§14.2 The Attorney-Client Privilege

• Jurisdiction: Washington

§ 14.2 THE ATTORNEY-CLIENT PRIVILEGE

This section discusses the attorney-client privilege in the context of public records requests.

(1) Source and purpose

The attorney-client privilege is the oldest of privileges—dating back to the 16th century. Marion J. Radson & Elizabeth A. Waratuke, The Attorney-Client and Work Product Privileges of Government Entities, 30 Stetson L. Rev. 799, 801 (2001).

The purpose of the privilege is to promote "full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice." Upjohn Co. v. United States, 449 U.S. 383, 389, 101 S. Ct. 677, 66 L. Ed. 2d 584 (1981). The attorney-client privilege allows clients to communicate freely with an attorney without fear of compulsory discovery. Dietz v. Doe, 131 Wn.2d 835, 842, 935 P.2d 611 (1997). Because the exercise of the privilege can result in the exclusion of evidence that is otherwise relevant and material, it is contrary to the philosophy that justice can be achieved only with the fullest disclosure of the facts. Pappas v. Holloway, 114 Wn.2d 198, 203-04, 787 P.2d 30 (1990). Accordingly, the privilege cannot be treated as absolute and must be strictly limited to the purpose for which it exists. Dietz, 131 Wn.2d at 843.

The attorney-client privilege is codified at RCW 5.60.060(2)(a): "An attorney or counselor shall not, without the consent of his or her client, be examined as to any communication made by the client to him or her, or his or her advice given thereon in the course of professional employment." Although the statute refers to limits on an attorney's testimony, the Supreme Court has recognized that the privilege belongs to the client, not the attorney, and it applies equally to testimony and written documents that were created for the purpose of obtaining or providing legal advice. Dietz, 131 Wn.2d at 842, 850.

Hangartner v. City of Seattle, 151 Wn.2d 439, 90 P.3d 26 (2004), was a 5-4 decision in which the court held that RCW 5.60.060(2)(a) constitutes an "other statute" exemption under RCW 42.56.070(1), even though it is really an evidentiary statute. Under RCW 42.56.070(1), an "other statute which exempts or prohibits disclosure of specific information or records" is treated as a PRA exemption.

Hangartner requested public records from the city of Seattle regarding the construction of a light rail system and the city's designation of an alcohol impact area in the Pioneer Square neighborhood. The city withheld six documents from its response to these two separate requests, claiming they were exempt under either the controversy exemption in RCW 42.56.290 or the attorney-client privilege in RCW 5.60.060(2)(a). The Supreme Court found the "controversy" exemption did not apply but ruled that the records were exempt under the attorney-client privilege statute.

The dissenting justices asserted that this privilege only prohibits attorneys from disclosing information and not the agencies that are subject to PRA requests. Hangartner, 151 Wn.2d at 458. They argued that the majority's ruling would undermine the PRA by shielding records from the public that are often vital for understanding why agencies have made certain decisions.

The majority addressed the dissent's concern regarding the potential application of the privilege by stressing its limited application and the consequences for an agency that improperly asserts the privilege:

The attorney-client privilege is a narrow privilege and protects only "communications and advice between attorney and client"; it does not protect documents that are prepared for some other purpose than communicating with an attorney. Kammerer v. W. Gear Corp., 96 Wash.2d 416, 421, 635 P.2d 708 (1981). Thus, should an agency prepare a document for a purpose other than communicating with its attorney, and then claim that the document is protected by the attorney-client privilege, the requesting party might well claim that the agency has acted in bad faith. A finding of bad faith could cost the agency dearly since a requesting party is "entitled" to an award of between $5 and $100 for each day that it was wrongfully denied the '"right to inspect or copy [the requested] public record.'" Amren v. City of Kalama, 131 Wash.2d 25, 35, 37, 929 P.2d 389 (1997)(quoting [former] RCW 42.17.340(4) [now codified in RCW 42.56.550(4)].). When deciding where, between $5 and $100 per day, the appropriate per day award should rest, the court must consider whether the agency claimed an exemption in bad faith. Id. at 38, 929 P.2d 389.

Hangartner, 151 Wn.2d at 452.

(2) How to determine if the privilege applies

Whether the privilege applies depends on the client, the type of communication involved, and the circumstances, as discussed below.

(a) Who is the client?

An attorney-client relationship must first exist for the privilege to apply. That occurs if the conduct between an individual and an attorney is such that the individual subjectively believes that such a relationship exists. In re McGlothlen, 99 Wn.2d 515, 522, 663 P.2d 1330 (1983). This belief controls only if it is reasonably formed based on the attending circumstances, including the attorney's words or actions. Dietz, 131 Wn.2d at 843. In Soter v. Cowles Publishing Co., 162 Wn.2d 716, 745-46, 174 P.3d 60 (2007), the Supreme Court found that notes regarding communications between the school district's legal team and school employees and volunteers covered by the school district's insurance policy were privileged, in significant part because "these people believed they were clients." The court also held that documents created by school district personnel and volunteers at the request of the school district's attorneys and with the intention of communicating information to the attorneys were covered by the attorney-client privilege. Id. at 747.

In Morgan v. City of Federal Way, 166 Wn.2d 747, 213 P.3d 596 (2009), the Supreme Court rejected a claim of attorney-client privilege made by a municipal judge who was the subject of an investigative report written by an attorney hired by the Federal Way city attorney. The judge argued that the city should not release the report in response to a PRA request because the report was a privileged attorney-client communication. The court disagreed, stressing the importance of the purported client's belief regarding the existence of the attorney-client relationship, and noted that the judge viewed the city attorney's advice as "unsolicited.'' Id, at 755. Although an attorney had written the report, the purpose of the report was not to provide legal advice, as it contained only factual details and no legal analysis or recommendations.

The determination of an attorney-client relationship can be more complicated in a public agency setting. When a statute or ordinance assigns a "legal advisor" role to an attorney's confidential communications between the agency client seeking legal advice and that attorney, it should be covered by the attorney-client privilege. See Hearn v. Rhay, 68 F.R.D. 574, 579 (E.D. Wash. 1975) (superintendents of state penitentiary and mental health ward were clients of the attorney general, and the privilege could be asserted with respect to confidential communications between the two). When addressing whether communications between a prosecuting attorney and the chief of staff of the prosecuting attorney's office are covered, the Court of...