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Thompson Hine LLP, a full-service business law firm with approximately 400 lawyers in 11 offices, was ranked number 1 in the category “Most innovative North American law firms: New working models” by The Financial Times and was 1 of 7 firms shortlisted for The American Lawyer’s inaugural Legal Services Innovation Award. The firm has been recognized by the National Law Journal as a Legal Technology Trailblazer and featured by Bloomberg for its innovative service delivery models, which drive accuracy and predictability. The firm’s commitment to innovation is embodied in Thompson Hine SmartPaTHTM – a smarter way to work – predictable, efficient and aligned with client goals. For more information, please visit ThompsonHine.com and ThompsonHine.com/SmartPaTH.

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Washington, D.C.

<img style="max-width: 100%;height: auto;max-width: 100%;height: auto" loading="lazy" class="alignright size-medium wp-image-2959" src="https://www.thelawforlawyerstoday.com/wp-content/uploads/sites/754/2016/12/Privilege-2-300x252.jpg" alt="Privilege 2" width="300" height="252">A sharply-divided Washington Supreme Court has ruled that an organization&rsquo;s attorney-client privilege doesn&rsquo;t apply to post-employment communications between the company&rsquo;s lawyers and its former employees.&nbsp; Although <a href="http://filehost.thompsonhine.com/uploads/Newman_v._Highland_School_District_No._203_e392.pdf">Newman v. Highland School District No. 203</a> adheres to a minority viewpoint, the implications are troubling, and the bright-line test that the state supreme court established in a case of first impression will require new cautions in cases where Washington state privilege law applies.
Talks with former coaches not within privilege
In Newman, parents of a brain-injured high-school football player sued the school district, alleging negligence.&nbsp; In preparing for trial, the school district&rsquo;s lawyers interviewed the entire coaching staff, including several former coaches.&nbsp; When the interviews came to light at a&nbsp;former coach&rsquo;s&nbsp;deposition,&nbsp;the plaintiffs sought discovery of the communications between them and the lawyers for the school district.
Holding that &ldquo;everything changes when employment ends,&rdquo; the court&rsquo;s 5-4 majority ruled that &ldquo;the privilege does not broadly shield counsel&rsquo;s postemployment communications with former employees.&rdquo;
The court said that once the employment is over, the principal-agent relationship is severed, and the former employees are like any other third-party fact witness.&nbsp;&ldquo;The flexible approach articulated in Upjohn,&rdquo; the leading case on corporate attorney-client privilege,&nbsp;&ldquo;presupposed attorney-client communications taking place within the corporate employment relationship,&rdquo; the court wrote.
Likewise, the Restatement (Third) of the Law Governing Lawyers &sect; 73 cmt. [e] generally limits the privilege to the duration of a principal-agent relationship, the majority said.&nbsp;&nbsp;In addition, the court held, the rule promotes predictability and the &ldquo;truth-seeking mission&rdquo; of the trial process, which would be frustrated if the privilege were extended to cover post-employment communications with former employees.
&ldquo;At odds&rdquo; with Upjohn
The dissent in Newman disagreed with the majority&rsquo;s adoption of a bright-line rule that would cut off the corporate attorney-client privilege at the termination of employment, and would exclude from its scope all postemployment communications with former employees, even when they have relevant personal knowledge regarding the subject matter.&nbsp; &ldquo;[H]ad they remained employed, such communications with counsel would have been privileged&rdquo; under the&nbsp;reasoning in&nbsp;Upjohn,&nbsp;the author of the dissent noted.
Upjohn&rsquo;s functional framework does not look at the &ldquo;formalities&rdquo; of the employment relationship, said the dissenters; rather, the focus is on the purpose of the communications themselves and the benefits and goals of the privilege.
Therefore, the proper test, the dissent argued,&nbsp;is &ldquo;Did the communications with the former employee, whenever they occurred, &lsquo;relate to the former employee&rsquo;s conduct and knowledge, or communication with defendant&rsquo;s counsel, during his or her employment?&#8217;&rdquo;
ACC: Majority&nbsp;doesn&rsquo;t get it
The VP and chief legal strategist of the Association of Corporate Counsel, Amar D. Sarwal, <a href="https://www.bna.com/no-privilege-lawyers-n57982082136/">quoted </a>in Bloomberg BNA/ABA Lawyers&rsquo; Manual on Professional Conduct, called the Newman decision &ldquo;troubling,&rdquo; and &ldquo;a bad idea for Washington, and bad for other courts to follow.&rdquo;&nbsp; The decision reflects a &ldquo;misunderstanding&rdquo; of the way an organization&nbsp;gains and retains knowledge, which includes the knowledge of people who have left the organization, he said.
Practical implications 
Washington&rsquo;s supreme court got it wrong. Fortunately, its new bright-line rule is a minority viewpoint, and the privilege jurisprudence of most jurisdictions would follow Upjohn&rsquo;s flexible approach.&nbsp;&nbsp;But even if you are not litigating a case in a&nbsp;Washington state court, <a href="https://www.rulesofevidence.org/article-v/rule-501/">Federal Evidence Rule 501 </a>might point to Washington law as supplying the rule of privilege.&nbsp;&nbsp;Surmounting the challenge presented by Newman might involve exploring how an attorney-client relationship with an organization&rsquo;s former employees might be extended or re-created for the purpose of communicating with them under the shield of privilege.

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Ethics

Legal Ethics, Professional Responsibility and the Business of Law

Warning from WA:  lawyer’s post-employment interviews with former employees not privileged