Succession of Smith v. Kavanaugh, Pierson & Talley

• Decision Date: 09 September 1987
• Docket Number: No. 86-CC-0753,86-CC-0753
• Citation: 513 So.2d 1138
• Parties: SUCCESSION OF Bilwood SMITH v. KAVANAUGH, PIERSON & TALLEY, et al.
• Court: Louisiana Supreme Court

Page 1138

513 So.2d 1138

SUCCESSION OF Bilwood SMITH v. KAVANAUGH, PIERSON & TALLEY, et al.

No. 86-CC-0753.

Supreme Court of Louisiana.

Sept. 9, 1987.

Rehearing Denied Nov. 3, 1987.

John White, Jr., Baton Rouge, for applicant.

Paul Spaht, Kantrow, Spaht, Weaver & Blitzer, Stephen Wilson, Keogh, Cox & Wilson, Ltd., Baton Rouge, John Combe, Jr., Jones, Walker, Waechter, Poitevent, Carrere & Denegre, New Orleans, Donald Zuber, Seale, Smith & Phelps, Charles Schutte, Jr., Mathews, Atkinson, Guglielmo, Marks & Day, Baton Rouge, Frederick Preaus, Ward & Clesi, A. Justin Ourso, III, Hervin Guidry, David B. Girard, Barham & Churchill, New Orleans, Marc W. Judice, Juneau, Hill, Judice, Hill & Adley, Lafayette, David M. Ellison, Ellison & Smith, Baton Rouge, Michael R. Fontham, Stone, Pigman, Walther, Wittmann & Hutchinson, New Orleans, Jeri Ann Flynn, Baton Rouge, Anne W. Schneider, J.B. Kiefer, Metairie, for respondents.

DENNIS, Justice. ^*

In this legal malpractice action, filed after the apparent expiration of the prescriptive period, the plaintiff's allegation that she was informed for the first time on August 10, 1984 about the defendants-attorneys' acts of malpractice in handling her husband's succession, and the defendants' attempt to depose plaintiff's present attorney on that subject, have raised issues as to (1) whether plaintiff waived her attorney-client privilege regarding communications with her present attorney by pleading contra non-valentum or by testifying on her deposition about those communications and (2) whether defendants have shown extraordinary circumstances as required by law for taking the deposition of an attorney of record. After a hearing, the trial court ordered the plaintiff's attorney to submit to a deposition as to communications which occurred on or before August 10, 1984 between him and plaintiff discussing alleged acts of malpractice which caused damages. The court of appeal granted the defendants' application for a supervisory writ and ordered the plaintiff's attorney to submit to a deposition as to his knowledge of any matters concerning alleged acts of malpractice obtained from the date of the initial attorney-client consultation (February 10, 1984) through August 10, 1984. No. CW-86-0445 (La.App. 1st Cir. April 17, 1986).

We granted plaintiff's application for a writ and vacated the court of appeal order. 488 So.2d 191 (La.1986). Subsequently we granted a rehearing. 492 So.2d 1210 (La.1986). We now affirm our decision to vacate the court of appeal order and remand the case to the trial court with instructions: If plaintiff elects not to use evidence of attorney-client communications a deposition of her attorney may not be taken; if she elects to use such evidence, the trial court's order permitting his deposition shall be reinstated.

A litigant's pleading of a claim or defense to which his attorney-client communications are relevant does not by such pleading alone waive his attorney-client privilege. A pleading must inevitably require the introduction of a privileged communication at trial to constitute a waiver. A party who makes a pretrial partial disclosure of his attorney-client communications waives his privilege as to all such communications on the same subject unless he stipulates that he will not introduce any such communications at trial. Furthermore, by electing or committing himself to introduce his attorney-client communications at trial and thereby waiving his privilege to such communications, a party creates a special unfairness to his adversary which qualifies as an extraordinary circumstance warranting a court order that his attorney submit to a deposition by his adversary as to these communications.

Facts

Bilwood Smith died August 10, 1968. Mrs. Earline Jo Jennings Smith, his widow and plaintiff herein, employed the defendant attorneys and law firms to represent her and her late husband's succession. Mrs. Smith served as provisional administratrix, administratrix and executrix until she renounced the succession on December 4, 1970. The defendant attorneys and firms represented Mrs. Smith in her individual and representative capacities and handled the legal affairs of the succession.

Mrs. Smith filed this suit on June 10, 1985 to recover for damages to herself and the succession allegedly caused by the defendant attorneys' legal malpractice. In her petition Mrs. Smith alleged that she was not aware of the acts of malpractice until August 10, 1984. The defendants filed an exception of liberative prescription urging that the one year prescriptive period expired before plaintiff filed her suit.

