The Pagliara divorce has given us much to talk about. In “Sex, Lies, (Drugs) and Videotape … and Malicious Prosecution”, we discussed the dismissal of Husband’s malicious prosecution claims against Wife’s former divorce lawyers. Undeterred, he proceeded against Wife’s attorneys for intentional and/or negligent infliction of emotional distress based on their advice to Wife to pursue criminal complaints against Husband to gain leverage in the divorce. (She had signed a prenuptial agreement.)
Husband’s persistent attorneys sought discovery from Wife’s former attorneys about advice concerning the criminal complaints. Somehow, they learned that Wife brought a friend (BFF) to the meetings with her attorneys. Notwithstanding her attorneys’ warnings that the conversations may not be privileged if BFF stayed, Wife insisted that BFF stay.
In Pagliara v. Pagliara, Case No. M2019-01397-COA-R9-CV, the Tennessee Court of Appeals affirmed the trial court’s determination that the attorney-client privilege, as to the conversations with Wife’s former divorce counsel, had been waived by BFF’s presence.
Wife admitted that the conversations in the presence of BFF were not privileged (She could not contend that confidentiality was intended given the circumstance of a third party’s presence and the attorneys’ warnings). Wife also could not sustain the argument that BFF was an agent such that the privilege had not been waived by her presence. See “You’re Not My Client … But the Attorney-Client Privilege Still Applies.”
Wife maintained that the privilege was waived only as to the meetings where BFF was present, but she could not remember which meetings included BFF.
Husband responded that the Court should apply the “subject matter waiver” doctrine based on Wife’s waiver of the attorney-client privilege. Husband asserted Illinois law as persuasive in support of the argument that waiver of any privileged conversations constituted a waiver as to all conversations on that same subject matter. The trial court agreed.
The appellate court held that Wife had the burden of proof to establish the privilege. Wife had not offered any evidence as to which meetings included BFF. Given Wife’s failure to establish the attorney-client privilege, the appellate court affirmed the discovery of communications between Wife and her former counsel. In doing so, the court stated:
“In most cases a privilege protects an individual, who alone possesses the facts needed to support the existence of the privilege. Accordingly, it is generally held that the party asserting a privilege has the burden of proving that the privilege is applicable.” NEIL P. COHEN, ET AL., TENNESSEE LAW OF EVIDENCE § 5.01(d) (5th ed. 2005); see In re Columbia/HCA Healthcare Corp., 192 F.R.D. 575, 577 (M.D. Tenn. 2000); Bryan [v. State], 848 S.W.2d [72,] 80 [(Tenn. Crim. App. 1992)] (holding the party asserting attorney-client privilege has the burden of establishing its existence). To successfully invoke the attorney-client privilege, the party asserting the privilege is obligated to establish the communications were made pursuant to the attorney-client relationship and with the intention that the communications remain confidential. Bryan, 848 S.W.2d at 80; see also Smith County Educ. Ass’n v. Anderson, 676 S.W.2d 328, 333 (Tenn. 1984).
State ex rel. Flowers v. Tenn. Trucking Ass’n Self Ins. Grp. Tr., 209 S.W.3d 602, 616 (Tenn. Ct. App. 2006).
Given that Wife had failed to establish the privilege, the court did not address Husband’s argument of subject matter waiver.
Moral of the Story: Take the BFF to the pub, not to a member of the bar, for a confidential chat.