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 is very likely yes.

Washington law is clear that the attorney-client privilege, codified at RCW 5.60.060(2), protects communications between the legal advisors of government entities and the entities’ officers and agents.[1]  And two unpublished Washington cases strongly suggest that Upjohn protects communications between counsel and lower-level government employees.

In Fossos v. Matheson, the Court of Appeals relied on Upjohn in holding that the attorney-client privilege protected communications between “different deputy AGs, two different legislative offices (Senate and House of Representatives), and three members of three different executive offices (Actuary, Office of Financial Management, and Department of Retirement Systems).”[2]  Upjohn, the court explained, “held that [the attorney-client] privilege may apply to multiple communications between mid level and lower level employees and an attorney advising those at a higher corporate level.”[3]  And in Tharp v. University of Washington, the Court of Appeals affirmed the trial court’s denial of the plaintiff’s motion to compel email communications between an assistant attorney general and various University of Washington employees.[4]  The court explained:

[T]he United States Supreme Court has held that the attorney client privilege may apply to communications between an attorney and multiple lower level employees in an organization when those communications are made in order to secure legal advice from counsel.  Here the communications sought were between the University’s employees and its counsel and were made after [the plaintiff] hired an attorney, suggesting the possibility of impending litigation.[5]

Soter v. Cowles Publishing Co.[6] also provides some support for applying the Upjohn rationale to government agencies.  Soter arose out of an incident in which an elementary school student with a severe peanut allergy died after eating part of a school-supplied peanut butter cookie while on a school field trip.[7]  Anticipating a possible wrongful death claim, the school district’s superintendent contacted the district’s longtime outside counsel, who subsequently communicated with two teachers and a volunteer nurse chaperone who had been on the trip.[8]  The attorneys told the teachers and chaperone that the attorneys were representing them to the extent the school district’s insurance policy covered them, and assured them that all communications with them would be protected by the attorney-client privilege.  Id.  The teachers and chaperone were expected to be defendants in any lawsuit arising out of the student’s death, and “believed they were clients” of the school district’s attorneys.[9]  In the end, no lawsuit was filed because the school district reached a settlement with the student’s parents and estate.[10]  On these facts, the Washington State Supreme Court held that the attorney-client privilege protected counsel’s communications with the teachers and chaperone.[11]  However, Soter is not directly on point, because it involved communications with lower-level employees who were expected to be parties to a wrongful death lawsuit and believed they were represented by the school district’s counsel.

The above-cited authorities strongly suggest that Upjohn applies to communications between counsel for a government agency and lower-level employees of the agency, and there is no reason to adopt a different rule in the government context than in the corporate context.  Finally, although Youngs v. PeaceHealth[12] (discussed in my initial post on this subject) shows that the attorney-client privilege may in some contexts be limited by other rules, there is no reason any privileges or rules uniquely applicable to governmental entities should limit Upjohn in this situation.

–Duncan Manville