“The rule which places the seal of secrecy upon communications between client and attorney is founded upon the necessity, in the interest and administration of justice, of the aid of persons having knowledge of the law and skilled in its practice, which assistance can only be safely and readily availed of when free from the consequences or the apprehension of disclosure.”¹

— Chief Justice Melville Fuller,
United States Supreme Court

INTRODUCTION

In Petition of Thomas Dean,²  a unanimous New Hampshire Supreme Court announced that “[t]he filing of a motion for ineffective assistance, as a matter of law, acts as a limited waiver of the attorney-client privilege.”³   The waiver, however, is not a sweeping one; the privilege is only extinguished to the extent relevant to the asserted ineffectiveness claim.⁴   The supreme court’s decree denotes the logical extension of the “implied waiver” test used to determine the scope of an “at-issue” attorney-client privilege waiver.⁵   This article discusses the evolution of the waiver doctrine by examining two principle cases – Aranson v. Schroeder and Petition of Thomas Dean.

Part I of this article canvasses the attorney-client privilege in an effort to put the forthcoming discussion into context.  Part II traces the roots of the “implied waiver” doctrine by examining Aranson v. Schroeder.  Part III analyzes Petition of Thomas Dean and explores the fairness and efficiency rationales on which the court based its decision.  Part IV compares the supreme court’s decision in Petition of Thomas Dean to those decisions emanating from other jurisdictions faced with the same issue.  The article concludes with Part V, a brief summary and some parting thoughts from the author.

I.     THE ATTORNEY-CLIENT PRIVILEGE

“The attorney-client privilege is the oldest of the privileges for confidential communications known to the common law.”⁶   Cases offering protection for the attorney-client privilege can be found dating back to 1577.⁷   Intended to facilitate open communication between an attorney and his or her client, the privilege serves an integral role in the advancement of the administration of justice.⁸   The rationale for the privilege has been described as such:

The privilege recognizes that sound legal advice or advocacy serves public ends and that such advice or advocacy depends upon the lawyer’s being fully informed by the client.  The lawyer-client privilege rests on the need for the advocate and counselor to know all that relates to the client’s reasons for seeking representation if the professional mission is to be carried out.⁹
 Simply stated, the ultimate purpose of the attorney-client privilege is to encourage the full disclosure of information between client and attorney.¹⁰
 Like most states, New Hampshire recognizes this common law rule preserving client confidences.¹¹   It has adopted the following general principle relating to the attorney-client privilege:

Where legal advice of any kind is sought from a professional legal advisor in his capacity as such, the communication relating to that purpose, made in confidence by the client, are at his instance permanently protected from disclosure by himself or by the legal adviser unless the protection is waived by the client or his legal representatives.¹²
 That said, it should be noted that the attorney-client privilege is not absolute.¹³   As the following sections illustrate, the privilege can, in certain situations, be pierced.

II.  ARANSON V. SCHROEDER:  THE IMPLIED WAIVER TEST
A. Background

On March 18, 1988, Mark and Kathy Aranson attended a real estate closing at Attorney Robert Schroeder’s office.¹⁵   At that meeting, the Aransons gained title to a condominium located in Conway, New Hampshire, from the Woodland Road Realty Trust.¹⁶   Schroeder represented the interests of the bank financing the Aranson’s real estate endeavor.¹⁷

Some eight months later, the Town of Conway sued the Aransons and the Woodland Road Realty Trust and its trustees, alleging that the condominium unit had been sold without a certificate of occupancy as required by town ordinance.¹⁸   The Woodland Road Realty Trust retained Schroeder and his law firm to defend the suit, while the Aransons elected to secure separate counsel.¹⁹   The Aransons subsequently filed a counterclaim against the Woodland Road Realty Trust and its trustees seeking, inter alia, rescission of the condominium purchase and treble damages under the New Hampshire Consumer Protection Act.²⁰ The Aransons’ counterclaim against the Woodland Road Realty Trust was severed from the proceedings instituted by the Town of Conway.²¹

