
- A court order permitting disclosure to defend against ineffective-assistance allegations is limited to that purpose and does not, without more, eliminate privilege for other settings or later communications.
- Civil contempt is improper where the witness’s refusal to testify is based on a valid claim of privilege.

## Conclusion

The court held that a former client’s post-representation communication to prior counsel may remain protected by attorney-client privilege when made in the continuing professional context without a clear disclaimer or waiver, and it therefore reversed the attorney’s contempt sanction for refusing to testify before an investigating grand jury.


In re Investigating Grand Jury (Appeal of Stretton), 887 A.2d 257 (Pa. Super. Ct. 2005)