Wright by Wright v. Group Health Hosp.

• Decision Date: 06 December 1984
• Docket Number: No. 50801-1,50801-1
• Citation: 691 P.2d 564,103 Wn.2d 192
• Parties: , 50 A.L.R.4th 641, 53 USLW 2309 Jeffrey D. WRIGHT, by his Guardian ad Litem, Daniel WRIGHT; and Daniel Wright and Nancy Wright, Petitioners, v. GROUP HEALTH HOSPITAL and Dr. Kevin Schaberg, Respondents.
• Court: Washington Supreme Court

Page 192

103 Wn.2d 192

691 P.2d 564, 50 A.L.R.4th 641, 53 USLW 2309

Jeffrey D. WRIGHT, by his Guardian ad Litem, Daniel WRIGHT and Daniel Wright and Nancy Wright, Petitioners, v. GROUP HEALTH HOSPITAL and Dr. Kevin Schaberg, Respondents.

No. 50801-1.

Supreme Court of Washington En Banc.

Dec. 6, 1984.

Paul Luvera, Jr., John G. Kamb, Mount Vernon, for petitioners.

Williams, Lanza, Kastner & Gibbs, John Rosendahl, Seattle, for respondents.

Schroeter, Goldmark & Bender, Leonard Schroeter, Seattle, amicus curiae for petitioners.

Bryan Harnetiaux, Winston & Cashatt, Robert Whaley, Spokane, amicus curiae of Washington Trial Lawyers Assn.

DOLLIVER, Justice.

The question presented in this appeal is whether, in connection with events leading to a medical malpractice action, a defendant hospital corporation may prohibit its current employees from conducting ex parte interviews with plaintiffs' attorneys. The trial court held these interviews would violate CPR DR 7-104(A)(1). We reverse.

I

This appeal arose out of plaintiffs' medical malpractice action pending against Group Health Hospital (Group Health) and Dr. Kevin Schaberg, its employee. In the malpractice action, plaintiffs allege defendant employees of Group Health, including Dr. Schaberg, committed medical malpractice in the care and management of Mrs. Wright during labor and delivery of her son Jeffrey.

Group Health is a large Seattle-based health care cooperative. When a medical malpractice action is brought against it, Group Health has a policy of giving the following instructions to the individuals involved in the care of the plaintiff/patient. Group Health advises these employees that its outside counsel represents Group Health in the action; the employees will be contacted by and should fully cooperate with this law firm; their communications with the law firm are confidential; and they are not to discuss the case with anyone other than said law firm. This notice is given to the pertinent employees even if they were not currently employed by Group Health.

During the course of discovery in the malpractice action, plaintiffs' attorney asked for the addresses and telephone numbers of nurses involved in the care of Mrs. Wright. The information was provided with the understanding that such nurses were to be regarded as clients of the law firm and that plaintiffs would make no effort to contact these nurses ex parte. Group Health's attorneys asserted these ex parte interviews were barred by the attorney-client privilege and the disciplinary rules. Plaintiffs' attorney disagreed and moved for a protective order declaring he had both the legal and ethical right to interview ex parte both current and former Group Health employees so long as they were not management employees.

The trial court denied plaintiffs' motion for a protective order. The court affirmed the defendant corporation's right to give a blanket instruction to its current nonparty employees not to have ex parte contacts with plaintiffs' attorneys. The court held these interviews would violate CPR DR 7-104(A)(1). Plaintiffs' appeal was certified from Division One of the Court of Appeals.

II

Group Health argues that as a corporation represented by counsel, its current and former employees are "clients" of the law firm for purposes of the attorney-client privilege. To preserve the confidences and secrets protected by the privilege, Group Health argues its employees should not be discoverable plaintiffs on an ex parte basis. We disagree.

The attorney-client privilege, RCW 5.60.060(2), provides that an attorney shall not, without the consent of his client, be examined as to any communication made by the client to him, or his advice given thereon in the course of professional employment. While the attorney-client privilege may in certain instances extend to lower level employees not in a "control group", Upjohn Co. v. United States, 449 U.S. 383, 101 S.Ct. 677, 66 L.Ed.2d 584 (1981), the privilege extends only to protect communications and not the underlying facts. This distinction was noted by the Upjohn Court:

"[T]he protection of the privilege extends only to communications and not to facts. A fact is one thing and a communication concerning that fact is an entirely different thing. The client cannot be compelled to answer the question, 'What did you say or write to the attorney?' but may not refuse to disclose any relevant fact within his knowledge merely because he incorporated a statement of such fact into his communication to his attorney."

Upjohn Co., at 395-96, 101 S.Ct. at 685-86 (quoting Philadelphia v. Westinghouse Elec. Corp., 205 F.Supp. 830, 831 (E.D.Pa.1962)).