The Town of Conway ultimately succeeded in its action, as did the Aransons in their counterclaim against Woodland Road Realty Trust.²²   The Aransons were awarded rescission of the purchase contract, with damages totaling $172,339.06, attorney’s fees of $53,042.75, and disbursements of $3,851.85.²³  The judgment was summarily affirmed by the supreme court on July 5, 1991.²⁴

Unsuccessful in their attempts to collect the New Hampshire judgment in Massachusetts,²⁵  the Aransons returned to the New Hampshire judiciary seeking additional relief.²⁶   They sued Schroeder and his law firm under the then-novel tort theory of malicious defense.²⁷   An ancillary issue centered around the Aransons’ litigation costs incurred in the first action.²⁸   Because the existence of a malicious defense cause of action in New Hampshire was an issue of first impression, the New Hampshire Superior Court (O’Neil, J.) transferred five legal questions to the supreme court, including the one with which this article is principally concerned: Did the superior court err in ordering the Aransons to produce attorney-client and work product materials?²⁹

B. Court Proceedings

At trial, Schroeder sought discovery of the Aransons’ records concerning their litigation costs incurred during the first trial.  The Aransons refused to produce the records, asserting that the requested documents were protected by the attorney-client privilege, or, alternatively, by the work product doctrine.³⁰   Schroeder countered by contending that the Aransons had impliedly waived the attorney-client privilege when they inserted the issue of their own litigation costs into the case,³¹  thus, the introduction of the concept of “implied waiver” in the “at-issue” context.  The superior court ordered the Aransons to produce all documents relevant to the case, then transferred the question and its ruling to the supreme court for comment.³²

Admitting that it had “not previously addressed the question [of] whether a party waives the attorney-client privilege by affirmatively pleading a claim that places at issue the subject matter of privileged communications,”³³  the court embarked on a brief journey through its prior privilege waiver jurisprudence.³⁴   In the end, a unanimous court³⁵  rejected Schroeder’s suggestion to adopt the waiver test articulated in Hearn v. Rhay.³⁶   It reasoned that the Hearn test neglected principles of fairness and minimized the importance of the attorney-client privilege.³⁷   Instead, the court took a somewhat different tack.

The court held that an “at-issue” waiver is limited “to circumstances in which the privilege-holder injects the privileged material itself into the case.”³⁸   When that occurs, and the information is actually required for resolution of the issue, the party holding the privilege must either waive it as to the necessary information or sacrifice its use in the presentation of the case.³⁹   Since the trial court had ordered the Aransons to produce “all documents . . . relative to the underlying case,”⁴⁰  the supreme court vacated and remanded, with instructions for the lower court to determine whether the Aransons had in fact injected privileged material into the case, and if so, whether such information was actually required for resolution of their claims.⁴¹   Until Petition of Thomas Dean, this was the test for identifying implied waiver of the attorney-client privilege in New Hampshire.

III.  PETITION OF THOMAS DEAN:  WAIVER AS  A MATTER OF LAW
A. Background

In April 1996, Thomas Dean was convicted by a jury of his peers of numerous crimes including, inter alia, criminal restraint, criminal threatening, kidnapping, and reckless conduct.⁴²   In April 1997, Dean moved for a new trial claiming that he had previously received ineffective assistance of counsel.⁴³   In order to properly respond to the motion, the State requested that the superior court (Perkins, J.) order Dean to relinquish his attorney-client privilege sothat it could interview Dean’s trial counsel.⁴⁴   The superior court acquiesced and ordered Dean to execute a limited waiver of his privilege.⁴⁵   Dean refused.⁴⁶

B. Court Proceedings

Because Dean would not execute the privilege waiver, the superior court refused to entertain his underlying ineffective assistance of counsel claim.⁴⁷   Dean sought relief by way of writs of prohibition and mandamus to the New Hampshire Supreme Court.⁴⁸   Both writs were denied in part, and the court vacated the order of the superior court to the extent it mandated Dean to execute a waiver.⁴⁹

The court began its analysis by examining the attorney-client privilege itself.⁵⁰   It recognized that the privilege is not absolute and may be waived either expressly or impliedly.⁵¹   Indeed, the court discussed its ruling in Aranson v. Schroeder and recalled the limitation it placed on “at issue” implied waivers.⁵²   However, rather than adhering to the implied waiver test, the court took a broader step.

