Krahenbuhl v. The Cottle Firm

2018 UT App 138
THE UTAH COURT OF APPEALS
JAMES K RAHENBUHL, K AYLEEN K RAHENBUHL,
AND ESTATE OF T ANNER K RAHENBUHL,
Appellants,
v.
THE C OTTLE F IRM , R OBERT W. C OTTLE, M AINOR EGLET
C OTTLE LLP, M ILLER T OONE PC, AND P. M ATTHEW M UIR ,
Appellees.
Opinion
No. 20160977-CA
Filed July 12, 2018
Third District Court, Salt Lake Department
The Honorable Robert P. Faust
No. 150906163
Karra J. Porter, Kristen C. Kiburtz, and Bruce M.
Pritchett, Attorneys for Appellants
Matthew N. Evans, Attorney for Appellees The
Cottle Firm, Robert W. Cottle, and Mainor Eglet
Cottle LLP
Gregory J. Sanders and Sarah C. Vaughn, Attorneys
for Appellees Miller Toone PC and P. Matthew Muir
JUDGE GREGORY K. O RME authored this Opinion, in which JUDGES
K ATE A. TOOMEY and DIANA H AGEN concurred.
ORME, Judge:
¶1 	This case involves alleged legal malpractice on the part of
the Appellees—two attorneys and the firms for which they
worked 	during 	the 	pendency 	of 	the 	underlying 	case
(collectively, Prior Counsel)—for failure to timely file several
product liability claims after Tanner Krahenbuhl was killed in a
motor home accident. James Krahenbuhl, Kayleen Krahenbuhl,

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and 	the 	Estate 	of 	Tanner 	Krahenbuhl 	(collectively, 	the
Krahenbuhls) appeal from the district court’s interlocutory order
denying 	their 	objection 	to 	Prior 	Counsel’s 	subpoena 	duces
tecum.1 The Krahenbuhls assert that the district court erred in
denying 	their 	objection 	because 	the 	subpoena 	violates 	the
attorney-client privilege. We agree and therefore reverse.
BACKGROUND
¶2 	In August 2009, Tanner Krahenbuhl was killed while
riding 	in 	a 	motor 	home 	that 	was 	traveling 	down 	a 	steep
mountain road near Powder Mountain Resort. Several witnesses
stated that the motor home was traveling at a high rate of speed
down the road and that its brakes were smoking before it
crashed. The Krahenbuhls hired Prior Counsel to pursue several
claims, including a negligence claim against Powder Mountain
on a theory of premises liability as well as product liability
claims against the manufacturer of the motor home’s brakes.
¶3 	Two 	years 	and 	one 	day 	after 	Tanner’s 	death, 	Prior
Counsel 	filed 	a 	one-count 	complaint 	for 	negligence 	against
Powder Mountain. Powder Mountain’s answer asserted that the
two-year statute of limitations barred the claim because it was
filed one day late. In November 2012, over a year after the
complaint was filed, Prior Counsel withdrew from the case. In
December 	2012, 	the 	Krahenbuhls 	retained 	a 	new 	attorney
(Successor Counsel). Thereafter, Powder Mountain moved for
summary judgment, arguing that the claim against it should be
dismissed because it was not timely filed. The district court
granted the motion.
1. 	Appeals 	from 	interlocutory 	orders 	are 	discretionary. 	We
granted the Krahenbuhls permission to appeal pursuant to rule
5(a) of the Utah Rules of Appellate Procedure.

