Thomas v. Harrison ( 1981 )

THOMAS, Justice,

concurring in part and dissenting in part.

I am persuaded that whether the statements made to and the product of the medical review panel are subject to discovery is a matter best left to the exercise of discretion by the trial court. Since I can find no abuse of that discretion in this instance, I concur in the aspect of the majority opinion holding that those matters are protected as work product of the attorney and did not have to be disclosed.

I agree most firmly, however, with the views set forth by Chief Justice Rose in his dissenting opinion with respect to the privilege which the majority opinion extends to the statements made to the agent of the insurance company. I therefore join in that aspect of his dissenting opinion, adding these brief comments of my own.

Truth and justice are the Siamese twins of the legal craft. They are inseparable and wholly intertwined. One cannot survive without the other, and any deleterious impact upon either serves to affect the health and well-being of both.

The only effect that I am able to perceive of extending the attorney-client privilege to statements made by an insured to adjustors or other representatives of his insurance company, which are required to be made by the cooperation clause in the insurance policy, is that the extension of the privilege inhibits the search for the truth. To the extent that the truth remains obscured by virtue of such rule, justice indubitably suffers. The attorney-client privilege in its historical development does not appear to be designed to reach this situation. The history with respect to the development of the privilege seems to relate primarily to the protection of the right of the individual not to be a witness against himself. In modern civil cases, however, he cannot claim such a right, and as McCormick remarks:

“ * * * Now, however, when the party knows that he himself can be called as a witness by the adversary, the danger from disclosure to counsel is less important.” McCormick on Evidence, § 87, p. 176 (West Publishing Co. 1972).

Given this state of jurisprudence, while our tradition undoubtedly will continue to protect the privilege between clients and attorneys, I see no purpose in extending it beyond that particular relationship even by legal fiction.

To me it seems more important that we should be searching for the truth in instances such as this rather than structuring an inhibition to that search for truth. It is clear that protecting the statements made by an insured to his insurance company or its agents or representatives, under the guise of the attorney-client privilege, will assist those who are so inclined to adjust their version of operative events to their advantage, without regard to what they might have told their insurance carrier. On the other hand, to those who are not so inclined it cannot possibly make any difference that this tool also is available in identifying the truth that leads to a just result.