Newman v. Highland Sch. Dist. No. 203: Attorney’s Communications With Former Employees Are Not Privileged
Businesses may no longer claim that conversations between their attorneys and former employees are protected by the attorney-client privilege, held the Washington Supreme Court in Newman v. Highland Sch. Dist. No. 203, a 5-4 decision filed on October 20, 2016. Following Newman, interviews of former employees will not be considered privileged, even if conducted by counsel and for purposes of providing legal advice to the corporation.
In Newman, a high school athlete sued his school district three years after his injury, alleging that the coaching staff should have removed him from competition because he had been injured and showed signs of a concussion. The district enlisted its attorneys to investigate the claims, which involved interviewing former coaches. The athlete demanded that the district disclose the substance of the attorneys’ interviews with the district’s former employees.The district refused, citing the attorney-client privilege.
On appeal, the Washington Supreme Court considered whether the district’s attorney’s communications with its former coaches were protected by the attorney-client privilege, even though the communications occurred after their employment had ended. The Court held that they were not privileged, favoring the bright-line and certain approach of cutting off the attorney-client privilege with the termination of employment, while acknowledging that former employees may expose the corporation to liability through their conduct while employed. The decision is a matter of first impression in Washington.
Newman did not apply to communications between the district’s attorneys and the former coaches while the former employees were represented by the district’s attorneys, an issue not appealed to the Supreme Court. Going forward, to protect interviews with former employees, counsel will need a basis for the attorney-client privilege other than the fact of the employees’ former employment, e.g., the former employees ask to be represented by counsel. Dual representation of the business and former employees does present a separate set of issues involving potential conflicts and potential disqualification that need to be carefully considered.