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July 2017

No privilege for lawyer communication with ex-employees, says state supreme court

It’s not unusual for companies in litigation to rely upon former employees for information. But a company’s attorney-client privilege does not shield interviews with former employees, at least according to a state supreme court’s divided opinion handed down in October.

Commercial litigator Carl A. Aveni of Carlile Patchen & Murphy LLP explains in a recent Litigation News article, “Attorney-Client Privilege Does Not Apply to Former Employees,” that a new bright-line test adopted by the Washington Supreme Court (in Newman v. Highland School Dist. No. 203) replaces the more flexible approach used for decades.

“The previous rule, fashioned by the U.S. Supreme Court in Upjohn Co. v. United States [in 1981], drew no distinction between current or former employees,”  Aveni says, noting that the privilege balanced on a host of factors, including whether the communications was at the behest of management, revealed information as a necessary basis for legal advice and 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,” Aveni explains. “If not, then the attorney-client privilege will not apply, regardless of any other circumstances in play.”

ABA Section of Litigation members sharing opinions on the matter disagreed with the court and cautioned other courts from following the decision. “You don’t want to mute the flow of relevant and necessary information between a corporation and its employees,” says T. Lowndes Pope, co-chair of the Legal Ethics Subcommittee of the section’s Corporate Counsel Committee. “Just because the employee may have recently left employment should not end the corporation’s ability to have those protected discussions.”

Others, like Michael A. Brockland, co-chair of the Privilege Subcommittee of the section’s Commercial & Business Litigation Committee, worry that the decision “will have a chilling effect on how that former employee is approached, and the scope of topics discussed, because all of that now is discoverable.”

Working around the bright line, Brockland emphasizes the importance of the pre-separation exit interview. “While they are still under your wing, you’ll want to go ahead and get as thorough an understanding as you can.”

For more on Newman v. Highland School Dist. No. 203 and its implications, read the full article here.

Litigation News is a publication of the Section of Litigation.

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