January 31, 2017 Top Story

Attorney-Client Privilege Does Not Apply to Former Employees

Lawyer's interviews with former employees are fully discoverable under new bright-line ruling

By Carl A. Aveni

Businesses beware: the attorney-client privilege does not shield interviews with former employees, at least according to one state supreme court. The privilege does not apply even if the interview relates to the scope of former employment or if the former employee had previously served in management. Once the employment relationship has ended, all future communications with corporate counsel are immediately discoverable, according to the decision.

This new bright-line test, adopted by the Washington Supreme Court in Newman v. Highland School Dist. No. 203, replaces the more flexible approach that other courts have used for decades. The previous rule, fashioned by the U.S. Supreme Court in Upjohn Co. v. United States, drew no distinction between current or former employees, instead balancing a host of factors including whether the communications: (1) were at the behest of management; (2) revealed factual information necessary to supply a basis for legal advice; and (3) concerned matters within the scope of employment.

Now, under Newman, the only question in Washington courtrooms will be whether there was an ongoing employment relationship at the moment of the communication. If not, then the attorney-client privilege will not apply, regardless of any other circumstances in play.

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