Succession of Smith v. Kavanaugh, Pierson & Talley
513 So. 2d 1138, 1987 La. LEXIS 9852 (1987)
Rule of Law:
A litigant does not waive the attorney-client privilege merely by pleading a claim or defense to which the communications are relevant; waiver occurs only if the litigant commits to introducing the privileged communication into evidence at trial, creating a situation of unfairness known as anticipatory waiver.
Facts:
- Bilwood Smith died in 1968, and his widow employed the defendant law firm to represent her and the succession.
- Mrs. Smith served as executrix of the estate until 1970, when she renounced the succession.
- Years later, Mrs. Smith suspected the estate had been mishandled and retained a new attorney, Mr. White, for advice.
- Mrs. Smith consulted with Mr. White on February 28, 1984, and met with him several times over the following months.
- Mrs. Smith claimed that she was unaware of any negligence by her former lawyers until Mr. White informed her of it specifically on August 10, 1984.
- Mrs. Smith utilized the assistance of her accountant during some consultations with Mr. White.
Procedural Posture:
- Mrs. Smith filed a legal malpractice suit against her former attorneys in the district court.
- The defendants filed an exception of liberative prescription (statute of limitations), arguing the suit was filed too late.
- During discovery, defendants moved to depose Mrs. Smith's current attorney regarding his communications with her.
- The district court granted the defendants leave to depose the attorney regarding communications made on or before August 10, 1984.
- The Court of Appeal granted a writ and expanded the scope of the deposition to include all knowledge obtained between February and August 1984.
- Mrs. Smith applied to the Supreme Court of Louisiana for a supervisory writ to review the order.
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Issue:
Does a plaintiff waive the attorney-client privilege and create 'extraordinary circumstances' allowing the deposition of her attorney simply by pleading that she discovered the malpractice on a specific date based on information from that attorney?
Opinions:
Majority - Justice Dennis
No, the court held that pleading a defense regarding the timing of knowledge does not automatically waive the privilege or justify deposing opposing counsel. The Court rejected the 'fairness' balancing test (Hearn v. Rhay) often used in federal courts, arguing it undermines the legislative intent of the privilege. Instead, the Court adopted the 'anticipatory waiver' theory. A waiver only occurs if the privilege-holder commits to a course of action that forces the introduction of the privileged communication at trial to prove their case. If Mrs. Smith stipulates that she will not introduce the specific content of her conversation with Mr. White to prove when she discovered the malpractice, the privilege remains intact. However, if she intends to testify about what Mr. White told her to prove her claim, she waives the privilege to avoid 'garbling the truth.' Under Louisiana law, deposing an attorney of record is prohibited absent 'extraordinary circumstances.' These circumstances only exist if Mrs. Smith elects to use the privileged communications as evidence, thereby creating a special unfairness to the defendants.
Dissenting - Justice Watson
No, the court should not allow the deposition of the plaintiff's lawyer under any circumstances in this context. While there are equities on both sides, the sanctity of the attorney-client privilege is more important than any potential prejudice to the defendant.
Dissenting - Justice Marcus
Yes, the plaintiff waived the privilege by pleading 'contra non valentem' (delayed discovery) and testifying about the date of knowledge. By placing the date she acquired knowledge at issue, and because that knowledge came from her attorney, the information is vital to the defense. This constitutes 'extraordinary circumstances' sufficient to warrant the deposition.
Analysis:
This decision is significant because it establishes a high bar for 'at issue' waivers of attorney-client privilege in Louisiana, distinguishing the state from jurisdictions that use a more flexible balancing test. The Court emphasized that the privilege is a legislative creation designed to encourage full disclosure between client and counsel, which should not be set aside merely because the privileged information is relevant or vital to the opponent. The ruling creates a procedural mechanism where the plaintiff controls the waiver: they must choose between using the privileged evidence (and submitting to discovery) or maintaining the privilege (and potentially weakening their evidentiary presentation). This protects attorneys from being routinely deposed, preserving the adversarial nature of the legal system.
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