Plaintiff Connie D. Lietz, an adjudged incompetent, by her guardian ad litem, Julia P. Ellis, filed a third amended complaint against Paul H. Primock, Arthur M. Agasie and Nell Agasie, his wife. The defendants moved to dismiss the third cause of action in the third amended complaint for failure to state a claim. The trial court granted this motion, and two weeks later it signed and approved a formal order of dismissal in which it ordered the third cause of action “dismissed insofar as said cause of action refers to the defendant Paul H. Primock.” Plaintiff appeals from this order of dismissal. At the' same time the trial court granted the motion to dismiss, it also quashed an order to show cause which had been obtained by plaintiff for the purpose of ordering defendant Primock to show cause why he should not answer certain questions propounded to him by plaintiff’s counsel while taking the deposition of defendant Primock. On this appeal plaintiff complains of the quashing of her order to show cause as well as the order of dismissal.
Essentially plaintiff’s first assignment of error asserts that the trial court erred in ordering the dismissal because the third cause of action of her third amended complaint does state a claim against defendant Primock upon which relief can be granted. We agree.
The third cause of action sets up a claim by alleging that plaintiff sustained damage as a result of her reliance upon fraudulent misrepresentations made to her by defendant Primock pursuant to a conspiracy with the other defendants. For the purpose of testing the propriety of the order granting the motion to dismiss, we must accept the allegations of the complaint as true. Pinkerton v. Pritchard,
The complaint contains all the elements of actionable fraud which this court set forth in Law v. Sidney,
Defendant Primock argues that since his statement upon which plaintiff bases her action for fraud is merely an opinion statement, it will not support her action for fraud. In support of his argument he quotes the following from Law v. Sidney, supra [
“The general rule is that in order to constitute actionable fraud, the false representation must be of a matter or fact which exists in the present, or has existed in the past and cannot be predicated upon the mere expression of an opinion or upon representations in regard to matters of estimate or judgment.”
That this correctly states the general rule we entirely agree. However, the sentence next following the above quote in that case gives the reason for the general rule which makes its inapplicability to the instant case painfully apparent. That sentence reads;
“The person to whom statements of the character last mentioned are made has no right to rely upon them and does so at his peril, nor can they be supposed to influence his judgment.”
*277 We believe that a client has a right to rely upon statements of the sort herein involved when made to him by his attorney in the form of advice; and we further believe that they can be supposed to have influenced his judgment. A confidential relationship of attorney and client creates an exception to the general rule, that opinion statements may not serve as a basis for actionable fraud, where such opinion is tainted with an intent to gain some advantage over the client either for himself or for another. The relationship creates the exception because a person has a right to rely upon the opinion of a fiduciary who possesses superior knowledge on the subject concerning which he expresses an opinion. See Restatement, Torts § 525 (1938); 37 C.J.S. Fraud § 10; 23 Am.Jur., Fraud and Deceit, §§ 29 and 30; 12 R.C.L., Fraud and Deceit § 16; Prosser, Torts § 90 (2d ed. 1955). The instant case fits well within this exception. The lower court should not have dismissed the third cause of action of plaintiff’s third amended complaint.
Plaintiff’s second assignment of error involves the quashing by the trial court of her order to show cause. The occurrences leading up to that action follow. Plaintiff propounded the following questions to defendant Primock while taking his deposition :
(1) “Did Mrs. Lietz ever come to you and tell you that she was having a little difficulty with her real property here in Arizona?”
(2) “Were you acting as attorney for her?”
(3) “At the time Mrs. Lietz came up to your office, you had conversations with her pertaining to this real property ?”
(4) “Did you have Mrs. Lietz sign a quitclaim deed?”
(5) “Did you file or have recorded a quitclaim deed signed by Mrs. Lietz ?”
(6) “After that conversation did you then insert her [Nell Agasie’s] name in the quitclaim deed?”
(7) “Do you think at the time Mrs. Lietz came up to your office with her real property difficulties, that she was mentally incompetent ?”
(8) “Do you know if Mrs. Lietz received any consideration whatsoever for conveying the real property to Nell Agasie ?”
(9) “Did you at any time try to sell Connie Lietz’ equity in the property to anyone ?”
Defendant Primrock refused to answer these questions on the ground that answers thereto were barred by the attorney-client privilege until such time as that privilege were waived by plaintiff personally. In the course of taking defendant Primrock’s deposition, plaintiff’s counsel examined Julia *278 P. Ellis, plaintiff’s guardian ad litem. By that examination Miss Ellis as plaintiff’s guardian ad litem purported to waive any privileged communications between defendant Primrock and plaintiff. Defendant Primrock thereafter persisted in his refusal to answer these questions. Plaintiff’s counsel thereafter petitioned for and obtained from the trial court an order for defendant Primrock to show cause why he should not answer the above-quoted questions. At the sapie time the trial court granted defendant’s motion to dismiss, it quashed this order to show cause. Plaintiff assigns that action as error for a number of reasons which we shall consider in our following discussion.
A.R.S. § 12-2234 codifies the attorney-client privilege in this state and reads in pertinent part as follows:
“In a civil action an attorney shall not, without the consent of his client, be examined as to any communication made by the client to him, or his advice given thereon in the course of professional employment.”
The trial court in the first instance must determine whether or not the privilege surrounds the answers called for by the questions propounded. Clearly before testimony of the attorney can be considered privileged, the person who invokes the protection of the privilege must avow the existence of a professional relationship. In the instant case defendant Primrock, who-invoked the privilege for the protection of Mrs. Lietz, refused even to answer a question as to whether he was acting as attorney for her. Thus he refused to avow that he-was acting as attorney for Mrs. Lietz in regard to the matters about which plaintiff’s, counsel questioned him. In order to be permitted to invoke the privilege, defendant Primrock must avow that he was acting as. attorney for Mrs. Lietz. Before considering the matter further, the trial court, should have demanded an answer to this, question.
Some of the questions which defendant Primrock refused to answer obviously did not involve “any communication made by the client to him, or his advice-given thereon.” Answers to those questions were therefore not privileged. Others, did involve such matters and therefore,demanded answers which would ordinarily be barred by the privilege.
Plaintiff argues that the privilege-may be waived by a guardian ad litem. She cites in behalf of this proposition the well-reasoned case of Yancy v. Erman, Ohio Com.Pl.,
For these reasons the trial court should not have quashed plaintiff’s order to show ■cause.
Defendant Primrock claims this appeal should be dismissed and raises the question •of whether plaintiff appeals from an appeal-able order. We considered this question •on defendant Primrock’s motion to dismiss the appeal and determined the question .adversely to defendant Primrock’s contention when on February 13, 1957 we ordered ■“the appeal reinstated for determination on the merits.” We therefore decline to consider the question now.
Order of the trial court dismissing plaintiff’s third cause of action is hereby vacated with instructions to reinstate it. Further, the trial court’s order quashing plaintiff’s order to show cause is hereby vacated.