American Nat. Watermattress Corp. v. Manville, s. 4652
| Decision Date | 26 March 1982 |
| Docket Number | Nos. 4652,4653,s. 4652 |
| Citation | 642 P.2d 1330 |
| Parties | AMERICAN NATIONAL WATERMATTRESS CORPORATION, Appellant and Cross-Appellee, v. Florence E. MANVILLE, Appellee and Cross-Appellant. |
| Court | Alaska Supreme Court |
Dennis M. Bump of Hughes, Thorsness, Gantz, Powell & Brundin, Fairbanks, for appellant and cross-appellee American Nat. Watermattress Corp.
Barbara L. Schuhmann of Merdes, Schaible, Staley & DeLisio, Inc., Fairbanks, for appellee and cross-appellant.
Before RABINOWITZ, C. J., CONNOR and BURKE, JJ., BRYNER, C. J. of the Court of Appeals, and SINGLETON, J. of the Court of Appeals. *
Florence Manville was injured when she was pinned beneath her waterbed after it rolled off its pedestal. The waterbed had been purchased from Jack Pendley, a retail dealer. The waterbed had been manufactured by American National Watermattress Corporation (ANWC).
Manville filed an action against ANWC and Pendley seeking the recovery of damages for her injuries. She sued on theories of negligence, breach of warranties, and strict liability.
Before trial, Pendley settled with Manville for $60,000. Manville then proceeded to trial against ANWC, the remaining defendant. The jury found for Manville and returned a verdict against ANWC of approximately $150,000, which, after adjustment by the trial judge for Pendley's settlement and plaintiff's negligence, resulted in a net money judgment of approximately $105,000, including costs and attorneys' fees. The jury also found that Pendley had a right to indemnity from ANWC for his settlement payment.
ANWC presently appeals from the final judgment, alleging various trial court errors in discovery and evidentiary rulings. In addition, ANWC attacks the sufficiency of the evidence to support the court's instruction to the jury on impaired earning capacity.
Manville has filed a cross-appeal in which she attacks the trial court's method of computation used in reducing the jury verdict against ANWC to allow for her earlier settlement with the other defendant, Pendley.
Within a few days after the accident, Manville contacted her present attorneys for legal advice. Since two of the firm's attorneys were then in trials, the firm sent its full-time employee, Chuck Ward, to interview Manville so that they "could provide her with legal advice and possible legal assistance in regard to that accident." It is undisputed that Ward was not an attorney.
Ward interviewed Manville in her hospital room and tape recorded a portion of his conversation with her. This tape recording was transcribed and delivered to the firm's attorneys. The firm subsequently accepted Manville's case.
During discovery, defendants ANWC and Pendley learned of the existence of Manville's statement and requested its production. Manville refused, claiming the document was privileged.
ANWC and Pendley then moved for an order to compel production of the statement, maintaining that as an eyewitness statement, it was not protected by either the attorney-client privilege or the attorney work product privilege. In its opposition to the motion, Manville made clear that she was not claiming the attorney work product privilege, but rather was relying solely on the attorney-client privilege. After oral argument, the trial court denied the motion.
On appeal, ANWC again asserts that Manville's statement was not protected by either the attorney-client or attorney work product privileges, and therefore, the trial court should have ordered its production. ANWC's claim that the court should have ordered the production of Manville's statement is without merit. Her statement is protected from discovery by the attorney-client privilege as a confidential communication from Manville to her attorneys through their agent. 1
The trial in this case took place before the promulgation of the current Evidence Rules which now govern privilege questions. See Alaska Rule of Evidence 501-512. Therefore, former Civil Rule 43(h)(2) provided the basis for the attorney-client privilege:
An attorney shall not, without the consent of his client, be examined as to any communication made by his client to him, nor as to the attorney's advice given thereon, in the course of the attorney's professional employment.
As this court has noted: "The purpose of the attorney-client privilege is to promote the freedom of consultation of legal advisors by clients by removing the apprehension of compelled disclosure by the legal advisors." United Service Automobile Association v. Werley, 526 P.2d 28, 31 (Alaska 1974). However, this desire to promote the consultation of attorneys through the use of the attorney-client privilege must be balanced against the need for the discovery of facts. As we have stated: "Given our commitment to liberal pre-trial discovery, it follows that the scope of the attorney-client privilege should be strictly construed in accordance with its purpose." Id.