Citing the interests of fairness and efficiency,⁵³  the supreme court held that “claims of ineffective assistance of counsel, whether brought in a motion for new trial or in a habeas corpus proceeding, constitute a waiver of the attorney-client privilege to the extent relevant to the ineffectiveness claim; the waiver is a limited one.”⁵⁴   That is, the filing of a motion for ineffective assistance of counsel now acts as a limited waiver of the attorney-client privilege as a matter of law.⁵⁵   The court’s reasoning was straightforward.

The court was persuaded by the impact an ineffective assistance of counsel claim has on an attorney.⁵⁶   In addition, the court relied on the fact that both the Rules of Professional Conduct⁵⁷  and the New Hampshire Rules of Evidence⁵⁸  contemplate the removal of the attorney-client privilege when the adequacy of an attorney’s representation is challenged.⁵⁹   Therefore, the court found it well within reason that a litigant claiming ineffective assistance of counsel automatically shed the cloak of privilege.  As the court explained: “Fairness dictates a limited waiver; efficiency dictates it occur automatically.”⁶⁰

C. Analysis
1. Fairness

The supreme court’s analysis inherently ponders fairness on two fronts.  First, the scope of the waiver is properly limited to communications immediately relevant to the ineffectiveness claim.  Permitting the revelation of privileged information not appurtenant to the claim would fly in the face of the attorney-client privilege’s purpose.  Further, any digression from the limited waiver rule would chill the attorney-client relationship and adversely impact an attorney’s ability to zealously represent his or her client.  Since the attorney-client relationship turns adversarial upon the filing of an ineffective assistance claim, principles of fairness dictate that unrelated confidential communications be preserved under the rubric of the attorney-client privilege.

Second, the court is clearly aware of the imprint a claim of ineffectiveness has on an attorney’s reputation.⁶¹   Such a claim challenges an attorney’s professional integrity and competence and could subject him or her to disciplinary action.⁶²   Without automatic provisions for a limited waiver of the attorney-client privilege, attorneys accused of providing ineffective counsel would continue to be hampered in their defense efforts.  Recognizing this, the supreme court has appropriately unencumbered attorneys facing ineffectiveness claims by instituting limited waiver as a matter of law.

2. Efficiency

Once the court decided that a limited waiver of the attorney-client privilege was mandated by the filing of an ineffective assistance of counsel claim, it followed a fortiori that the waiver occur automatically.  Trial counsel no longer needs to obtain an express written waiver from a former client who challenges the sufficiency of his or her representation.⁶³   The waiver occurs automatically, thus streamlining the discovery process and easing the burden on the judiciary by eliminating the need for motions to compel.

IV.  DECISIONS OF OTHER JURISDICTIONS

The New Hampshire Supreme Court noted that its decision in Petition of Thomas Dean was consistent with other jurisdictions.⁶⁴   Indeed it is.  In fact, the concept of an automatic, limited waiver of the attorney-client privilege is well established.⁶⁵   New Hampshire joins its sister states Arizona,⁶⁶  California,⁶⁷  Florida,⁶⁸  Georgia,⁶⁹  Illinois,⁷⁰  Indiana,⁷¹  Kentucky,⁷²  Maryland,⁷³  Minnesota,⁷⁴  Missouri,⁷⁵  Montana,⁷⁶  and North Carolina⁷⁷  in recognizing the rule.⁷⁸   Dean is also in line with the federal rule.

Back in 1888, the United States Supreme Court declared that “if the client has voluntarily waived the privilege, it cannot be insisted on to close the mouth of the attorney.”⁷⁹   Over the years, federal district⁸⁰  and circuit⁸¹  courts have consistently held that an individual voluntarily waives the attorney-client privilege when asserting an ineffective assistance of counsel claim.  New Hampshire’s rule is now no different.⁸²

V. CONCLUSION

The Petition of Thomas Dean decision marks the New Hampshire Supreme Court’s departure from the implied waiver test set forth in Aranson v. Schroeder as it relates to the filing of ineffective assistance of counsel claims.  A limited waiver of the attorney-client privilege now automatically attaches when such a claim is asserted.⁸³   Clients are protected by the limited nature of the waiver, while attorneys benefit from its automatic application.  The decision heeds the interests of both fairness and efficiency and brings New Hampshire in unison with the majority of jurisdictions recognizing the rule.

