427 P.3d 1216
Utah Ct. App.2018Background
- In 2009 Tanner Krahenbuhl died in a motor home crash; plaintiffs (James, Kayleen, and Tanner’s Estate) retained Prior Counsel to pursue negligence (premises) and product-liability (brake) claims.
- Prior Counsel filed a negligence suit against Powder Mountain two years and one day after the death; Powder Mountain asserted the two-year statute of limitations and later prevailed.
- Prior Counsel withdrew in November 2012; Successor Counsel was retained in December 2012. Powder Mountain’s summary judgment on timeliness was ultimately sustained.
- Plaintiffs sued Prior Counsel (legal malpractice) in 2015, alleging failure to timely file negligence and product-liability claims; Prior Counsel raised comparative negligence and other defenses.
- Prior Counsel subpoenaed Successor Counsel’s file (subpoena duces tecum). Plaintiffs objected claiming attorney-client privilege for communications with Successor Counsel. The district court ordered compliance; plaintiffs appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plaintiffs waived attorney-client privilege as to communications with Successor Counsel by suing Prior Counsel for malpractice | Plaintiffs (Krahenbuhl) argued retention of Successor Counsel and filing malpractice suit against Prior Counsel does not waive privilege as to Successor Counsel communications | Prior Counsel argued malpractice claim places successor communications "at issue" (waiver), and that suing one attorney waives privilege as to all attorneys in underlying case | Court held plaintiffs did not waive privilege; ordering compliance with subpoena was reversible error |
Key Cases Cited
- Doe v. Maret, 984 P.2d 980 (Utah 1999) (party waives privilege only when attorney-client communications are placed “at the heart of a case”)
- Terry v. Bacon, 269 P.3d 188 (Utah Ct. App. 2011) (discussion of variations of the “at-issue” waiver)
- Rhone–Poulenc Rorer Inc. v. Home Indem. Co., 32 F.3d 851 (3d Cir. 1994) (test limiting waiver to instances where attorney advice is directly placed at issue)
- Pappas v. Holloway, 787 P.2d 30 (Wash. 1990) (applied a lower-bar “at-issue” waiver test to require production of successor counsel files)
- Moler v. CW Mgmt. Corp., 190 P.3d 1250 (Utah 2008) (only client can waive attorney-client privilege)