§6.3 Attorney-Client Privilege

• Jurisdiction: Washington

III. Attorney-Client Privilege

As explained in Section I.B., above, prior to 2006, Washington's ethics code incorporated the attorney-client privilege explicitly as part of a binary ethical duty. Now that this binary approach has been abandoned, the law of attorney-client privilege—a part of the law of evidence—has been "decoupled" from the ethics code and must be treated separately.^385. Nonetheless, the attorney-client privilege is a fundamental part of the "law of lawyering" and needs to be examined. That is the purpose of this section. But we cannot hope to give complete coverage to the evidentiary privilege here. Readers should consult sources on evidence for a complete treatment of the subject in context.^386.

In Washington, the starting point for understanding the attorney-client privilege is the Washington Code. RCW 5.60.060(2) simply provides that "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."

The statute demonstrates two fundamental aspects of the attorney-client privilege. First, in contrast to the ethics code, which imposes a broad prohibition on disclosure of confidences, the privilege only protects an attorney from "examination" as to privileged information. It is a privilege against being compelled to testify in a tribunal. Second, the privilege protects from "examination" only "communications" and not necessarily the facts or information communicated.^387.

Before proceeding with an examination of the contours of the attorney-client privilege, however, it must be noted that there is a point not made in the statute that must always be kept in mind by Washington lawyers: there will be occasions when a Washington lawyer will be representing clients for whom the Washington law of attorney-client privilege is not the applicable law. This may happen if the client has a matter pending in another jurisdiction that has evidentiary rules different than those of Washington. It may also happen if the client is in federal court and subject to the federal attorney-client privilege rules under Federal Rule of Evidence 501.³⁸⁸

A. In General

The purpose of the attorney-client privilege "is to afford the client freedom from fear of compulsory disclosure after consulting his legal advisor."³⁸⁹ The most often cited definition of the privilege is:

(1) Where legal advice of any kind is sought (2) from a professional legal adviser in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or by his legal adviser, (8) except the protection be waived.³⁹⁰

The Restatement has articulated the same definition in slightly different words.³⁹¹

The privilege only exists when an attorney-client relationship is present or is being contemplated.³⁹² A communication with an attorney whom a client is considering retaining is privileged even if the client ends up not retaining the lawyer or vice versa.³⁹³ Existence of the privileged relationship does not require a fee but may be implied from the conduct of the parties and turns largely on whether the client subjectively believes the relationship exists.³⁹⁴ "However, the belief of the client will control only if it ‘is reasonably formed based on the attending circumstances, including the attorney's words or actions.'"³⁹⁵ The "essence" of the privilege is the client's intent at the time of the communication.³⁹⁶The client must believe she is consulting an attorney, directly or through an agent, in a legal capacity, seeking professional legal advice.³⁹⁷

The attorney-client privilege prohibits unauthorized attorney testimony only when the attorney is consulted in a capacity as a legal advisor; consultations with an attorney as a business advisor, banker, negotiator, accountant, or friend are not protected.³⁹⁸ The fact that the lawyer is performing services that can be performed by nonlawyers will not preclude the protection of the privilege if the client is consulting the lawyer because of the lawyer's legal skills and training.³⁹⁹ Moreover, the privilege does not protect communications made to an attorney by someone other than the client (unless the communicator is a privileged agent of the client): "To be protected as a privileged communication, information or objects acquired by an attorney must have been communicated or delivered to him by the client, and not merely obtained by the attorney while acting in that capacity for the client."⁴⁰⁰

The attorney-client privilege extends to written as well as oral communications.⁴⁰¹ Protection extends to nonverbal acts if intended to convey information to a lawyer.⁴⁰² But saliva on an envelope is not a communication for purposes of the privilege.⁴⁰³ And if a document was not prepared for the purpose of obtaining legal advice or giving it, it does not qualify for the privilege, and it cannot be brought under the attorney-client umbrella simply by having the lawyer review it. "A client-authored document that is not a privileged document when originally composed does not become privileged simply because the client has placed it in the lawyer's hands."⁴⁰⁴

In Soter v. Cowles Publishing Co.,⁴⁰⁵ the Washington Supreme Court held that documents containing communications between counsel for a school district and teachers were covered by the privilege and thus exempt from production under the Public Records Act. The documents related to an investigation by the school into the death of a nine-year-old student who had died from an allergic reaction to a peanut butter cookie on a school field trip. Although the teachers had also retained private counsel, the court found the documents containing communications with the school district's lawyers privileged because the lawyers were hired by the school's insurance company that also covered the teachers, they had joint defense agreements with the teachers' private counsel, and the teachers believed that they were clients.⁴⁰⁶

The state Supreme Court has explained that "the privilege does not terminate with the cessation of the protected relationship, but continues thereafter, even after the death of the person to whom the privilege is accorded, and may be invoked by his personal representative or his heir."⁴⁰⁷ The U.S. Supreme Court has held that, as a matter of federal law, the attorney-client privilege survives the death of the client.⁴⁰⁸ An attorney and his law firm moved to quash grand jury subpoenas arising out of an investigation by the Office of the Independent Counsel. At issue were notes made during an initial interview with a client nine days before he committed suicide. The Court stated, "Knowing that communications will remain confidential even after death encourages the client to communicate fully and frankly with counsel. ... Posthumous disclosure of such communications may be as feared as disclosure during the client's lifetime."⁴⁰⁹

To be protected, communications must be made "in confidence."⁴¹⁰ Thus, a communication made for the purpose of public disclosure is not privileged.⁴¹¹ Moreover, the privilege may be lost when persons other than the attorney and client are present or overhear communications.⁴¹² A third party overhearing communications between an attorney and client may testify to the substance of such conversation.⁴¹³ Even when a conversation has been overheard by a third party, disclosure of its contents may not be compelled from the attorney without the client's consent.⁴¹⁴ However, communications that occur between parties who are not attorneys and reflect the receipt of unattributed legal advice do not constitute privileged communications between attorney and client.⁴¹⁵ On the other hand, when two or more clients meet with an attorney regarding a common interest in certain pending litigation, their communications are protected by the attorney-client privilege from disclosure to anyone other than the common clients.⁴¹⁶ But they are not privileged from disclosure in a dispute between the coclients.⁴¹⁷

If a conversation is overheard by means of an electronic device, the evidence is excluded by virtue of RCW 9.73.050.^418. This statute should be broad enough to cover the interception of communications via e-mail.⁴¹⁹ The question whether a lawyer violates the ethical duty of client confidentiality by communicating sensitive material in an e-mail is discussed in Section II.D.2., above.

An attorney may be called to testify as to whether a client has been advised of the right to remain silent, and such testimony will not infringe upon the attorney-client privilege because it does not reveal client communications.⁴²⁰ However, further inquiries into the reasons for such advice or the circumstances under which it was given should not be permitted.⁴²¹

The privilege also prohibits interrogation of an attorney regarding information given to others based upon privileged communications of a client.⁴²²

B. Government and Corporate Clients

The attorney-client privilege protects communications with an attorney representing the state as well as individuals.⁴²³ Thus, in Amoss v. University of Washington, the court held that a legal memorandum prepared by the assistant attorney general for the president of the University of Washington was subject to the privilege and not subject to compelled disclosure.⁴²⁴ Particular problems arise in the case of prosecutors, whose "clients" are difficult to identify. The scope of the privilege with regard to government attorneys is frequently addressed in litigation over federal and state "right to know" legislation, because such statutes contain exemptions for government documents that are privileged.⁴²⁵ In the public interest, exceptions to the legislation are strictly construed, but public agencies can privately consult...