ENDNOTES

1. Hunt v. Blackburn, 128 U.S. 464, 470 (1888).
2. Petition of Thomas Dean, 142 N.H. 889 (1998).
3. Id. at 891.
4. See id. at 889.
5.  See Aranson v. Schroeder, 140 N.H. 359, 370 (1995).
6. Upjohn Co. v. United States, 449 U. S. 383, 389 (1981).
7. See Berd v. Lovelace, 21 Eng. Rep. 33 (1577); see also Dennis v. Codrington, 21 Eng. Rep. 53 (1580).
8. See Swidler & Berlin v. United States, 524 U.S. 399 (1998).
9. Upjohn, 449 U.S. at 389 (internal citations and quotation marks omitted).
10. See Fisher v. United States, 425 U.S. 391, 403 (1976).
11. See Shelley v. Landry, 97 N.H. 27, 31 (1951).
12. Riddle Spring Realty Co. v. State, 107 N.H. 271, 273 (1966) (citing 8 Wigmore, Evidence, §§ 2292, 2327-29, at 554, 634-41 (McNaughton rev. 1961)).
13. See McGranahan v. Dahar, 119 N.H. 758, 764 (1979).
14. The court has shed the protections of the client-client privilege in certain circumstances.  See, e.g., Nelson v. Lewis, 130 N.H. 106, 109 (1987) (waiver of privilege when patient puts own medical condition at issue in medical negligence action); McGranahan, 119 N.H. at 764 (waiver of privilege when there is a compelling need for the information and no other source is available).
15. See Aranson, 140 N.H. at 361.
16. Id.
17. Id. at 362.
18. Id. at 361.
19. Id. at 361-62.
20. Id. at 362.
21. Id.
22. Id.
23. Id.
24. Id.
25. The trustees of the Woodland Road Realty Trust were apparently residents of Massachusetts.
26. See Aranson, 140 N.H. at 362.
27. Id.
28. Although it is not clear from the opinion, presumably the Aransons’ prayer for relief requested that Schroeder pay their litigation costs from the first suit (the counterclaim).
29. See Aranson, 140 N.H. at 361.
30. Id. at 369.
31. Id.
32. Id. at 370.
33. Id.
34. Id.
35. See Aranson, 140 N.H. at 371.  Justice Thayer indeed filed a dissenting opinion in the case.  However, his dissent was limited to the majority’s recognition of the tort of malicious defense. Justice Thayer did not specifically dissent from the court’s ruling on the privilege issue.
36. See Aranson, 140 N.H. at 370; see also Hearn v. Rhay, 68 F.R.D. 574, 581 (E.D. Wash. 1975). The Hearn test sets forth three factors that, if satisfied, constitute an implied waiver: 1) assertion of the privilege was a result of some affirmative act, such as filing suit, by the asserting party; 2) the party asserting the privilege placed the protected information at issue; and 3) application of the privilege would deny the opposing party information vital to its case.
37. See Aranson, 140 N.H. at 370.
38. Id. (quoting Richard L. Marcus, The Perils of the Privilege: Waiver and the Litigator, 84 MICH. L. REV. 1605, 1633 (1986)) (quotation marks omitted).
39. See Aranson, 140 N.H. at 370 (quoting Remington Arms Co. v. Liberty Mutual Ins. Co., 142 F.R.D. 408, 415 (D.  Del 1992)).
40. Id.
41. Id.
42. Dean, 142 N.H. at 889.
43. Id.
44. Dean’s trial counsel was reluctant to discuss the case without first obtaining Dean’s express written waiver of his attorney-client privilege.
45. See Dean, 142 N.H. at 889.
46. Id.
47. Id.
48. See SUP. CT. R. 11 (identifying Supreme Court petition procedure).
