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Evidence: Attorney Client Privilege & Work Product Doctrine

Accomazzo v. Kemp, 678 Ariz. Adv. Rep. 23 (App. Div. I, January 21, 2014) (J. Swann)

CHALLENGING ENFORCEABILITY OF PRENUPTIAL AGREEMENT DOES NOT NECESSARILY CONSTITUTE WAIVER OF ATTORNEY CLIENT PRIVILEGE WITH RESPECT TO THE ATTORNEY WHO ADVISED THE SPOUSE CHALLENGING THE AGREEMENT NOR DOES THE PRESENCE OF SPOUSE'S PARENTS DURING COMMUNICATION WITH ATTORNEY NECESSARILY CONSTITUTE A WAIVER

Husband and wife were each separately represented by counsel when they executed a prenuptial agreement. Fourteen years later wife sought a dissolution of the marriage. Husband and wife each filed motions for partial summary judgment regarding the enforceability of the prenuptial agreement. Wife claimed it was unenforceable due to breach of fiduciary duty, failure of consideration, lack of voluntariness, and unconscionability, all based on husband's alleged failure to fully disclose his income and assets during the agreement's negotiation. She further claimed the agreement was unenforceable because it was unintelligible, husband had materially breached it, and it was effectively a postnuptial agreement. The trial court denied both husband and wife's motions and scheduled an evidentiary hearing to determine enforceability. Each spouse then sought to depose the other spouse's attorney during negotiation of the agreement. The trial court ruled wife had waived the attorney client privilege by putting the communications at issue in the case and because her parents were present during the communications. Wife brought this special action.

The Arizona Court of Appeals granted jurisdiction and held "the attorney-client privilege is not automatically waived when a party challenges the enforceability of an agreement that was the subject of an attorney-client consultation." In so doing the court recognized that generally speaking a party cannot use privileged information as a sword while using the privilege as a shield. However, relevancy alone does not equate with putting the communication at issue. Here, while the wife did allege lack of disclosure of information and duress during negotiations and signing, she did not use privileged communications in aid of her position. If she had raised a question of the reasonableness of her attorney's evaluation of the law or even took the position she acted based upon the lawyer's advice a waiver would likely exist, but that was not the case here.

Finally, the court found that while a client may waive the privilege by disclosing confidential communications to a third party or having a third party present during the communications, the client's intent determines waiver in the latter situation. There must be evidence the client understood or intended the communications would not be privileged by allowing a third party to be present during the communications in order for there to be a waiver. It is presumed that a party intends communications with an attorney in the presence of a third party to remain confidential barring evidence to the contrary. The court found no such evidence here.

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