ATTORNEYCLIENTPRIVILEGEARTICLE
016
W
hether a party has impliedly waived the attorneyclient privilege poses a mixed question of law and
fact. Twin City Fire Insurance Co. v. Burke, 204 Ariz.
251, 254, 63 P.3d 282, 285 (2003). In State Farm v.
Lee, the Arizona Supreme Court adopted the following criteria,
referred to as the Hern test, in determining whether the attorneyclient privilege had been waived when a litigant’s mental state
was at issue:
(1) [The] assertion of the privilege was a result of some
affirmative act, such as filing suit [or raising an affirmative
defense], by the asserting party; (2) through this affirmative
act, the asserting party put the protected information at
issue by making it relevant to the case; and (3) application
of the privilege would have denied the opposing party
access to information vital to his defense.
199 Ariz. 52, 56, 13 P.3d 1169, 1173 (2000) (quoting Hern v. Rhay,
68 F.R.D. 575, 581 (E.D. Wash. 1975)).1
Under the Hern test, when a litigant advances “a subjective and
allegedly reasonable evaluation of the law ... that necessarily
incorporates [the advice of counsel],” confidential attorney-client
communications relevant to that evaluation are discoverable.
Id. at 58, 13 P.3d at 1175; see also Lee at 62, 13 P.3d at 1179
(explaining that no waiver results unless the party asserting
the privilege “has asserted some claim or defense, such as the
reasonableness of its evaluation of the law, which necessarily
includes the information received from counsel.”).
The Arizona Supreme Court emphasized in Lee, however, that
merely filing an action or denying an allegation does not waive
the privilege. Id. at 58, 62, 13 P.3d at 1175, 1179. Rather, the party
claiming the privilege must affirmatively “interject the issue of
advice of counsel into the litigation.” Id. at 62, 13, P.3d at 1179.
In addition, neither the “relevance or pragmatic importance
alone [of the information sought] will support a finding that the
attorney-client privilege has been waived.” See Twin City, 204
Ariz. at 256, 63 P.3d at 287; see also Lee, 199 Ariz. at 58, 13 P.3d
at 1175.
Recently, in Empire W. Title Agency, L.L.C. v. Talamante ex rel.
Cnty. of Maricopa, 234 Ariz. 497, 323 P.3d 1148 (2014), in an
opinion written by Justice Pelander, the Arizona Supreme Court
vacated a decision of the Arizona Court of Appeals, Division
One, which had found an implied waiver of the attorney-client
privilege in a contract case. Reversing the Court of Appeals, the
Supreme Court held that merely alleging the reasonableness of
one’s beliefs does not, in itself, waive the privilege; rather, the
litigant must advance a subjective evaluation or understanding
that incorporates the advice of counsel.