North By Northwest

The Washington State Court of Appeals Division III affirmed the denial of sanctions in a voluntarily dismissed suit where the plaintiff had sued his former wife and her firm for legal malpractice and disclosure of confidential information

Andrea Clare is an attorney. Kevin Clare is employed as a crop duster pilot and has renewed his pilot license with FAA form 8500 every three years since 1999 (except for one gap in 2005). They married on June 25, 2005, and separated in 2016.

Mr. Clare alleges that in 2008, the FAA renewal form changed. Instead of seeking conviction information, the new form sought arrest information of anyone renewing their license. Since he had been arrested in 1998 for a DUI, Mr. Clare asked Ms. Clare for legal help answering the form. He contends that Ms. Clare expunged the arrest from his record and told him that he did not need to disclose the arrest on his FAA forms.

Many years later, during a contentious divorce proceeding, Ms. Clare e-mailed the GAL investigating the parties’ parenting plan proposals. In this e-mail, Ms. Clare indicated that the GAL should investigate whether Mr. Clare made false statements to the FAA regarding his mental health, substance abuse, and arrest history. Ms. Clare allegedly shared Mr. Clare’s information with George Telquist, her law partner, who also represented her in the divorce. Ms. Clare and Mr. Telquist encouraged the GAL to notify the FAA that Mr. Clare falsified information on his renewal application, particularly details of his medical records and that he had been charged with a DUI in 1998. Both public and private details of Kevin’s license renewal applications, DUI, and medical records were provided to the GAL. Ultimately, Mr. Clare self-reported to the FAA, and the FAA instituted its own proceedings.

On December 17, 2018, shortly before the divorce case went to trial, Mr. Clare filed this collateral lawsuit alleging legal malpractice and asserting that Ms. Clare, Mr. Telquist and the Telquist law firm violated attorney-client privilege in sharing his confidential personal information with the GAL.

Telquist filed two sanctions motions, one before voluntary dismissal and one after.

As to alleged frivolousness the motion was properly denied

The record supports the trial court’s conclusion. The issues presented were at the very least debatable. Ms. Clare conceded that she assisted Mr. Clare in expunging his DUI record. Mr. Clare and Ms. Clare disagree about the factual existence of an attorneyclient relationship between them and the factual application of the attorney-client privilege under RPC 1.6 to various pieces of information that she allegedly conveyed to Mr. Telquist and the GAL. Whether an attorney-client relationship existed was a disputed issue of fact. Whether Mr. Clare could prevail for an alleged violation of that relationship was not well settled and presented novel issues of law.

(Mike Frisch)