This court has never directly ruled on the question of whether a statement of facts given by a prospective client to an attorney's agent is protected by the attorney-client privilege. For analysis, this issue may be more conveniently broken into three subissues.
A. Was Manville a "client" entitled to the protection of the attorney-client privilege, where she made the questioned communication in an attempt to obtain legal advice, but the attorney had not yet accepted her case?
While former Civil Rule 43(h)(2) and our own case law are silent on this issue, the statement of the attorney-client privilege embodied in the new Evidence Rules contains a clear answer which, although not in effect at the time of trial, is persuasive. Evidence Rule 503(a)(1) sets out the following definition of a "client" for the purposes of the attorney-client privilege: "A client is a person ... who is rendered professional legal services by a lawyer, or who consults a lawyer with a view to obtaining professional legal services." (Emphasis added.)
The language of the above provision is further clarified in the Evidence Rules Commentary: "The definition of 'client' extends the status of client to one consulting a lawyer preliminarily with a view of retaining him, even though actual employment does not result." Alaska Rule of Evidence Commentary 503(a).
In addition, it is clearly the universal common-law rule that such "(c) ommunications in the course of preliminary discussion with a view to employing the lawyer are privileged though the employment is in the upshot not accepted." C. McCormick, Law of Evidence § 88, at 179 (2d ed. 1972). Accord, 8 J. Wigmore, Evidence § 2304, at 587 (McNaughton rev. 1961); 81 Am.Jur.2d Witnesses § 180 (1976 & Supp.1980); 97 C.J.S. Witnesses § 278 (1957 & Supp.1980).
As stated by one court, the reason for such a rule is that "no person could ever safely consult an attorney for the first time with a view to his employment if the privilege depended on the chance of whether the attorney after hearing his statement of the facts decided to accept the employment or decline it." In re Dupont's Estate, 140 P.2d 866, 873 (Cal.App.1943); accord, People v. Canfield, 527 P.2d 633, 636-37 (Cal.1974).
In the present case, Manville was seeking an attorney to prosecute her case. The interview with her at the hospital was undertaken in order that the attorneys "could provide her with legal advice and possible legal assistance in regard to the accident." Therefore, Manville qualified as a "client" within the meaning of the attorney-client privilege.
B. Was Manville's statement protected by the attorney-client privilege where it was made to an employee of her attorney, rather than the attorney himself?
Again, former Civil Rule 43(h)(2) and Alaska case law do not address this issue. However, the attorney-client privilege set out in the new Evidence Rules provides an affirmative answer. Rule 503(b) sets out the general rule of privilege:
A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client, (1) between himself or his representative and his lawyer or his lawyer's representative, or (2) between his lawyer and the lawyer's representative ....
(Emphasis added.)
Rule 503(a)(4) provides a definition of "representative of a lawyer": "A representative of the lawyer is one employed to assist the lawyer in the rendition of professional legal services."
The Evidence Rules Commentary states: "The definition of 'representative of the lawyer' recognizes that the lawyer may, in rendering legal services, utilize the services of assistants in addition to those employed in the process of communicating." Evidence Rules Commentary 503(a)(4) (emphasis added). This language clearly indicates that even in the absence of the "representative of the lawyer" language, the attorney-client privilege would protect confidential client communication to the attorney's employee who is used simply as a conduit for communication. This conforms to the dictates of the traditional common-law privilege.
Even the courts which took the strictest view of the common-law privilege held that it extended to laymen who are necessary intermediaries between attorney and client. 8 J. Wigmore, supra, § 2301, at 583 & n.1; C. McCormick, supra, § 89, at 182, § 91 at 188-89. Accord, United States v. Kovel, 296 F.2d 918, 920-23 (2d Cir. 1961); City and County of San Francisco v. Superior Court, 37 Cal.2d 227, 231 P.2d 26, 30-31 (1951). See cases collected in: Annot., 96 A.L.R.2d 125, § 32-33, 147-48 (1964 & Supps.1976 & 1980); 81 Am.Jur.2d Witnesses §§ 179, 191, 217 (1976 & Supp.1980); 97 C.J.S. Witnesses §§ 276c(1), (2) (1957 & Supp.1980).
In the present case, Manville's communication to her attorneys' employee, Ward, would be protected by even...
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...as not being truly attuned to the community and the accused’s reputation therein. American National Water Mattress Corp. v. Manville , 642 P.2d 1330 (Alaska 1982). In a products liability action brought by a woman who was injured when an allegedly unstable water mattress rolled onto her, th......
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