dissenting in part.
I respectfully dissent from the holding that the marital communication privilege was not waived.
The majority argues that while the privilege for lawyer-client communications was waived, under the very same circumstances there was no waiver of the privilege for husband-wife communications. The majority’s distinction between the two privileges is, in my view, unpersuasive.4
First, nothing in the Arizona statutes creating these evidentiary privileges suggests that the waiver rule should apply differently to the marital privilege, or indeed that the marital privilege is different in any material way from other evidentiary privileges. See A.R.S. § 12-2234 (attorney-client privilege); § 12-2232 (marital privilege); § 12-2233 (clergy-penitent privilege); § 12-2235 (physician-patient privilege). In fact, the language of these statutory privileges is substantially the same.
Nor have I found support in any Arizona judicial decisions for a hierarchy among privileges that supports the idea that facts justifying waiver of one privilege do not justify waiver of another privilege.
Nor do reasons of public policy require that we treat the privileges differently. With all respect, the majority’s argument elevating the marital privilege to a special status, beyond the reach of the waiver rule, is unconvincing.
First, the majority argues that professional ethical rules provide additional protections of confidential attorney-client communications. While ethical rales do address confidentiality, the majority’s argument does not show that the waiver rule should not apply to marital communications. Ethical rules do not require a lawyer to maintain confidentiality in the face of a court ruling that the privilege was waived and that the communication can be revealed. Consequently, the marital privilege is not more needy of judicial protection on the theory that no professional ethical rales apply.
Second, the majority analyzes the policy reasons for recognizing evidentiary privileges and concludes that the marital privilege should be upheld. But whether a marital privilege should be adopted is not the question here: the Arizona Legislature has settled that question by creating such a privilege by statute. The analysis the majority cites relates only to that question. See 8 John H. Wigmore, Evidence § 2285, at 527 (John T. McNaughton rev. 1961). Rather, the issue is whether an evidentiary privilege can be waived, and on that point there is universal agreement: marital and other privileges can be waived. As Wigmore says:
The spouse possessing the privilege may of course waive it. The waiver may be found ... in some act of testimony which in fairness places the person in a position not to object consistently to disclosure ...
Wigmore, supra at § 2340, p. 671.
Waiver applies when the interest served by the privilege, protecting the privacy of the marital relation, must in fairness yield to the search for the truth. A litigant cannot be allowed to obtain money damages by advancing a falsehood under the cloak of privilege. As the majority states, “The privilege may not be used as both a sword and a shield.” (Op. at 385, 909 P.2d at 452). On the other hand, it is difficult to conclude that sustaining the privilege here shields marital privacy in an important way because the underlying events occurred prior to the marriage and do not relate to the marriage.
The waiver arises in both the marital and the attorney-client communications in this case from the fact that by pursuing this *391action Ulibarri has placed her knowledge in issue. Whether the marital privilege is waived should be decided by the same standard the majority applies to the attorney-client privilege: “[Ulibarri] has certainly placed her memory in issue, and that was significant to our finding a limited waiver of the attorney-client privilege.” (Op. at 386, 909 P.2d at 453). The same analysis applies to physician-patient communications. When a plaintiff brings an action for personal injuries, the plaintiff impliedly waives the physician-patient privilege with respect to matters relating to the injuries. See Throop v. F.E. Young & Co., 94 Ariz. 146, 382 P.2d 560 (1963); Bain v. Superior Court, 148 Ariz. 331, 714 P.2d 824 (1986) (applying implied waiver to physician-patient and psychologist-patient privileges on ground that privilege cannot be used to unfairly place a claimant in a position to assert a claim contrary to the evidence).
Indeed, I find it anomalous that the majority applies waiver to the attorney-client communications, but not to the marital communications. Professor McCormick has argued that the marital privilege serves a different, lesser goal than other privileges and therefore that the privilege should be applied sparingly. McCormick argues that while the marital privilege protects privacy, it does not encourage marital communications. “What encourages [the parties] to fullest frankness is not the assurance of courtroom privilege, but the trust they place in the loyalty and discretion of each other.” McCormick on Evidence § 86, p. 309 (4th ed.1992). McCormick argues for the narrowing or elimination of the marital privilege:
[W]hile the danger of injustice from suppression of relevant proof is clear and certain, the probable benefits of the rule of privilege in encouraging marital confidences and wedded harmony is at best doubtful and marginal____
[Djelicacy and decorum, while worthy and deserving of protection, will not stand in the balance where there is a need for otherwise unobtainable evidence critical to the ascertainment of significant legal rights. This disproportion, together with the consideration that maintenance of privacy as a general objective is not critically impaired by its sacrifice in cases of particular need, argues for treating this privilege as a qualified one____
[I]t may someday be recognized that a communications privilege, however appropriate to professional relationships, is highly unsuited to the marital context____
Id. at p. 310-11. In contrast to the marital privilege, professional communications privileges do encourage communication. For example, the client is often expressly, indeed acutely, aware that his lawyer may not reveal the client’s confidences and is thereby encouraged to communicate frankly and fully with the lawyer. Thus, I find no persuasive basis for distinguishing testimonial privileges so that the marital privilege is exempt from waiver while other privileges are not.
