Arizona Court of Appeals, Division One, holds that before conducting an in camera review to determine whether a document is protected from production by the attorney-client privilege, courts should (1) determine whether the party asserting the privilege has made a prima facie showing of privilege; (2) if so, determine whether the party challenging the privilege has made a prima facie showing of an exception to the privilege; and (3) if so, determine, as to each document, whether an in camera review is necessary and appropriate to resolve the dispute.

In a legal malpractice case, a father sued his former counsel, who represented the father regarding a successful petition to sever his parental rights. The father claimed that he suffered damages as a result of his former counsel’s malpractice, including the attorney’s fees and costs the father had to expend in an effort to set aside the severance order.

During discovery, the father’s former counsel sought the replacement counsel’s legal file related to the efforts to set aside the severance matter. The father objected on the ground of attorney-client privilege. Therefore, the father produced documents, including redacted versions, not protected by the privilege. The former counsel, however, continued to demand an unredacted copy of the entire file, arguing that the father implicitly waived the attorney-client privilege by suing her for malpractice. Specifically, the former counsel argued that the father put at issue the reasonableness of replacement counsel’s fees and conduct.

To resolve the discovery dispute, the court conducted an in camera review of the file, noting that such a review was proper in lieu of merely turning over the entire file to the former counsel. The court found that no portion of the file contained additional discoverable information concerning the billing issue. Thus, the court denied the former counsel’s request for production of the entire file. The former counsel petitioned for special action relief.

The Arizona Court of Appeals accepted jurisdiction and denied relief. Interpreting prior case law, the Court of Appeals held that before conducting an in camera review to resolve a privilege dispute, courts should (1) determine whether the party asserting the privilege has made a prima facie showing of privilege; (2) if so, determine whether the party challenging the privilege has made a prima facie showing of an exception to the privilege; and (3) if so, determine, as to each document, whether an in camera review is necessary and appropriate to resolve the dispute. The Court of Appeals determined that, by concluding that an in camera review of the entire file was appropriate to determine whether any of the documents were privileged, the superior court skipped steps one, two, and most of three. The Court of Appeals concluded that the superior court erred by invading the privilege to determine its existence.

Ultimately, the Court of Appeals applied the three-step test and found that the former counsel did not make a prima facie showing of an exception to the privilege. The Court of Appeals concluded, in part, that raising the issue of damages in a legal malpractice case does not automatically result in a waiver of the privilege. The Court of Appeals further concluded that the father did not assert a legal theory that relied on legal advice from his replacement counsel. Accordingly, the Court of Appeals denied the former counsel’s request for relief.

Judge Catlett authored the opinion, in which Judges McMurdie and Brown joined.

Disclosure: Osborn Maledon attorneys were involved in this case.

Posted by: Brandon T. Delgado