Doe v. Maret

• Decision Date: 13 August 1999
• Docket Number: No. 970254.,970254.
• Citation: 1999 UT 74,984 P.2d 980
• Parties: Jane DOE, Plaintiff and Appellant, v. Leigh A. MARET, John Helfer, and Psychiatric Associates, Inc., Defendants and Appellees.
• Court: Utah Supreme Court

984 P.2d 980

1999 UT 74

Jane DOE, Plaintiff and Appellant, v. Leigh A. MARET, John Helfer, and Psychiatric Associates, Inc., Defendants and Appellees.

No. 970254.

Supreme Court of Utah.

August 13, 1999.

Michael L. Schwab, Lloyd A. Hardcastle, Farmington, for plaintiff.

David G. Williams, Terrence L. Rooney, Salt Lake City, for defendants.

DURHAM, Associate Chief Justice:

¶1 This case comes to us on interlocutory appeal. The district court granted appellee Leigh A. Maret's motion to compel the deposition testimony of appellant Jane Doe's counsel from a prior case involving a divorce and custody dispute ("prior counsel"). The sole issue for review is whether appellant waived the attorney-client privilege with regard to communications with her prior counsel. We affirm but modify the district court's ruling.

BACKGROUND

¶2 In this medical malpractice case, Doe claimed that defendants wrongfully provided her psychological records to her ex-husband's attorney in the divorce and custody proceeding. The psychological records were highly personal and confidential. Ultimately, Doe voluntarily gave up custody of her children and claims in this case that she decided to relinquish custody of her children because her ex-husband threatened to tell the children about the information contained in the records. Appellee Maret is the only defendant remaining in the suit.

¶3 In the court below, Maret filed a motion to compel the testimony of the attorneys who assisted plaintiff in the custody dispute. Maret argued that the Doe had waived the attorney-client privilege protecting communications with her prior counsel by placing her motivation for relinquishing custody at issue in this case. Maret also argued that Doe waived the privilege by providing voluntary deposition testimony concerning her communications with prior counsel.

¶4 The district court granted Maret's motion to compel, citing Rule 504 of the Utah Rules of Evidence as authority. However, the district court failed to identify the specific provision of Rule 504 justifying its finding of waiver. At one point in the hearing, the district judge offered some insight into his reasoning by stating:

And I don't understand how it can be now that she hasn't waived the privilege by filing this, by the nature of this lawsuit. For instance, if the lawyer were to testify that she didn't relinquish custody on the basis of this released information, that she did it on whatever other basis, then that would be very credible and important information.

¶5 Maret correctly notes that this court will uphold a district court's ruling of law on any ground made available to the court below, whether expressly relied upon or not. See Higgins v. Salt Lake County, 855 P.2d 231, 235 (Utah 1993)

. In reliance upon this principle, Maret argues that the district court's ruling can also be upheld on the ground that Doe waived the privilege in her deposition testimony under Rule 507 of the Utah Rules of Evidence.

¶6 We review the district court's conclusions of law for correctness. See Jacobsen Inv. Co. v. State Tax Comm'n, 839 P.2d 789, 790 (Utah 1992)

.

ANALYSIS

¶7 The attorney-client privilege "is intended to encourage candor between attorney and client and promote the best possible representation of the client." Gold Standard, Inc. v. American Barrick Resources (USA), Inc., 801 P.2d 909, 911 (Utah 1990). It is the oldest of the common law privileges protecting confidential communications. See Upjohn Co. v. United States, 449 U.S. 383, 389, 101 S.Ct. 677, 66 L.Ed.2d 584 (1981)

(citing Wigmore, Evidence in Trials at Common Law § 2290, Utah Code Ann. at 542 (McNaughten 1961)). The privilege is recognized in Rule 504 of the Utah Rules of Evidence¹ as well as by statute at § 78-24-8(2) (1996).² Although the legislature and courts have carefully guarded the integrity of the privilege, we have long held that it can be waived by a client. See In re Young's Estate, 33 Utah 382, 385, 94 P. 731, 732 (Utah 1908).

¶8 We first consider whether Doe waived the attorney-client privilege under Rule 504. In accordance with long-standing principles of common law, Rule 504 affords a client a privilege protecting confidential attorney-client communications subject to five exceptions. Specifically, the rule does not recognize a privilege when (1) the legal services were sought in furtherance of a crime or fraud, (2) the client has died and the lawyer-client communications are relevant to an issue between parties making claims through the deceased client, (3) the lawyer and client are themselves in dispute regarding an issue of breach of duty, (4) the communication is relevant to a document to which the lawyer was an attesting witness, or (5) a dispute arises between joint clients of the lawyer. None of these exceptions apply here.

