Confidentiality Exception Does Not Allow Disclosure

The Washington State Court of Appeals Division Three has held that a defendant in a legal malpractice is precluded from disclosing client confidential information 

The Estate of Bert Stennes (Estate) filed a lawsuit against attorney Alexander Thomason alleging legal malpractice, negligence, breach of fiduciary duty, undue influence, fraud, unjust enrichment, and constructive fraud. Mr. Thomason had represented and advised Bert Stennes (Bert) and Bert’s son, Michael Stennes (Mike), on various legal matters. Bert and Mr. Thomason also engaged in business transactions prior to Bert’s death. The Estate alleged Mr. Thomason and Bert had an attorney-client relationship prior to and during the time of their business relationship.

During the pendency of the lawsuit, Mr. Thomason brought a motion for in camera review (motion) of Mike’s confidential client file. Mr. Thomason alleged the contents of Mike’s client file would disprove that he represented Bert in the years prior to their business relationship. Mike appeared before the court to oppose the motion, asserting the materials Mr. Thomason sought to disclose were privileged and to contest personal jurisdiction. Mike requested CR 11 sanctions against Mr. Thomason or an award of attorney fees on equitable grounds. The court denied the motion on jurisdictional grounds and declined to award Mike attorney fees.

Mike appeals, arguing the court erred in denying his request for attorney fees. Mr. Thomason cross appeals, arguing denial of his motion based on a lack of personal jurisdiction was error. He also urges us to reach the merits of the motion.

In the published portion of this opinion, we reverse the trial court’s ruling that it lacked personal jurisdiction over Mike and hold that Mr. Thomason is precluded from disclosing Mike’s confidential client file under the Rule of Professional Conduct (RPCs). We affirm the trial court’s order on attorney fees in the unpublished section.

Background

Mr. Thomason represented Bert and Mike on various matters prior to Bert’s death in August 2017. Mr. Thomason represented Mike in a dissolution of marriage proceeding between 2012 and 2016.2 Bert paid the attorney fees billed for Mike’s divorce even though many invoices were addressed to Mike.

In 2013, Mr. Thomason and Bert engaged in a transaction wherein Bert loaned Mr. Thomason approximately $400,000 to finance Mr. Thomason’s purchase of real property in Pateros, Washington. Bert forgave the loan a few years later. Though Mr. Thomason did legal work for Bert, the parties dispute whether Mr. Thomason represented him on or before the 2013 business transactions.

Litigation ensued between Mike and the Estate in 2019.

Disclosure

Mr. Thomason argues he is permitted to disclose Mike’s confidential, privileged client file in defense of Mike’s claim that he was representing Bert in 2012 and 2013. Mr. Thomason argues he may disclose Mike’s client confidences under RPC 1.6(b)(5) because he is in controversy with Mike and because the proceeding concerns his representation of Mike. We disagree.

Mr. Thomason’s argument focuses on his defense to Mike’s claim against him rather than a defense to the controversy between he and the Estate. Under the unambiguous terms of the rule, an exception to the general prohibition against revealing client confidences arises in a controversy between the attorney and the client. A controversy between the client and the attorney must exist before the attorney can disclose information to establish a defense to a claim by the client. Here, there is a controversy between the Estate and Mr. Thomason. However, Mike is merely a witness for the Estate who has submitted declarations in support of the Estate’s position regarding Mr. Thomason’s representation of Bert. In his briefing, Mr. Thomason recognized, “Mike is providing testimony in that lawsuit against Mr. Thomason.” Resp’t Reply Br. at 30. 

Mr. Thomason directs us to the joint prosecution agreement as evidence that he and Mike are in controversy within the meaning of RPC 1.6(b). We disagree. Again, Mr. Thomason seems to recognize the joint prosecution agreement is not “a skeleton key, granting access to privileged material of all its signatories” and that by signing it, Mike is going to provide “key testimony for [Bert’s Estate], and is entitled to share in any proceeds.” Resp’t’s Reply Br. at 31. The joint prosecution agreement does not ascend Mike beyond his status as a witness for the Estate.

Mike and Mr. Thomason are not in controversy within the meaning of RPC 1.6(b)(5).

Mr. Thomason next argues disclosure under RPC 1.6(b)(5)’s “to respond to allegations in any proceeding concerning the lawyer’s representation of the client” exception applies. We disagree.

The allegations in the Estate’s complaint do not concern Mr. Thomason’s representation of Mike but instead concern his representation of Bert. The Estate alleges Mr. Thomason represented Bert in 2012 and 2013, prior to and while the two engaged in substantial business transactions with one another. Mr. Thomason alleges he only represented Mike during this time, and he attempts to use his defense (that he only represented Mike) to satisfy the portion of RPC 1.6(b)(5) requiring the proceeding concern “the lawyer’s representation of the client.” However, no one is disputing that Mr. Thomason represented Mike during 2012 and 2013; the only dispute is whether he represented Bert during this time period. Thus, the allegations in this proceeding concern Mr. Thomason’s representation of Bert. RPC 1.6(b)(5) does not allow Mr. Thomason to reveal the contents of Mike’s client file.

(Mike Frisch)