dissenting.
¶54 I agree with Justice Martone’s dissent. I write separately to emphasize the degree to which today’s opinion undermines the attorney-client privilege. Although the majority attempts to limit the scope of its holding, at best the opinion introduces intolerable uncertainty into the question whether attorneys and their clients can regard communications as privileged.
¶ 55 The impact on privileged communications derives from the majority’s broad description of the conditions under which a litigant waives the attorney-client privilege. As the majority explains, “[I]n cases such as this in which the litigant claiming the privilege relies on and advances as a claim or defense a subjective and allegedly reasonable evaluation of the law — but an evaluation that necessarily incorporates what the litigant learned from its lawyer — the communication is discoverable and admissible.” Supra ¶ 15. Or, put another way, “When a litigant seeks to establish its mental state by asserting that it acted after investigating the law and reaching a well-founded belief that the law permitted the action it took, then the extent of its investigation and the basis for its subjective evaluation are called into question.” Supra ¶23. If that is the test for waiver of this important privilege, I cannot agree that no waiver occurs in the examples set out in footnote 7 of the majority opinion. In both, the defendant, in denying the plaintiffs allegations, necessarily relies upon its knowledge that includes advice from its lawyer.
¶ 56 But today’s holding, which applies not only to plaintiffs’ bad faith claim, but also to the counts alleging fraud, supra ¶ 3, will sweep even more broadly. If a defendant can waive the privilege simply by relying upon knowledge gained, in part, through advice of counsel to deny a plaintiffs allegations, any plaintiff advancing a subjective claim will run the risk of waiving the privilege simply by filing an action. A plaintiff who advances a subjective claim seemingly will waive the privilege if, before asserting his claim, he consults with his lawyer and uses the knowledge obtained to reasonably evaluate his claim. Because many, perhaps most, potential litigants do not know the *70elements of claims they seek to assert before consulting a lawyer, and do not understand whether they possess sufficient basis to assert a claim, a plaintiffs decision to proceed with an action necessarily relies upon the advice of counsel.' For instance, these plaintiffs presumably consulted with their attorneys before bringing this action for bad faith, which involves the subjective element described by the majority. If so, their reliance on their “subjective and allegedly reasonable evaluation of the law — but an evaluation that necessarily incorporates what the litigant learned from its lawyer [renders] the communication ... discoverable and admissible.” Supra ¶ 15. Can the defendant now discover otherwise privileged communications to determine whether the plaintiffs in fact had a basis for making their claim? Similarly, a plaintiff in a personal injury action who claims subjective damages for pain and suffering could be found to have waived the attorney-client privilege if the knowledge on which she bases her claim and right to bring it derive, at least in part, from communications with counsel. If bringing the claim does not itself waive the privilege, is an assertion from the defendant that the plaintiff lacked a good faith basis for bringing the claim sufficient to waive the privilege? And if the defendant’s assertion alone does not waive the privilege, surely, in the words of the majority opinion, the plaintiffs denial of the argument that he lacked a good faith basis for his claims constitutes an attempt “to establish [his] mental state by asserting that [he] acted after investigating the law and reaching a well-founded belief that the law permitted the action [he] took.... ” Supra ¶ 23. As I understand the language of the majority, today’s opinion permits finding waiver in either situation described above, and will permit waiver in many other situations not yet foreseen.
¶ 57 The majority suggests, but does not say, that its holding' depends upon the fact that this litigation involves a first-party insurance claim. Supra note 3. Perhaps an argument can be made that an insurer cannot expect communications with its attorneys to remain privileged when it considers an issue on which it must give the interests of another party, its insured, consideration equal to that it gives its own interest. See, e.g., Zilisch v. State Farm Mut. Auto. Ins. Co., 196 Ariz. 234, 235-36, 995 P.2d 276, 278-79 (2000). As discussed above, however, the majority’s opinion addresses a much broader context.
¶ 58 Today we make the scope of the attorney-client privilege uncertain, at best, and abrogate the privilege in many instances, at worst. We do so without any real need to take such a drastic step. As both the majority, supra ¶¶ 35, 36, and Justice Martone, supra ¶ 48, point out, State Farm faced a difficult task in responding to plaintiffs’ bad faith claim without asserting it relied upon advice of counsel. Had this litigation continued its natural course, State Farm might have chosen to waive its privilege rather than face the difficulty raised by defending without reference to legal advice. But the decision of which defense to advance was for State Farm, which was justified in assuming that unless and until it put its reliance on counsel at issue, its earlier communications with counsel would remain privileged.
¶ 59 To permit plaintiffs to discover communications that they quite probably do not need to establish their claim, we have placed in jeopardy countless attorney-client communications, which litigants rightly anticipated would be confidential. We also have introduced needless uncertainty into the attorney-client relationship, and have discouraged persons from seeking needed legal advice, which they cannot assume will remain confidential. Because I believe the result of today’s opinion will be to cause extensive, unjustified waiver of the attorney-client privilege, I respectfully dissent.