Appeal from Superior Court, Clallam County. 92-2-00336-1. Honorable Kenneth D. Williams, Judge.
Authored by Philip A. Talmadge. Concurring: James M. Dolliver, Charles Z. Smith, Richard P. Guy, Barbara A. Madsen. Dissenting: Gerry L. Alexander, Richard B. Sanders, Barbara Durham.
The opinion of the court was delivered by: Talmadge
TALMADGE, J. -- We are asked in this case to determine if the privilege set forth in RCW 5.60.060(2) forbids the disclosure of the identity of an attorney's putative client in a civil case when that client may have had knowledge of, or been involved in, a serious automobile accident in which Morgan Dietz was tragically killed. We affirm the general rule in Washington that the identity of an attorney's client is not privileged under the statute. We also affirm the so-called "legal advice" exception to that general rule: where the disclosure of the client's identity necessarily reveals the essence of the communication between the attorney and client, the client's identity need not be disclosed.
In this case, because the record is inadequate to determine the nature of Doe's consultation of counsel and whether Doe waived any privilege, we remand the case to the Clallam County Superior Court for appropriate factual findings on these questions.
1. Is an attorney required to disclose the identity of his or her putative client who was "involved" in an automobile accident?
2. Did the client waive any privilege under RCW 5.60.060(2) when the fact of representation was revealed in a newspaper story?
Morgan Dietz was killed in an automobile accident on May 24, 1989 on Highway 101 west of Port Angeles when his car collided with a dump truck that lost control while allegedly trying to avoid another car making an unsafe left turn. The driver of the car that made the unsafe left turn has never come forward, and the authorities do not know the driver's identity.
Within a week of the accident the following news article appeared in a local newspaper:
PORT ANGELES - An attorney is now handling the case of a motorist sought for questioning in connection with a fatal traffic accident which occurred last week, the State Patrol said Tuesday.
The man's identity has not been released and it is unknown whether he has talked with Patrol troopers.
Port Angeles attorney Craig Ritchie acknowledged Tuesday that the man had retained his services but had no further comment.
The Patrol wanted to question the motorist who reportedly turned left in front of a dump truck on Highway 101 west of Port Angeles Wednesday. The dump truck driver braked to avoid the driver, but his truck skidded on wet pavement, crossed over the centerline and collided with a van driven by Morgan L. Dietz II, the Patrol said. Dietz died of injuries sustained in the crash. Clerk's Papers at 36. There is nothing in the record as to how the writer of this article obtained the information in it. Based on the newspaper article, the attorney for the Dietz family members and estate contacted attorney Craig Ritchie in an attempt to discover the name of the person who had retained him. Ritchie refused to divulge the information, asserting attorney-client privilege. The Dietzes undertook an investigation to discover the person's name, to no avail. The wife, children, and estate of Morgan Dietz filed the present action on May 22, 1992, for wrongful death and loss of consortium against the unknown driver, whom they have named John Doe.
Plaintiffs' attorneys and Ritchie agreed that the best way to resolve the issue of whether Ritchie had to disclose the putative client's name was to have the court hear a motion to compel Ritchie to disclose the name. On September 20, 1993, plaintiffs filed the motion in which they sought an order to compel Ritchie "to disclose the name and address of his client who was involved in an automobile collision on May 24, 1989 as a result of which Morgan Dietz died." Clerk's Papers at 28. In their motion, even though they admitted disclosure of the name may have criminal consequences because the driver had left the scene of an accident, they asserted "disclosure of the name in and of itself would not establish the level of the individual's involvement nor the substance of his communication with Mr. Ritchie." *fn1 Clerk's Papers at 41. In response, Ritchie contended such a disclosure would inherently reveal a communication from a client, and should therefore be protected.
The motion was heard on October 15, 1993, before Clallam County Superior Court Judge Kenneth D. Williams, who denied the motion to compel. *fn2 In denying the motion to compel, the trial court stated identification of John Doe would plainly implicate him in the accident of May 24, 1989:
Based on my review and analysis of this situation to require Mr. Ritchie to divulge the name of his client would necessarily require him to divulge the confidential communication which was given to him and from everything before me it would appear that that communication was made expressly for the purposes of maintaining the client's identity secret from the other parties who were involved or concerned and connected with this action, be that civil or criminal. Clerk's Papers at 26.
The plaintiffs sought review of the denial of the order, which was granted, and the Court of Appeals affirmed denial of the motion. Dietz v. Doe, 80 Wash. App. 785, 911 P.2d 1025 (1996). We granted review.
A. Attorney-Client Privilege in Washington
RCW 5.60.060(2) reads: "An attorney or counselor shall not, without the consent of his or her client, be examined as to any communications made by the client to him or her, or his or her advice given thereon in the course of professional employment." *fn3 The attorney-client privilege exists in order to allow the client to communicate freely with an attorney without fear of compulsory discovery. State ex rel. Sowers v. Olwell, 64 Wash. 2d 828, 832, 394 P.2d 681 (1964); Pappas v. Holloway, 114 Wash. 2d 198, 203, 787 P.2d 30 (1990) (privilege encourages free and open communications by assuring that communications will not be disclosed to others directly or indirectly). The ...