This fall, we blogged that counsel needed to take care when marking documents as privileged. Now corporate counsel in Washington State should also take care when communicating with former employees as the State Supreme Court has ruled that attorney-client privilege no longer applies to those communications.
According to a report by The National Law Review, in the case of Newman v. Highland Sch. Dist., the Washington State Supreme Court has deviated from the flexible approach set forth by the United States Supreme Court in Upjohn Co. v. United States.
In Upjohn, SCOTUS ruled that attorney-client privilege applies to communications between corporate counsel and non-managerial employees and that a case-by-case analysis is necessary to determine whether applying privilege protection helps “to encourage full and frank communication between attorneys and their clients.”
For the state court, the sticking point is the current employment versus post-employment relationship. Because the court believed that Upjohn presupposes that the attorney-client communications occur within the corporate employment relationship, it declined to extend privilege to post-employment communications with former employees. The state court determined it’s apples and oranges: concerns that arise with current employees differ from those associated with former employees.
The NLR points out that by the Newman court pairing the end of privilege with the end of employment, the level of predictability for all parties is now high. And, not surprisingly, it also advises that counsel should proceed with caution when communicating with former employees.