¶9 A party may also waive the privilege by placing attorney-client communications at the heart of a case, as where a party raises the defense of good faith reliance on advice of counsel. See, e.g., Chevron Corp. v. Pennzoil Co., 974 F.2d 1156, 1162-63 (9th Cir.1992)

(holding that party's claim that tax position was reasonable because based on advise of counsel, waived the privilege); Conkling v. Turner, 883 F.2d 431, 434-35 (5th Cir.1989) (holding that when plaintiff alleged that fraud claim was not time-barred because he was unaware of fraud until informed of it by his attorneys, plaintiff waived privilege under federal rules); Multiform Dessicants, Inc. v. Stanhope Prods., Co., Inc., 930 F.Supp. 45, 48-49 (W.D.N.Y.1996) (holding that where attorney in patent infringement was to testify as expert witness, plaintiff waived privilege as to communications pertaining to patent prosecution); United States v. Bernard, 877 F.2d 1463, 1465 (10th Cir. 1989) (holding banker waived privilege when he told victim he had checked legality of proposed loan with attorney). Such is not the case here. Whether Doe chose to relinquish custody of her children in order to avoid further dissemination of the contents of her psychological records is a core issue in this case; whether she discussed this with her attorney is not.

¶10 Contrary to the district court's apparent reasoning, the fact that a lawyer may have credible and important information gained through communication with a client does not itself justify the setting aside of the privilege (even when the lawyer is the only non-party who may have that information). In many cases a lawyer may have information gained through client communications that would be of great utility to an opposing party in the same or later litigation. Allowing an opposing party to depose that attorney in such cases merely because that evidence would be important and credible would eviscerate the privilege. The same rationale could be used to justify deposing a cleric in whom Doe had confided simply because the cleric might have relevant information about Doe's motivations. Such a practice would not advance the purposes of the privilege as it would not "`encourage clients to make full disclosure to their attorneys.'" Gold Standard, 801 P.2d at 911 (quoting Fisher v. United States, 425 U.S. 391, 403, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1976)). Accordingly, we hold that Doe did not waive the attorney-client privilege under Rule 504 merely by bringing a suit where her decision to relinquish custody is at issue.

¶11 Maret also argues that Doe's communications with her prior counsel cannot be considered "confidential" under Rule 504 because she has discussed the details of those conversations in her deposition. However, Rule 504 does not address the issue of waiver. Rule 504 is only concerned with defining whether a communication is privileged at the time it is made. There is no dispute that Doe's communications with her prior counsel were intended to be confidential at the time they were made. Whether Doe subsequently waived the privilege is a question properly considered under Utah Rule of Evidence 507.

¶12 Rule 507(a) provides:

A person upon whom these rules confer a privilege against disclosure of a confidential matter or communication waives the privilege if the person or a predecessor while holder of the privilege voluntarily discloses or consents to the disclosure of any significant part of the matter or communication, or fails to take reasonable precautions against inadvertent disclosure.

Utah R. Evid. 507(a). Maret argues that during Doe's deposition she disclosed information regarding her communications with prior counsel and thereby waived the privilege under Rule 507. In opposition, Doe argues that the testimony at issue took place after Doe's counsel had made a "continuing objection" to all questions regarding attorney-client communications and that this objection prevented any subsequent waiver. Because the nature and context of this objection is important, we quote the discussion of it in its entirety:

PLAINTIFF'S COUNSEL: Back on the record. I have explained my understanding of the attorney/client privilege to my client, also I explained my understanding of the potential of waiving that. There are certainly some things she doesn't mind if you know but as with any attorney/client privilege that there are certainly things that she would rather be kept between her and her attorney. For that reason she has decided to assert the attorney/client privilege as to all conversations between her and her counsel.

CO-DEFENDANT'S COUNSEL: We could do it a couple of ways. I think that by bringing this lawsuit and alleging what she alleges as damages she has waived the privilege for her attorneys in her divorce action because she is alleging she made decisions, she was damaged by the records coming out, and so I think it is clearly relevant, and I can ask some questions. You can assert the privilege or not assert the privilege as you choose, but what I am understanding you to say is if I ask any questions about communications she had with attorneys who helped her in her

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