Yet another decision coming out of Washington that complicates life.

Nope.  This too is not a post having anything to do with the recent election.  The Washington in the title is the State of Washington, and the decision is the controversial 5-4 decision issued by the Washington Supreme Court in Newman v. Highland Sch. Dist. back on October 20, 2016.  The Washington court, over a strenuous dissent, ruled that the attorney-client privilege did not apply to protect a lawyer’s communications with a former employee of the lawyer’s corporate client.

You can read the entirety of the opinion, if you’d like, here.  But, I’d suggest that you’d do just as well to read the wonderful treatment of the opinion, and the interviews obtained from prominent folks about it, in this piece put out by Joan Rogers with the ABA/BNA Lawyers’ Manual on Professional Conduct.  Joan, as always, does a great job with a pretty deep dive into the issues raised.  [And, see, this is proof that I don’t only praise the ABA/BNA reporters when they quote me in a story.  ; ) ]

I find myself in agreement with the dissent and those interviewed by Joan that are critical of the opinion, but not only for the way that the ruling takes a crabbed view of the privilege in the corporate context and seems to fail (or be unwilling) to grasp that people who have certain important information belonging to the corporation that the attorney needs to know may very well have moved on to a different place of employment by the time the corporation’s lawyer needs to speak with them.

The other concern I have about this sort of outcome on privilege is that it can serve to drive lawyers, as a workaround, to decide to take on representation of the former corporate employee in what becomes a joint representation with the corporation in the matter in order to be able to secure application of the privilege to communications.

There is nothing inherently wrong with such an approach, but it does create real potential for claims to be raised by adversary counsel that the undertaking is intended solely to restrict them under the relevant analog to Model Rule 4.2 from being able to communicate with the former employee.  (Of course, depending on the particular language of the jurisdictions RPC 4.2 and accompanying comments, there hopefully already exists an argument for the lawyer involved that the person was treated as off-limits under RPC 4.2, but I digress a bit.)

From my experience, the more fundamental problem is that lawyers pursuing such a course — often with a blindered focus on privilege issues — do not always take the time to think through all of the other angles that can come into play by taking on this second client in the matter.

The concept of an “accommodation” client is one that some prominent minds in the legal ethics community consider to be at least highly controversial if not altogether antithetical to the premise of an attorney-client relationship.  Nevertheless, it is a recognized concept and a lawyer can lay out the concept in an engagement letter with this former employee to indicate that if something goes wrong and the interests of the lawyer’s primary client and the former employee’s interest diverge that the lawyer will be permitted to simply withdraw from representing the former employee while continuing to represent the corporation.  There is also the available structure of a limited scope representation under RPC 1.2(c), to make clear that the added representation will be limited in scope and duration so as to decrease the likelihood that the interests of the original client and this former employee will become cross-wise during the time period in which both clients are being represented.

Leave a Reply

Your email address will not be published. Required fields are marked *