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¶4 	In 	August 	2015, 	the 	Krahenbuhls, 	through 	Successor
Counsel, filed a legal malpractice action against Prior Counsel
for failing to timely file the lawsuit against Powder Mountain
and for failing to file any claims against the brake manufacturer.
In their answer, Prior Counsel asserted the affirmative defense of
comparative negligence, contending that the Krahenbuhls and
Successor Counsel were at least in part responsible for the
untimely filing of the Krahenbuhls’ claims. After Prior Counsel
moved 	for 	summary 	judgment, 	the 	parties 	stipulated 	to
dismissing the Krahenbuhls’ claims as to Prior Counsel’s failure
to timely file the negligence claim against Powder Mountain,
because the district court had determined in a subrogation
lawsuit that Powder Mountain did not owe a duty to the
Krahenbuhls.
¶5 	Discovery 	continued 	on 	the 	issue 	of 	whether 	Prior
Counsel committed legal malpractice for failing to assert the
product liability claims in an action filed before the expiration of
the statute of limitations. Prior Counsel filed a notice of issuance
of 	a 	subpoena 	duces 	tecum 	(the 	Subpoena), 	requesting 	all
documents 	in 	Successor 	Counsel’s 	file 	that 	related 	to 	the
underlying lawsuit. The Krahenbuhls objected, arguing that the
Subpoena 	sought 	materials 	protected 	by 	the 	attorney-client
privilege. 	In 	response, 	Prior 	Counsel 	filed 	a 	statement 	of
discovery issues, seeking an order requiring the Krahenbuhls to
comply 	with 	the 	Subpoena. 	Prior 	Counsel 	argued 	that 	the
Krahenbuhls 	waived 	the 	attorney-client 	privilege 	as 	to
communications between 	themselves and Successor 	Counsel
because the privileged communications were “at issue.” First,
citing a number of cases from other jurisdictions, Prior Counsel
argued that “suing one attorney for malpractice amounts to a
waiver of the privilege as to all attorneys involved in the
underlying 	litigation.” 	Second, 	they 	argued 	that 	Successor
Counsel was at fault because he “could have amended the
complaint to add the claims he now argues [Prior Counsel]
should 	have 	brought.” 	The 	district 	court 	agreed, 	without

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explanation, and ordered the Krahenbuhls to comply with the
Subpoena. This interlocutory appeal followed.
ISSUE AND STANDARD OF REVIEW
¶6 	The Krahenbuhls contend that the district court erred by
determining that they had waived the attorney-client privilege
as to communications between them and Successor Counsel and
by ordering them to comply with the Subpoena.2 “Whether a
party has waived the attorney-client privilege is an issue of law,
which we review for correctness[.]” Terry v. Bacon, 2011 UT App
432, ¶ 9, 269 P.3d 188 (quotation simplified).
ANALYSIS
¶7 	The Krahenbuhls assert that, under Doe v. Maret, 1999 UT
74, 	984 	P.2d 	980, 	overruled 	on 	other 	grounds 	by 	Munson 	v.
Chamberlain, 2007 UT 91, 173 P.3d 848, and Terry v. Bacon, 2011
UT App 432, 269 P.3d 188, they did not waive the attorney-client
privilege 	with 	respect 	to 	communications 	with 	Successor
Counsel 	simply 	by 	retaining 	Successor 	Counsel 	in 	the
underlying lawsuit and filing this legal malpractice action. We
agree.
¶8 	The attorney-client privilege, recognized in rule 504(b) of
the Utah Rules of Evidence and Utah Code section 78B-1-137(2),
“is intended to encourage candor between attorney and client
and promote the best possible representation of the client.”
2. The Krahenbuhls also contend, as they did below, that the
court erred in determining that they waived the attorney work
product privilege. Because we agree that the district court erred
in determining that they waived the attorney-client privilege, we
need not address this second issue.

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Maret, 1999 UT 74, ¶ 7 (quotation simplified). “Although the
legislature and courts have carefully guarded the integrity of the
privilege, we have long held that it can be waived by a client.”
Id. As hereafter explained, one such instance of waiver is the “at
issue” waiver.3
¶9 	Under Utah law, the “at issue” waiver is triggered when
the party seeking application of the attorney-client privilege
places “‘attorney-client communications at the heart of a case.’”4
3. The general exception to the attorney-client privilege that
applies in legal malpractice cases, see Utah R. Evid. 504(d)(3), is
not at issue in this appeal, because the dispute here concerns the
communications 	between 	the 	Krahenbuhls 	and 	Successor
Counsel, not the communications between the Krahenbuhls and
Prior Counsel, the defendants to this legal malpractice action.
4. In general, jurisdictions employ one of three variations of the
“at issue” waiver. We outlined each of these in Terry v. Bacon,
2011 UT App 432, 269 P.3d 188:
The 	first 	of 	these 	general 	approaches 	is 	the
“automatic waiver” rule, which provides that a
litigant automatically waives the privilege upon
assertion of a claim, counterclaim, or affirmative
defense that raises as an issue a matter to which
otherwise 	privileged 	material 	is 	relevant. 	The
second set of generalized approaches provides that
the privilege is waived only when the material to
be discovered is both relevant to the issues raised
in the case and either vital or necessary to the
opposing 	party’s 	defense 	of 	the 	case. 	Finally,
several 	courts 	have 	recently 	concluded 	that 	a
litigant waives the attorney-client privilege if, and
only if, the litigant directly puts the attorney’s
advice at issue in the litigation.
(continued…)

