Lynch v. Hamrick
2007 WL 1098574, 968 So.2d 11 (2007)
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Rule of Law:
The attorney-client privilege is waived when communications are made in the presence of a third party whose interests are adverse to the client. The privilege is also waived if the client, or the client's counsel, voluntarily discloses or elicits testimony regarding a significant part of the privileged communication during a legal proceeding.
Facts:
- Juanita Lynch, an elderly woman, owned a 40-acre tract of land.
- Her daughter, Rebecca Lynch Hamrick, drove Juanita to an attorney, Julie Wills, to have a new will drafted and to execute a deed conveying the 40-acre tract to Hamrick.
- Hamrick was present for at least part of the initial consultation between Juanita and Wills.
- To confirm Juanita's wishes without any influence, Wills later telephoned Juanita when she was alone and also met with her privately at a second appointment.
- Juanita executed a deed prepared by Wills that conveyed the 40-acre tract to Hamrick.
- A few days later, Juanita's son, Buddy Lynch, learned of the conveyance.
- Juanita later alleged that she was deceived into executing the deed, did not realize she had done so, and wanted the deed set aside.
Procedural Posture:
- Buddy Lynch, as attorney-in-fact for his mother Juanita Lynch, sued Rebecca Lynch Hamrick in an Alabama trial court to set aside a deed.
- Juanita Lynch intervened as a plaintiff in her own right.
- Hamrick noticed the deposition of Julie Wills, the attorney who prepared the deed.
- The Lynches moved to quash the deposition, asserting attorney-client privilege.
- The trial court ruled that the communications surrounding the deed's preparation were not privileged.
- Following a bench trial where Wills testified over objection, the court entered judgment for Hamrick, declining to set aside the deed.
- The trial court denied the Lynches' postjudgment motions.
- The Lynches, as appellants, appealed the trial court's judgment to the Supreme Court of Alabama.
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Issue:
Does the attorney-client privilege prevent an attorney from testifying about communications with a client when a third party with adverse interests was present during some of the communications, and when the client's own counsel elicits testimony about the private communications on cross-examination?
Opinions:
Majority - Justice See
No, the attorney-client privilege does not prevent the attorney's testimony because the privilege was waived. The court identified two independent grounds for waiver. First, the privilege does not apply to communications made in the presence of a third party unless that party shares a common legal interest with the client. Here, Hamrick's interest in receiving the property was adverse to Juanita's interest in retaining it for her own financial support and potential Medicaid eligibility, so Hamrick's presence defeated the privilege for any communications made while she was there. Second, Juanita waived the privilege for her private communications with Wills when her own attorneys elicited detailed testimony about those communications during the cross-examination of Wills. By voluntarily disclosing a significant part of the privileged matter, including having Wills read from her private notes, the Lynches waived the right to claim privilege over that subject matter. The court also noted that on two occasions, the Lynches' attorney expressly stated in court, 'We waive her privilege.' As an alternative basis, the court noted that Wills was an attesting witness to the deed, and under Alabama Rule of Evidence 502(d)(4), there is no privilege for communications concerning a client's intention or competence relevant to a document the attorney attests.
Analysis:
This decision provides a clear illustration of how attorney-client privilege can be waived, both implicitly and explicitly. It reinforces the 'third-party presence' rule by clarifying that a 'common interest' requires aligned legal goals, not merely being a party to the transaction. The case serves as a significant cautionary example for trial attorneys, demonstrating that probing into privileged matters on cross-examination, even to challenge a witness, can result in a waiver of that very privilege—a concept often referred to as 'opening the door.' The ruling underscores that privilege is not absolute and must be carefully guarded at all stages, from the initial client meeting to courtroom conduct.
