Dietz v. Doe
| Decision Date | 24 April 1997 |
| Docket Number | No. 64002-5,64002-5 |
| Court | Washington Supreme Court |
| Parties | Melissa DIETZ, individually and as personal representative of the Estate of Morgan Levere Dietz, deceased, and on behalf of Morning Bell Dietz and Melange Levere Dietz, Appellant, v. John DOE, Respondent. |
Ritchie Law Offices, Craig A. Ritchie, Port Angeles, for respondent.
We are asked in this case to determine 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.
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.
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 motion was heard on October 15, 1993, before Clallam County Superior Court Judge Kenneth D. Williams, who denied the motion to compel. 2 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:
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." 1 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
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.
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.
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." 3
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) (). The attorney-client privilege applies to communications and advice between an attorney and client and extends to documents that contain a privileged communication. Pappas, 114 Wash.2d at 203, 787 P.2d 30.
Because the privilege sometimes results in the exclusion of evidence otherwise relevant and material, and may thus be contrary to the philosophy that justice can be achieved only with the fullest disclosure of the facts, the privilege is not absolute; rather, it is limited to the purpose for which it exists. Dike v. Dike, 75 Wash.2d 1, 11, 448 P.2d 490 (1968); State v. Maxon, 110 Wash.2d 564, 567, 756 P.2d 1297 (1988) (). As the United States Supreme Court has said:
The common-law principles underlying the recognition of testimonial privileges can be stated simply. " " United States v. Bryan, 339 U.S. 323, 331, 70 S.Ct. 724, 730, 94 L.Ed. 884 (1950) (quoting 8 J. WIGMORE, EVIDENCE § 2192, p. 64 (3d ed. 1940)).
Jaffee v. Redmond, --- U.S. ----, ----, 116 S.Ct. 1923, 1928, 135 L.Ed.2d 337 (1996). Employing the attorney-client privilege to prohibit testimony must be balanced against the benefits to the administration of justice stemming from the general duty to "give what testimony one is capable of giving." Bryan, 339 U.S. at 331, 70 S.Ct. at 730.
The initial inquiry for purposes of RCW 5.60.060(2) is whether an attorney-client relationship or other protected relationship exists. "An attorney-client relationship is deemed to exist if the conduct between an individual and an attorney is such that the individual subjectively believes such a relationship exists." In the Matter of the Disciplinary Proceeding Against McGlothlen, 99 Wash.2d 515, 522, 663 P.2d 1330 (1983). However, the belief of the client will control only if it "is reasonably formed based on the attending circumstances, including the attorney's words or actions." State v. Hansen, 122 Wash.2d 712, 720 The trial court in its oral opinion did not address the question of whether Doe was Ritchie's client; the trial court assumed it, and made no explicit findings of fact or conclusions of law in its order regarding the existence of an attorney-client relationship between Doe and Ritchie. Similarly, the Court of Appeals did not address the question, stating only, "The parties have assumed that the unknown driver retained Ritchie to represent the driver in connection with the accident." Dietz, 80 Wash.App. at 793, 911 P.2d 1025.
862 P.2d 117 (1993), quoting Bohn v. Cody, 119 Wash.2d 357, 363, 832 P.2d 71 (1992). The determination of whether an attorney-client relationship exists is a question of fact. Bohn, 119 Wash.2d at 363, 832 P.2d 71. The burden of proving the existence of the relationship and that the information the Dietzes sought fell within the privilege rested squarely with [935 P.2d 616] Doe. R.A. Hanson Co., Inc. v. Magnuson, 79 Wash.App. 497, 501, 903 P.2d 496 (1995), review denied, 129 Wash.2d 1010, 917 P.2d 130 (1996)
However, the existence of an attorney-client relationship or other protected relationship in this case is an unresolved issue. It was Doe's burden to make a factual showing to support the existence of a protected relationship, but there are no...
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