Hofmann v. Conder
1985 Utah LEXIS 977, 712 P. 2d 216 (1985)
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Rule of Law:
The attorney-client privilege is not waived by the presence of a third party if that third party's presence is reasonably necessary under the circumstances.
Facts:
- A petitioner, Hofmann, was receiving intensive care in a hospital and was in a helpless physical condition.
- A hospital nurse was present and attending to Hofmann.
- Hofmann requested the presence of his attorney.
- Hofmann stated that he would not make a statement to the police.
- At the attorney's request, police and hospital security left the room and moved out of earshot.
- Hofmann then made statements to his attorney while the nurse remained in the room.
- The nurse overheard the communications between Hofmann and his attorney.
Procedural Posture:
- In the district court, the opposing party sought to compel the testimony of petitioner Hofmann's hospital nurse regarding statements she overheard between Hofmann and his attorney.
- The district court ruled that the attorney-client privilege was waived due to the nurse's presence and ordered the nurse to testify.
- Hofmann, the petitioner, filed a petition for an extraordinary writ with the state's highest court, seeking to prohibit the district court from enforcing its order compelling the nurse's testimony.
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Issue:
Does the presence of a third party, whose attendance is reasonably necessary for the client's well-being, waive the attorney-client privilege for communications made between the attorney and client?
Opinions:
Majority - Per Curiam
No. The presence of a third party whose attendance is reasonably necessary under the circumstances does not waive the attorney-client privilege. The trial court applied an incorrect legal standard by requiring the third party's presence to be for 'urgent or lifesaving procedures.' The proper standard is whether the presence was 'reasonably necessary under the circumstances.' Given the petitioner's helpless physical condition and the intensive nature of the hospital care he was receiving, the nurse's presence was reasonably necessary. Furthermore, the totality of the circumstances—including the petitioner's request for an attorney and the exclusion of police from the room—requires the inference that the communication was intended to be confidential.
Dissenting - Zimmerman, J.
No, the presence of a reasonably necessary third party does not waive the privilege, but the privilege does not apply in this case because the petitioner failed to meet the threshold requirement of establishing that the communication was intended to be confidential. While the majority's 'reasonably necessary' standard for a third party's presence is correct, the petitioner bears the burden of proving that the communication was intended to be confidential. The record lacks direct evidence of the client's intent, such as an affidavit, and the circumstantial evidence is ambiguous. Because the petitioner failed to carry his burden to establish the communication was privileged, the trial court's ruling should be upheld.
Analysis:
This decision modernizes the attorney-client privilege by adopting a flexible 'reasonably necessary' standard for the presence of third parties, moving away from a stricter, more rigid test. It acknowledges the practical realities of situations, such as hospitalization, where a client may require both legal counsel and other essential assistance simultaneously. The ruling strengthens the privilege by protecting confidential communications in circumstances where a client cannot ensure absolute physical privacy, thereby ensuring continued access to counsel in difficult situations.
