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Twin City Fire Insurance Company v. Burke2/18/2003
olicy, General Star could use that as evidence to show it acted reasonably. Pragmatically also, such information would have great value to General Star for, in the view of jurors. it would serve to impeach the credibility of Twin Star's theory of the case. But neither this type of relevance nor pragmatic importance alone will support a finding that the attorney-client privilege has been waived under Lee. If so, the privilege would have little meaning. General Star has easy access to expert opinion on claim evaluation. The evaluation of Twin City's counsel is not vital to General Star's defense. Nor would denial of access to evaluation by Twin City's counsel make it impossible for the jury to fairly determine the propriety of General Star's conduct.
Lee held that " he waiver exists only when the privilege holder raises and defends on the theory that its mental state was based on its evaluation of the law and the facts show that evaluation included and was informed by advice from legal counsel." Id. at 65 33 n.7, 13 P.3d at 1182 33 n.7. Such a theory injects the privileged information as an issue in the case and under some circumstances makes it vital that the other party have access to the information to pursue or defend a claim. Twin City has done nothing to make counsel's advice "relevant to the legal significance of[General Star's] conduct." Id. at 64 ,13 P.3 at 1181 (quoting RESTATEMENT § 80(1)(a)). On this record, we conclude that Twin City has not impliedly waived the attorney-client privilege.
CONCLUSION
Thus, we hold that the trial judge erred in applying Lee to this case and concluding that Twin City waived its attorney-client privilege. Consequently, we grant relief and vacate that portion of the judge's order granting the motion to compel with respect to matters that are protected by the attorney-client privilege. We direct that the case proceed in a manner consistent with this opinion.
CONCURRING:
RUTH V. McGREGOR, Vice Chief Justice
WILLIAM E. DRUKE, Judge
KENNETH LEE, Judge
THOMAS A. ZLAKET, Justice (retired)
Due to vacancies on the court, pursuant to article VI, § 3 of the Arizona Constitution, the Honorable William E. Druke, Judge of the Arizona Court of Appeals, and the Honorable Kenneth Lee, Judge of the Superior Court in Pima County, were designated to sit on this case.
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