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Terry, 2011 UT App 432, ¶ 15 (quoting Maret, 1999 UT 74, ¶ 9).
More specifically, “[c]ommunications between the attorney and
client are ‘placed in issue where the client asserts a claim or
defense, 	and 	attempts 	to 	prove 	that 	claim 	or 	defense 	by
disclosing or describing an attorney client communication.’” Id.
¶ 16 (emphasis added) (quoting Rhone–Poulenc Rorer Inc. v. Home
Indem. Co., 32 F.3d 851, 863 (3d Cir. 1994)).
¶10 	Here, 	Prior 	Counsel 	assert 	a 	defense 	to 	which 	the
communications 	between 	the 	Krahenbuhls 	and 	Successor
Counsel are allegedly relevant. Because the Krahenbuhls, the
holder of the privilege, are not the party placing the privileged
communications at issue, they have not waived the privilege.
Notwithstanding, Prior Counsel assert that, pursuant to Lyon
(…continued)
Id. ¶ 16 n.1 (quotation simplified). In Terry, after outlining the
three different tests, we stated that, because we believed the
attorney-client privilege had been waived under each of the
tests, we did not need to decide when a matter is placed “at
issue.” Id.
Upon reflection, we conclude that our Supreme Court
already decided this question in Doe v. Maret, 1999 UT 74, 984
P.2d 980. There, the Court explained that “the fact that a lawyer
may have credible and important information gained through
communication with a client does not itself justify the setting
aside 	of 	the 	privilege 	(even 	when 	the 	lawyer 	is 	the 	only
non-party who may have that information).” Id. ¶ 10. Rather, a
party 	waives 	the 	attorney-client 	privilege 	when 	it 	places
attorney-client communications “at the heart of a case.” Id. ¶ 9.
In our view, the test that our Supreme Court articulated in Maret
is consistent with the third test described in Terry, which is
sometimes 	referred 	to 	as 	the 	Rhone–Poulenc 	test. 	See
Rhone–Poulenc Rorer Inc. v. Home Indem. Co., 32 F.3d 851, 863
(3d Cir. 1994).

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Financial Services, Inc. v. Vogler Law Firm, PC, No. 10-cv-565, 2011
WL 3880948 (S.D. Ill. Sept. 2, 2011), an unreported federal district
court case that applied the Rhone–Poulenc test to a dispute in a
legal malpractice case, the factual backdrop of the underlying
case here requires the conclusion that simply by bringing the
malpractice action the Krahenbuhls put their communications
with Successor Counsel at issue.
¶11 	In Lyon, the initial attorneys the plaintiff hired in the
underlying 	case 	allegedly 	committed 	misconduct 	during
discovery. Id. at *1. The plaintiff fired its initial attorneys and
hired successor counsel to handle the trial. Id. At trial, the jury
returned a large verdict against the plaintiff. Id. The plaintiff
then sued its initial attorneys for malpractice, id., and in doing
so, sought damages in the amount of the adverse verdict, id.
at *3. 	The 	initial 	attorneys 	subsequently 	filed 	a 	third-party
complaint against successor counsel, seeking contribution, and
sought the production of privileged communications between
the plaintiff and successor counsel. Id. at *1. The district court
concluded that the plaintiff waived the privilege because the
plaintiff sought damages that occurred after it hired successor
counsel, and it was unclear whether the initial attorneys or
successor counsel were responsible for the plaintiff’s losses. Id.
at *3.
¶12 	In addition to being nonbinding, Lyon is inapposite, and
we decline to follow it here. The Krahenbuhls are not seeking
damages that occurred outside of Prior Counsel’s representation
and therefore have not placed at issue their communications
with Successor Counsel.
¶13 	Prior Counsel also assert that Successor Counsel is at fault
for the preclusion of the Krahenbuhls’ product liability claims.
According 	to 	Prior 	Counsel, 	Successor 	Counsel 	could 	have
brought the claims by amending the complaint and alleging that
the discovery rule tolled the statute of limitations. Prior Counsel

