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Dietz v. Doe

Supreme Court of Washington · 1997 · Evidence
131 Wash. 2d 835 (1997)
Updated
EvidenceAttorney-client privilegeRCW 5.60.060(2)client identitylegal advice exceptionwaiverburden of proofin camera proceedings

Facts

After a fatal automobile accident, a newspaper reported that attorney Craig Ritchie was handling the case of a motorist sought for questioning in connection with the accident. The Dietz family and estate, unable to identify that motorist, sued an unknown driver as John Doe and moved to compel Ritchie to disclose the name and address of his client involved in the accident. Ritchie refused, asserting attorney-client privilege. The record did not establish how the newspaper obtained its information, the precise nature of Doe's consultation with Ritchie, or whether an attorney-client or other protected relationship actually existed.

Issue

Must an attorney disclose the identity of a putative client connected to an automobile accident, or is that identity protected by attorney-client privilege when disclosure would reveal the substance of the client's communication? If privilege otherwise applies, was it waived by disclosures reflected in a newspaper story?

Rule

Under RCW 5.60.060(2), an attorney-client privilege protects communications made by the client and advice given thereon in the course of professional employment. A client's identity is ordinarily not privileged, but Washington recognizes a narrow legal advice exception: the identity need not be disclosed where revealing it would necessarily reveal the essence or substance of the confidential attorney-client communication. The party asserting the privilege bears the burden to prove the existence of an attorney-client or other protected relationship, that the communication falls within the privilege, and that the protection was not waived. The court adopted Wigmore's eight-part formulation for the legal advice exception: (1) the client sought legal advice; (2) from the attorney in his or her capacity as an attorney; (3) the communication was made to obtain legal advice; (4) in confidence; (5) by the client; (6) the client wished to protect the client's identity; (7) from disclosure; and (8) the protection was not waived.

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Test yourself

One of 10 multiple-choice questions for this case. Pick an answer to see why.
In Spokane, a wrongful-death plaintiff subpoenas attorney Lena Ortiz to identify a person who paid her a consultation fee two days after a warehouse explosion. The only showing is that the person met with Ortiz and later hired her. Ortiz argues that a client’s identity is always protected by attorney-client privilege.

How should the court rule?

Explanation. Under the majority rule, a client’s identity is ordinarily not privileged. The narrow legal advice exception applies only if revealing the identity would necessarily reveal the essence or substance of the confidential attorney-client communication. A blanket assertion that identity is always privileged fails.