49. While at first glance this appears to be a victory for Dean, as the reader will see, the order was only vacated because Dean’s waiver occurred automatically as a matter of law.  See Dean, 142 N.H. at 891. Therefore, it was unnecessary for Dean to affirmatively waive the privilege.
50. Dean, 142 N.H. at 889.
51. Id. (quoting Tasby v. United States, 504 F.2d 332, 336 (8th Cir. 1974), cert. denied, 419 U.S. 1125 (1975)).
52. Id. at 889 (quoting Aranson, 140 N.H. at 370).
53. Id. at 891.
54. Id. at 889.
55. Id. at 891.
56. Id.
57. N.H. R. PROF. CONDUCT 1.6 (b)(2) (lawyer may reveal client confidences to respond to allegations in any proceeding concerning the lawyer’s representation of the client).
58. See N.H. R. EVID. 502 (d)(3) (no attorney-client privilege exists as to a communication relevant to an issue involving breach of duty by the lawyer to his client).
59. See Dean, 142 N.H. at 891.
60. Id.
61. Id. (“Such claims challenge the lawyer’s representation of the client”).
62. See N.H. R. PROF. CONDUCT 1.1(a) (lawyer shall provide competent representation to a client).
63. See Dean, 142 N.H. at 891.
64. Id. at 889.
65. State v. Thomas, 599 A.2d 1171, 1177 (Md. 1992) (indicating that automatic waiver of attorney-client privilege upon a claim of ineffective assistance of counsel is a universally accepted rule), cert. denied, 508 U.S. 917 (1993).
66. See State v. Kruchten, 417 P.2d 510, 515 (Ariz. 1966), cert. denied, 385 U.S. 1043 (1967).
67. See In Re Gray, 176 Cal. Rptr. 721, 722 (1981).
68. See Reed v. State, 640 So.2d 1094, 1097 (Fla. 1994).
69. See Peppers v. Balkcom, 130 S.E.2d 709, 711 (Ga. 1963).
71. See Logston v. State, 363 N.E.2d 975, 977 (Ind. 1977).
72. See Gall v. Commonwealth, 702 S.W.2d 37, 44-45 (Ky. 1985), cert. denied, 478 U.S. 1010 (1986).
73. See Thomas, 599 A.2d at 1177-78.
74. See State v. Walen, 563 N.W.2d 742, 753 (Minn. 1997).
75. See Veneri v. State, 474 S.W.2d 833, 840 (Mo. 1971).
76. See Petition of Gillham, 704 P.2d 1019, 1020 (Mont. 1985).
77. See State v. Taylor, 393 S.E.2d 801, 805 (N.C. 1990).
78. This is not an exhaustive list.
79. Hunt, 128 U.S. at 470.
80. See, e.g., United States v. McDaniel, 995 F.Supp. 1095, 1096 (C.D. Cal. 1998); United States ex rel. Rhoads v. Barnett, 22 F.Supp.2d 765, 773 n.5 (N.D. Ill. 1998); Bullock v. Carver, 910 F.Supp. 551, 557 (D. Utah 1995); Davis v. Singletary, 853 F.Supp. 1492, 1544 (M.D. Fla. 1994), aff’d, 119 F.3d 1471 (11th Cir. 1997), cert. denied, _ U.S. _, 118 S.Ct. 1848 (1998); Turner v. Williams, 812 F.Supp. 1400, 1433 (E.D.Va. 1993), aff’d, 35 F.3d 872 (4th Cir. 1994), cert. denied, 514 U.S. 1017 (1995); United States v. Moody, 763 F.Supp. 589, 597 (M.D.Ga. 1991), aff’d, 977 F.2d 1420 (11th Cir. 1992), cert. denied, 507 U.S. 944 (1993).
81. See, e.g., McDowell v. Calderon, 197 F.3d 1253 (9th Cir. 1999); Crutchfield v. Wainwright, 803 F.2d 1103, 1120 (11th Cir. 1986) (Edmonson, J., concurring), cert. denied, 483 U.S. 1008 (1987); Tasby, 504 F.2d at 335; Laughner v. United States, 373 F.2d 326, 326 (5th Cir. 1967).
82. See Dean, 142 N.H. at 891.
83. Id.

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