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assert that “Successor Counsel’s underlying representation of the
Krahenbuhls 	was 	likely 	an 	intervening 	cause 	of 	the
Krahenbuhls’ alleged injury” because Successor Counsel failed
to argue that Powder Mountain did not specifically plead its
statute of limitations defense. According to Prior Counsel, a
determination 	that 	the 	Krahenbuhls 	did 	not 	waive 	the
attorney-client privilege would allow them to use the privilege
both as a sword and a shield, which we have said a party cannot
do. See Terry v. Bacon, 2011 UT App 432, ¶ 17, 269 P.3d 188. But
the Krahenbuhls have not attempted to rely on any privileged
communications. Only the client can waive the attorney-client
privilege, see Moler v. CW Mgmt. Corp., 2008 UT 46, ¶ 17, 190 P.3d
1250, including under the at-issue rationale, and here it is Prior
Counsel, not the Krahenbuhls, who have attempted to place the
Krahenbuhls’ 	privileged 	communications 	with 	Successor
Counsel at issue.
¶14 	Prior Counsel additionally argue that a plaintiff filing a
legal malpractice claim against one attorney in an underlying
lawsuit 	waives 	the 	attorney-client 	privilege 	as 	to 	all 	the
attorneys 	who 	represented 	the 	plaintiff 	in 	the 	underlying
lawsuit. We find this argument unavailing. In support of their
assertion, Prior Counsel cite cases in which courts have required
the production of the successor counsel’s files. Typical of these—
and the case upon which Prior Counsel primarily relies—is
Pappas v. Holloway, 787 P.2d 30 (Wash. 1990) (en banc). But in
Pappas, the court applied the second variation, supra note 4, of
the at-issue waiver, see 787 P.2d at 36 (stating that it was
applying the second variation of the at-issue waiver, also known
as the Hearn test), which presents a lower bar for parties seeking
the production of privileged communications. We cannot adopt
the wide-sweeping rule that Prior Counsel advocates, because it
is at odds with the rule our Supreme Court articulated in Maret.
See 	1999 	UT 	74, 	¶ 	9 	(stating 	that 	a 	party 	waives 	the
attorney-client 	privilege 	“by 	placing 	attorney-client
communications at the heart of a case”).

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¶15 	In sum, we conclude that requiring the Krahenbuhls to
comply with the Subpoena is inconsistent with the principles
outlined in Maret and Terry, and therefore the court erred in
determining that the Krahenbuhls waived the attorney-client
privilege.5
CONCLUSION
¶16 	We conclude that the district court erred in determining
that the Krahenbuhls waived the attorney-client privilege as to
communications between them and Successor Counsel and by
ordering them to comply with the Subpoena. We therefore
reverse the order denying the Krahenbuhls’ objection to the
Subpoena and remand for such further proceedings, consistent
with this opinion, as may now be in order.
5. Prior Counsel’s brief includes the following request: “Should
this court find no waiver exists, defendant should be permitted
to re-argue waiver, pending additional discovery.” They also
assert that “the Krahenbuhls should be required to produce a
privilege 	log 	to 	allow 	[Prior 	Counsel] 	to 	evaluate 	[the
Krahenbuhls’] 	privilege 	claims.” 	We 	do 	not 	address 	these
matters because the district court is in the better position to do
so, and their resolution is unnecessary to this appeal. See Summit
Water Distrib. Co. v. Summit County, 2005 UT 73, ¶ 50, 123 P.3d
437 (“Our settled policy is to avoid giving advisory opinions in
regard to issues unnecessary to the resolution of the claims
before us.”).