Category Archives

Think Before you Click: Good Email Habits to Help Keep Attorney-Client Communications Privileged

The attorney-client privilege protects communications sent between a lawyer and client.  But not all attorney-client communications are protected.  There are at least two common misunderstandings about when the privilege applies. First, the purpose of the communication must be to seek or obtain legal advice.  Thus, for example, an email is not privileged merely because counsel is copied on an ...

The attorney-client privilege protects communications sent between a lawyer and client.  But not all attorney-client communications are protected.  There are at least two common misunderstandings about when the privilege applies. ...

Not-So-Significant Others: When Does the Presence of a Third Party Waive the Attorney-Client Privilege?

Suppose you represent the defendant in a lawsuit, and he wants his long-time significant other to participate in communications with you about legal strategy—discussions that would be protected by the attorney-client privilege if they were between you and him alone. Would such participation vitiate the privilege? RCW 5.60.060(2)(a) provides that “[a]n attorney or counselor shall not, without the consent ...

Suppose you represent the defendant in a lawsuit, and he wants his long-time significant other to participate in communications with you about legal strategy—discussions that would be protected by the ...

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,[1] 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 ...

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,[1] the Court established a bright-line rule: ...

Privilege and the Public Records Act

To what extent does the attorney-client privilege[1] exempt from disclosure under Washington’s Public Records Act[2] billing statements submitted to government agencies by outside litigation counsel? The privilege protects “communications incident to the giving and receiving of legal advice, and incident to the representation of the client’s legal interests.”[3] This includes attorney-client communications about relevant facts. As the Washington Supreme ...

To what extent does the attorney-client privilege[1] exempt from disclosure under Washington’s Public Records Act[2] billing statements submitted to government agencies by outside litigation counsel? The privilege protects “communications incident ...

Upjohn In Washington: Does The Attorney-Client Privilege Protect Communications Between Government Counsel And Lower-Level Government Employees?

PART 2 In an earlier post, I explained that in Washington the attorney-client privilege held by corporations protects communications between corporate counsel and lower-level corporate employees, with some exceptions.  Does this also rule protect communications between counsel for government agencies and lower-level government employees?  Although there does not appear to be a published Washington case on point, the answer ...

PART 2 In an earlier post, I explained that in Washington the attorney-client privilege held by corporations protects communications between corporate counsel and lower-level corporate employees, with some exceptions.  Does ...

Communications between Counsel and Lower-Level Employees: Upjohn in Washington

PART 1 In Upjohn Co. v. United States, the United States Supreme Court held that the attorney-client privilege protected communications between counsel for Upjohn – who were investigating possible illegal activities by the company – and lower-level company employees.[1]  The Supreme Court rejected the Sixth Circuit Court of Appeals’ holding that under the so-called “control group” test, the privilege ...

PART 1 In Upjohn Co. v. United States, the United States Supreme Court held that the attorney-client privilege protected communications between counsel for Upjohn – who were investigating possible illegal ...