In Upjohn the "communication" was the correspondence between the corporate employee and corporate counsel. At issue was the applicability of the privilege to the employee. In the present case, plaintiffs' attorney does not seek to discover a communication by a Group Health employee. Indeed, there is no communication which Group Health claims is privileged. Plaintiffs' attorney seeks to interview Group Health employees to discover facts incident to the alleged medical malpractice, not privileged corporate confidences.

We hold the attorney-client privilege does not in itself bar plaintiffs' attorney from interviewing defendant corporation's employees.

III

Group Health next argues all of its current and former employees are "parties" within the meaning of CPR DR 7-104(A)(1) and the rule would be violated if plaintiffs' counsel attempted to contact Group Health's employees.

CPR DR 7-104(A) provides:

During the course of his representation of a client a lawyer shall not:

(1) Communicate or cause another to communicate on the subject of the representation with a party he knows to be represented by a lawyer in that matter unless he has the prior consent of the lawyer representing such other party or is authorized by law to do so.

* * *

(Italics ours.)

A

CPR DR 7-104(A)(1) (rule) is based on the American Bar Association original version of Canon 9, which was superseded by the adoption of the American Bar Association of the Code of Professional Responsibility in 1970. Leubsdorf, Communicating with Another Lawyer's Client: The Lawyer's Veto and the Client's Interest, 127 U.Pa.L.Rev. 683, 685 n. 10 (1979) (Leubsdorf). The original Canon 9 read:

A lawyer should not in any way communicate upon the subject of controversy with a party represented by counsel; much less should he undertake to negotiate or compromise the matter with him, but should deal only with his counsel....

(Italics ours.) ABA Canons of Professional Ethics 9 (1908); H. Drinker, Legal Ethics 201 (1953); Leubsdorf, supra.

The official historical purposes of the rule and its predecessor Canon 9 were two-fold: preserving the proper functioning of the legal system and shielding the adverse party from improper approaches. ABA Comm. on Professional Ethics and Grievances, Formal Op. 108 (1934). Others characterized the historical purposes of the rule as preventing attorneys from "stealing clients" (H. Drinker, Legal Ethics, at 190), or to proscribe attorney contacts with represented parties so they would not diminish potential contingent fees by negotiating unfavorable settlements directly with clients. Note, DR 7-104 of the Code of Professional Responsibility Applied to the Government "Party", 61 Minn.L.Rev. 1007, 1010 (1977) (Note, Government "Party" ). In more recent years, however, the purpose of the rule has been said to shield the represented client from improper approaches. Note, Government "Party", supra. See also State v. Thompson, 206 Kan. 326, 330, 478 P.2d 208 (1970). The general thrust of the rule is to prevent situations in which a represented party may be taken advantage of by adverse counsel; the presence of the party's attorney theoretically neutralizes the contact. See Kurlantzik, The Prohibition on Communication with an Adverse Party, 51 Conn.B.J. 136, 145-46 (1977).

B

Plaintiffs' attorney does not seek ex parte contacts with Group Health's employee, Dr. Schaberg, who is a joined party in this action. Rather, plaintiffs seek to interview ex parte nurses and other Group Health personnel all of whom are not parties in the malpractice action. While easily identifiable in litigation between private parties, the scope of CPR DR 7-104(A)(1) is less clear when one party is a corporation, as is Group Health. In this context the crucial issue is: Which of the corporate party's employees should be protected from approaches by adverse counsel?

In our adversarial legal system, a policy conflict arises when a corporation attempts to use CPR DR 7-104(A)(1) defensively so as to prevent an adverse attorney from interviewing its employees ex parte. On the one hand, there is the need of the adverse attorney for information which may be in the exclusive possession of the corporation and may be too expensive or impractical to collect through formal discovery. On the other hand is the corporation's need to protect itself for the traditional reasons justifying the rule. For discussion of the conflicting interests, see generally IBM Corp. v. Edelstein, 526 F.2d 37, 41-43 (2d Cir.1975) (judge's order requiring that ex parte interviews of defendant government employees be transcribed exceeded trial court's authority because informal witness interviews serve important fact-finding function); Leubsdorf, supra at 695; Note, Government "Party", supra at 1013-16. In attempting to balance the conflicting policies, courts, bar associations, and commentators have struggled with the issue whether a corporate party's employee should be considered a "party". The decisions may be classified as follows.

Some authorities declare CPR DR 7-104(A)(1) does not bar ex parte interviews with any of a corporate party's employees who were witnesses to the acts or omissions giving rise to the action. These authorities, moreover, do not require the consent of adverse counsel in...