Defendants took a deposition of Mrs. Smith. She testified that she was not aware of any negligence or wrongdoing on defendants' part until her present lawyer informed her on August 10, 1984 that the defendants had maladministered the succession. She admitted that she had first consulted her attorney on February 28, 1984 and had met with him between that date and August 10, 1984. However, she contended that he had not informed her of any dereliction of duty by her former attorneys until the latter date.

Upon learning that Mrs. Smith first consulted her present attorney more than one year before filing suit, the defendants moved the district court to grant them leave to take her attorney's deposition. After a hearing, the district court granted defendants leave to depose plaintiff's attorney as to attorney-client communications on or before August 10, 1984 regarding acts of malpractice causing damages. The court of appeal, in response to defendants' application expanded the scope of the authorized deposition to cover the attorney's knowledge concerning alleged malpractice obtained during the attorney-client relationship between February 28, 1984 and August 10, 1984. No. CW-86-0445 (La.App. 1st Cir.1986). We granted a writ and vacated the court of appeal order. 488 So.2d 191 (La.1986). We granted a rehearing and now consider whether the material sought through deposition by defendants is privileged and whether defendants have demonstrated extraordinary circumstances as required by law to take the deposition of an attorney of record.

The Attorney Client Privilege

La.R.S. 13:3734.3 (West Supp.1987) provides that "[n]o attorney or counsellor at law shall give evidence of anything that has been confided to him by his client...." The privilege extended in civil cases first appeared in Louisiana as article 2262 of the Civil Code of 1825 before its transfer to article 2283 of the Civil Code of 1870 and its reenactment as a revised statute in 1986. ¹

The notion that the loyalty owed by the lawyer to his client disables him from being a witness in his client's case is deep-rooted in Roman law. McCormick, On Evidence, § 87, at 204 (3rd ed. 1984). This Roman tradition may have been influential in developing the attorney-client privilege, which is the oldest of the privileges for confidential communications known to the common law. 8 J. Wigmore, Evidence, § 2290 (McNaughton rev. 1961). Its purpose is to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and the administration of justice. The privilege recognizes that sound legal advice or advocacy serves public ends and that such advice or advocacy depends on the lawyer's being fully informed by the client. Upjohn Co. v. United States, 449 U.S. 383, 390-93, 101 S.Ct. 677, 683-84, 66 L.Ed.2d 584, 592-93 (1981).

The lawyer's exemption from disclosing his client's secrets is justified on the ground that claims and disputes which may lead to litigation can most justly and expeditiously be handled by practiced experts, namely lawyers, and that these experts can act effectively only if they are advised of the facts by the parties whom they represent. Full disclosure will be promoted if the client knows that what he tells his lawyer cannot, over his objection, be extorted in court from his lawyer's lips. McCormick, supra, § 87. The privilege also promotes compliance with the law, particularly in complex areas of business law such as antitrust, securities, and tax. The attorney to whom confidences are freely expressed has a greater opportunity to learn of and counsel against potentially unlawful conduct. See Upjohn, 449 U.S. at 390, 101 S.Ct. at 683, 66 L.Ed.2d at 592; In re Horowitz, 482 F.2d 72, 81 (2d Cir.), cert denied, 414 U.S. 867, 94 S.Ct. 64, 38 L.Ed.2d 86 (1973); Davidson & Voth, Waiver of the Attorney-Client Privilege, 64 Or.L.Rev. 637, 638 (1986).

Although the defendants do not question the privileged character of the attorney-client communications for the most part, they argue briefly that the communications at issue in this case were not confidential because of the presence of Mrs. Smith's accountant during her consultations with her attorney. It is of the essence of the privilege that it is limited to those communications which the client either expressly made confidential or which he could reasonably assume under the circumstances would be understood by the attorney as so intended. McCormick, supra, § 91, at 217. However, if the help of an expert or skilled person such as an accountant or interpreter is necessary to enable the client to consult the lawyer his presence does not deprive the communication of its confidential and privileged character. United States v. Kovel, 296 F.2d 918, 920-23 (2d Cir.1961); McCormick, supra, § 91, at 218. In the present case the assistance of Mrs. Smith's accountant was necessary to enable her to consult with the attorney and she could reasonably assume the attorney understood that their communications were intended to be confidential.

Waiver of Privilege

The client is the holder of the privilege; therefore, the power to waive it is his alone, or his attorney or agent acting with his authority, or his representative may exercise this power. McCormick, supra, § 93, at 223. Waiver...