A Caution to Counsel: Under Washington Law the Attorney-Client Privilege Does Not Protect Communications with Your Client’s Former Employees
The Washington Supreme Court recently resolved an important question regarding the scope of the attorney-client privilege. In Newman v. Highland School Dist. No. 203, the Court established a bright-line rule: an attorney’s communications with a client’s former employees are not protected by the attorney-client privilege. This is true even if the discussion concerns something that happened when the former employee worked for the client.
In Newman, a Highland High School quarterback suffered a permanent brain injury at a football game the day after he allegedly sustained a head injury at football practice. The quarterback and his parents sued the school district (Highland) for negligence. Highland’s attorneys interviewed former Highland coaches and later represented them at their depositions.
Plaintiffs sought discovery of the communications between Highland’s attorneys and the former coaches from the time before Highland’s counsel represented them in connection with their depositions. Highland moved for a protective order to prevent that discovery, arguing that the attorney-client privilege prohibited discovery of its counsel’s communications with the former coaches. The trial court denied the motion, and the Supreme Court affirmed.
The Court began by recognizing the liberal discovery principles embodied in our civil justice system, noting the privileges are exceptions to the general rule favoring disclosure. Thus, the attorney-client privilege does not apply to all communications with an attorney; rather, it applies to communications made in confidence and in the context of an attorney-client relationship. The existence of the privilege depends on the circumstances in light of its overall purpose—to encourage full and frank communication between attorneys and their clients. As the Court in Newman emphasized, the scope of the privilege must be strictly limited to serving this purpose.
Of course, organizations can only act through their constituents and agents. Thus, it is settled Washington law that communications between a lawyer and a company’s principals, and possibly with its current lower-level employees, are privileged. Because the authority and responsibilities of people within an organization may vary depending on the legal matter at hand, a flexible, circumstance-driven approach is necessary in defining the scope of the privilege with respect to current corporate representatives.
But the principal-agent relationship between an organization and its representatives ends when their employment ends. Thus, according to the Supreme Court, the purpose behind the privilege no longer applies to shield communications between the organization’s counsel and its former employees. In the Court’s view, those former employees are no different than any other third-party fact witness and may freely be interviewed by either party.
This decision has critical implications for organizational clients and their attorneys who wish to speak with former employees. To the extent that key players are no longer employed by the organization, the absence of privilege may seriously hinder the fact-gathering process and the ability to effectively prosecute the organization’s claims or defenses.
The dissent articulated an approach that seems more practical and consistent with the purpose of the privilege: applying the privilege to protect postemployment communications concerning facts or events that arose during the former employee’s employment. This approach ties the privilege to the relevant subject matter, not to the current status of the witness. The organization holds the privilege, and the fact that an employee has left the organization should not render communications about what would otherwise be privileged (conduct and knowledge during the former employee’s employment) discoverable.
Under the current rule, however, organizations and their counsel now must consider how to protect communications with the organization’s former employees. One possible solution to consider is whether it would be permissible and appropriate to also represent the former employee in his or her individual capacity; if so, it is important to make sure the attorney-client relationship is in place before communicating with the former employee. Similarly, if the former employee is separately represented, it is important to explore a joint-defense agreement. Regardless, all organizations and their attorneys should take heed of this rule.