The majority opinion cites but a single case for its view that no waiver occurs in these circumstances. However, I find Wadlington v. Sextet Mining Co., 878 S.W.2d 814 (Ky.App.1994) unpersuasive. In that case, implied waiver by bringing a lawsuit was not even an issue. Rather, the question was whether the scope of the marital communications privilege extended to a former spouse’s knowledge gained by simple observation— which of course, it does not. As a result, the court allowed the former spouse to testify to her observations of an injury, but marital communications were not allowed in evidence.
On the other hand, several courts have held that a marital privilege is waived when the spouse affirmatively places in issue the subject matter of the communication. For example, Prink v. Rockefeller Center, Inc., 48 N.Y.2d 309, 422 N.Y.S.2d 911, 398 N.E.2d 517 (1979) held that a wrongful death plaintiff could not withhold communications to her by the deceased spouse revealing his mental state when the issue was whether death was by accident or by suicide. After quoting Professor McCormick that the purpose of the privilege is to protect marital privacy, the court said:
Bearing in mind the purpose for which the privileges in question were created ..., the affirmative stance of plaintiff who *392claims ... to have sustained pecuniary injury as a result of defendants’ negligence, and the unfairness of permitting plaintiff to succeed by hiding behind the privileges asserted, we are satisfied on balance that the better policy is to hold the privileges waived____
To hold otherwise is to ignore the realities of the factual situation and to come perilously close to a taking of defendants’ property without due process of law.
422 N.Y.S.2d at 916, 398 N.E.2d at 522.
United States v. Premises Known as 281 Syosset Woodbury Road, 862 F.Supp. 847 (E.D.N.Y.1994) was a civil forfeiture action in which the court held the privilege unavailing. The spouse asserted an “innocent owner” defense which place in issue her knowledge of her husband’s drug transactions. A magistrate’s order applying the privilege was reversed as “clearly erroneous and contrary to law.” 862 F.Supp. at 855.
With all respect, the majority’s distinction of Prink and Syosset as directly involving the marital relationship while in the present case the marital relation was unrelated to the lawsuit is unpersuasive. The plaintiffs in those cases and here placed in issue a matter on which privileged communications cast essential light. Permitting the privilege to be invoked would be “far more likely to frustrate justice than to foster family peace.” Trammel v. United States, 445 U.S. 40, 52, 100 S.Ct. 906, 913, 63 L.Ed.2d 186 (1980). This is the controlling question in a waiver case, not whether or not the claim in the lawsuit directly involved the spouse.
The privilege applies to all confidential marital communications, whether about the marriage or not and the waiver question is the same whether the communications are concerned with the marriage itself or not.
In United States v. Benford, 457 F.Supp. 589 (E.D.Mieh.1978), the court held the privilege waived in a criminal case. The defendant husband proposed to give testimony suggesting that guns found in his residence were not his. The government sought the wife’s testimony. The court held the privilege would be waived if the husband were to testify as planned, explaining:
The facts indicate that the wife is in a unique position to confirm or contradict the defendant’s claims. If the jury is not permitted to hear the wife’s version of the facts, they may be misled into believing that no such testimony exists____
[Tjestimonial privileges, by their very nature, keep relevant and probative evidence from the jury. Because of this, their exercise should be limited to those situations in which the sought after benefit to the privileged party legitimately outweighs the cost to society in terms of judicial inefficiency____
[W]hen the defendant attempted to take advantage of his wife’s forced silence by testifying to things known only to himself and to her, he attempted to use the privilege for a purpose it was never meant to cover.
457 F.Supp. at 597.
All of these cases found waiver. The decisions of other courts are consistent with the basic principle that evidentiary privileges are strictly construed because they are in derogation of the truth. This view was expressed by the United States Supreme Court in narrowing the marital privilege in Trammel v. United States, 445 U.S. at 50, 100 S.Ct. at 912:
Testimonial exclusionary rules and privileges contravene the fundamental principle that “ ‘the public ... has a right to every man’s evidence.’ ” ... As such, they must be strictly construed and accepted “only to the very limited extent that permitting a refusal to testify or excluding relevant evidence has a public good transcending the normally predominant principle of utilizing all rational means for ascertaining truth.”
Accordingly, I would not grant extraordinary relief from the trial court’s decision that the lawyer-client and marital privileges do not apply.
. The majority finds waiver of the attorney-client privilege on two grounds. First, it says that a client waives the privilege when disclosing confidential communications to a third party. It also concludes that the conduct of the client “places her in such a position with reference to the evidence that to permit retention of the privilege would be unfair and inconsistent.” (Op. at 385, 909 P.2d at 452). The latter is the same ground on which a waiver of the marital privilege also rests.