"An attorney cannot, without the consent of his client, be examined as to any communication made by his client to him or his advice given thereon in the course of his professional employment." Section 26-1-803(1), MCA. "A client cannot, except voluntarily, be examined as to any communication made by the client to the client's attorney or the advice given to the client by the attorney in the course of the attorney's professional employment." Section 26-1-803(2), MCA. Waiver is the "intentional or voluntary relinquishment of a known right or conduct which implies relinquishment of a known right." State v. Statczar, 228 Mont. 446, 453, 743 P.2d 606, 610 (1987). The burden of establishing waiver of privilege is on the party seeking to overcome the privilege. Statczar, 228 Mont. at 452, 743 P.2d at 610. The party must provide the Court with evidence of words or conduct to support waiver. Statczar, 228 Mont at 453, 743 P.2d at 611.
*Motions made in district court based on an alleged violation of the attorney-client privilege are reviewed under the standards of review related to the underlying motion. See State v. Tadewalt, 2010 MT 177, 357 Mont. 208, 237 P.3d 1273, and State v. Usrey, 2009 MT 227, 351 Mont. 341, 212 P.3d 279.
The Court has not defined a standard of review applicable to this section. However, evidentiary rulings are generally reviewed by the Court for an abuse of discretion. State v. Cameron, 2005 MT 32, ¶ 14, 326 Mont. 51, 106 P.3d 1189. A district court abuses its discretion if it acts arbitrarily or exceeds the bounds of reason resulting in substantial injustice. State v. Doyle, 2007 MT 125, ¶ 43, 337 Mont. 308, 160 P.3d 515.
*Please note State v. Campbell, 146 Mont. 251, 405 P.2d 978 (1965) held doctor-patient privilege is not available to a defendant during a criminal prosecution as described by § 26-1-805, MCA. Campbell, 146 Mont. at 260, 405 P.2d at 984. (Section 46-16-201, MCA, states "[t]he Montana Rules of Evidence and the statutory rules of evidence in civil actions are applicable also to criminal actions, except as otherwise provided." Section 26-1-805, MCA, states: "Except as provided in Rule 35, M. R. Civ. P., a licensed physician, surgeon, or dentist may not, without the consent of the patient, be examined in a civil action as to any information acquired in attending the patient that was necessary to enable the physician, surgeon, or dentist to prescribe or act for the patient. A communication described in § 45-9-104(7)[, MCA,] is not a privileged communication.").
Two statutes apply to marital privilege. Section 26-1-802, MCA, states: "Neither spouse may, without the consent of the other, testify during or after the marriage concerning any communication made by one to the other during their marriage. The privilege is restricted to communications made during the existence of the marriage relationship and does not extend to communications made prior to the marriage or to communications made after the marriage is dissolved. The privilege does not apply to a civil action or proceeding by one spouse against the other or to a criminal action or proceeding for a crime committed by one spouse against the other or against a child of either spouse." Section 46-16-212, MCA, states in part: "Neither spouse may testify to the communications or conversations between spouses that occur during their marriage unless: (a) consent of the defendant-spouse is obtained; (b) the defendant-spouse has been charged with an act of criminal violence against the other; or (c) the defendant-spouse has been charged with abuse, abandonment, or neglect of the other spouse or either spouse's children."
If a district court's ruling is based on an interpretation of a statute, the Court reviews the interpretation de novo and the application of the statute for an abuse of discretion. State v. Edwards, 2011 MT 210, ¶ 12, 361 Mont. 478, 260 P.3d 396. A district court abuses its discretion if it acts arbitrarily or exceeds the bounds of reason resulting in substantial injustice. State v. Doyle, 2007 MT 125, ¶ 43, 337 Mont. 308, 160 P.3d 515.