Hofmann v. Conder

712 P.2d 216, 1985 Utah LEXIS 977

• Court: Utah Supreme Court
• Decided: December 5, 1985
• Docket: 21020
• Status: Published

Opinions

PER CURIAM.

This matter comes before the Court in an extraordinary proceeding to prohibit the district court from compelling petitioner’s hospital nurse to testify about statements she overheard petitioner make to his attorney. The trial court made no findings of fact, although it prepared a memorandum decision. It appears from that decision that the controlling issue on which the trial court decided the matter was a legal one, namely, the standard determining when the presence of a third party during communications between a lawyer and client results in a waiver of the attorney-client privilege. We hold that the trial court erred in deciding that the attorney-client privilege established in U.C.A., 1953, § 78-24-8(2) and Rule 26 of the 1971 Rules of Evidence applies only if the presence of a third person, who overhears a confidential communication, is “necessary for ... urgent or lifesaving procedures.” The proper standard is whether the third person’s presence is reasonably necessary under the circumstances. McCormick on Evidence § 91, at 217-19 (E. Cleary 3d ed. 1984).

The record establishes that the presence of petitioner’s hospital nurse was reasonably necessary under the circumstances. The threshold question of whether the communication was intended to be confidential was not ruled on by the trial court, or at least the judge’s decision gives us no indication of his having made any factual findings on that question. Although there are ambiguities in the record, the totality of the circumstances surrounding petitioner’s communications to his attorney require the inference that the communication was intended to be confidential and within the protection of the statutory privilege. Immediately before the communication, petitioner had requested the presence of his attorney, he had stated that he would not make a statement to the police that night, and he had acquiesced in the request of his attorney that the police and hospital security personnel not only leave the room but also go far enough away to be out of earshot. Given his helpless physical condition and the intensive nature of the hospital care he had been receiving throughout the evening and during this incident, we cannot infer that petitioner intended his communications to his attorney to be public. Since the presence of the hospital nurse was reasonably necessary under all the circumstances, the privilege was not waived because of that presence.

The order of the trial court is vacated, and this matter is remanded for the entry of a protective order preventing the disclosure by the witness of confidential communications overheard by her.