Wesp v. Everson

33 P.3d 191 (2001)

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Nature of the Case

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Facts

P sought damages in tort against her mother and step-father, Cheryl and Frank Brewer, based on allegations that Frank Brewer had sexually abused her. Criminal charges were also filed. Frank Brewer hired attorney Paul Prendergast and his associate, Janelle Oswald, to defend him on the criminal charges but not against the civil charges. Prendergast met mostly with Frank but also had joint meetings with Cheryl. Prendergast recommended that Frank take the plea deal being offered. One week after the criminal charges were brought the Brewers both prepared holographic wills. They wrote letters containing denials that Frank Brewer had done the acts of which P had accused him and provided explanations for their decisions to commit suicide. They related some of the information and advice about the criminal case that had been given by Prendergast at the joint meeting. After writing these letters, the Brewers committed suicide. The criminal charges were dismissed and D was substituted as the party-defendant in the civil suit. D hired Frank Brewer's criminal defense attorneys to represent both estates on P's claims. P gave notice that she intended to depose Prendergast. P deposed Prendergast and Oswald. Both refused to answer almost all questions, citing attorney-client privilege and the work product doctrine. Wesp endorsed both Prendergast and Oswald as witnesses at trial. The district court eventually held that: (1) the attorney-client privilege was waived by the Brewers' suicide letters; (2) the attorney-client privilege did not survive the death of Frank Brewer; (3) the testamentary exception to the attorney-client privilege may apply; (4) the privilege should be pierced because the exclusion at trial of testimony about communications between Frank Brewer and his criminal defense attorneys 'would work a manifest injustice'; and (5) it would not hold a pretrial hearing or make a pretrial determination about whether the D's attorneys, formerly Frank Brewer's criminal defense attorneys, could be called as witnesses at trial. D appealed claiming the trial court exceeded its jurisdiction in making the above rulings.