Bar Journal - September 1, 2000
PETITION OF THOMAS DEAN: New Hampshire Adopts Automatic Limited Waiver of Attorney-Client Privilege for Ineffective Assistance of Counsel Claims
By: Andrew W. Moeller
“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
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
“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
Simply stated, the ultimate purpose of the attorney-client
privilege is to encourage the full disclosure of information between client and
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
II. ARANSON V. SCHROEDER: THE IMPLIED WAIVER
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
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
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
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
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.
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
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.
1. Hunt v. Blackburn, 128 U.S. 464, 470
2. Petition of Thomas Dean, 142 N.H. 889 (1998).
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
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
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
17. Id. at 362.
18. Id. at
19. Id. at 361-62.
20. Id. at
trustees of the Woodland Road Realty Trust were apparently residents of
26. See Aranson, 140 N.H. at
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).
Aranson, 140 N.H. at 361.
30. Id. at
32. Id. at
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
42. Dean, 142 N.H. at
44. Dean’s trial counsel was reluctant to discuss
the case without first obtaining Dean’s express written waiver of his
45. See Dean, 142 N.H. at
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
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
55. Id. at 891.
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
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
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).
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
67. See In Re Gray, 176 Cal. Rptr. 721, 722
68. See Reed v. State, 640 So.2d 1094, 1097 (Fla.
69. See Peppers v. Balkcom, 130 S.E.2d 709, 711 (Ga.
71. See Logston v. State, 363 N.E.2d 975, 977 (Ind.
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
74. See State v. Walen, 563 N.W.2d 742, 753 (Minn.
75. See Veneri v. State, 474 S.W.2d 833, 840 (Mo.
76. See Petition of Gillham, 704 P.2d 1019, 1020 (Mont.
77. See State v. Taylor, 393 S.E.2d 801, 805 (N.C.
78. This is not an exhaustive list.
79. Hunt, 128 U.S. at
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.
82. See Dean, 142 N.H. at 891.