In a highly contested divorce or custody battle, just one strategy email in the hands of the other party can destroy your case – and both your and your client’s credibility.
By Gary R Stenzel, Attorney at Law
I am going to start this discussion off with a hypothetical that is somewhat extensive but necessary to shape the issues. The facts in this case are very common and lead to a discussion of email communications between attorney and client.
Email and Discovery: Litigation Hypothetical
In this litigation hypothetical the husband and wife are both professionals who are very intelligent and have highly prestigious government positions. The history of the parties family dynamics clearly showed that the mother was home most of the time to care for their son because her job could be done from her laptop and phone at home; in contrast, the father who was gone weeks at a time, he flew all around the West as part of his employment. He was also known to be highly controlling and abusive, and also had a history of passively avoiding any help for the mother in regard to decisions for their child, making him a poor candidate for joint decision making and shared custody. He did not take their child to the doctor often and did not set up any daycare or attend many of their child’s school activities. Mom had a clear history of primary care.
A point of significance in this hypothetical is that they each have their own laptops and email accounts. The father in particular, because he traveled around the West, had a mini-iPad he used for emailing family and friends. However, just before the divorce was filed he gave this mini-pad to their now 8-year-old son opting for a small more powerful laptop.
Upon separation, it was clear that the father was going to try and obtain as much parenting time as possible, which created a highly contested custody issue and a GAL was appointed, along with a counselor to assist the parties in solving parenting problems. Both parties hired very aggressive family law attorneys. In this hypothetical, the father’s counsel was famous for attempting to posture his cases and try and use his experience to persuade and cause assigned professionals to take their sides in the matter.
Unbeknown to the mother or her counsel, the husband’s counsel intentionally planned a concerted and focused “attack” on the GAL and purposeful grooming of the counselor to try and persuade her in the father’s direction. Some of the things that were done were borderline ethical; for example, they attempted to increase ex-parte communication with the counselor and consistently provided her with damaging, and unsupported allegations about the mother’s alleged attempts to alienate the father from their son. This plan also included sending flowers and gift boxes to the counselor, making strategic phone calls to her to provide negative innuendo about the mother, and otherwise flood her with the father’s unsubstantiated theories in the case, The father and his attorney also planned to attack the GAL by trying to show conflicts of interest and otherwise intentionally keep her in the dark about the father, and/or passively-avoid helping her with her report. Many, if not most of the things the father and his counsel planned did not deal with the best interests of the child and frankly seemed very close to witness tampering and/or unethically influencing a court-appointed expert.
To place a cap on this hypothetical the communications between the father and his attorney about all these plans were memorialized by emails through the father’s email account. Those emails were extensive and even contained some emails to the counselor showing their rather unfair and potentially borderline attempts to persuade her in their direction.
As this matter moved to trial the father and his attorney successfully had the GAL removed due to a somewhat beefed up conflict issue, leaving just the, now biased counselor to testify about how wonderful and considerate the father was, versus the mother, who she was convinced was brainwashing their child against the father. At trial, the counselor testified glowingly about the father –who was parenthetically very handsome – and spoke against sole custody to the mother. The judge seemed to have little or no choice but to follow the counselor’s recommendations since she was the only expert left. 50/50 custody was ordered, with several restrictions placed on the parties about decision making, that mostly focused on an attempt to corral the mother and her alleged propensity (in the counselor’s mind) to alienate their son from his father.
Now for the heart of the hypothetical that creates this discussion.
After the final parenting plan was ordered by oral ruling, and before the final papers could be presented, the mother was cleaning up her house from her son’s toys and activities and as she cleaned she noticed that his father’s old mini-pad was showing what looked an email posts between her ex-husband and his counsel which had a titles like, “Influencing the GAL – How to” or “The GAL is Toast”. Her blood pressure rose and her heart beat faster as she slowly picked up the pad to look closer. She scrolled the screen and in increasing anger, read instructions by her ex-husband’s counsel on how to shape the case, and influence the counselor to testify on his behalf and against the mother. Such things as “Sending the counselor a ‘care package'” that included confidential information about her without all the facts, along with other focused records about how bad a person she was. This obviously was sent without allowing her to respond and seemed clearly planned by her ex and his counsel to strategically give to the counselor a very bad opinion of her. After reading a few of the emails she contacted her counsel who also read them and she filed a Motion to Reconsideration of the 50/50 parenting plan ruling. She based this motion on fraud, misrepresentation, and substantial irregularities under CR 59.
After the first argument to the judge, the judge ruled that the emails were not confidential since the father had assumed the risk of disclosure, and had also given his mother his email password and access to his account and mail. However, she gave the father additional time to respond and eventually ruled in the father’s favor that these emails were barred because of attorney-client privilege and struck the motion and sanctioned the mother. The father also filed a bar complaint against the mother’s counsel, which will be discussed as well.
Email and Discovery: Law and Argument
This discussion deals with attorney-client privilege in the context of this hypothetical, email account access, witness tampering or ways to remove the veil of confidentiality of alleged attorney-client confidentiality, and other factors dealing with the issues in the hypo.
The Attorney-Client Privilege in Washington is not a complete bar to all attorney-client communications.
The Attorney-Client privilege statute in Washington State is RCW 5.60.060. Section (2)(a) of that statute provides that an “attorney or counselor shall not, without the consent of his or her client, be examined as to any communication made by the client to him or her, or his or her advice given thereon in the course of professional employment.” See Dietz v. Doe, 131 Wash.2d 835, 842, 935 P.2d 611 (1997).
This privilege allows the client to freely communicate with their counsel without fear of having to tell anyone about the communication. Id. It applies to all communications and advice between the attorney and his/her client and includes any documents that contain their joint communications. Id. However, this privilege can be waived. Id; see also 8 WIGMORE, EVIDENCE § 2292, at 554 (1961). Although it is generally assumed that only the client can waive this privilege, the attorney, by their actions can waive this as well, or the actions of the client can also waive that privilege, by what they do with the communication. See e.g. David B. SITTERSON d/b/a DBS Financial Services, Appellant/Cross-Respondent v. EVERGREEN SCHOOL DISTRICT NO. 114, a municipal corporation, Respondent Cross-Appellant 147 Wn.App. 576, 196 P.3d 735 (2008).
A party or his attorney may also waive this privilege for inadvertent disclosure where the private communications go to a third party by how it is handled by either the attorney or his client. Id. This is called “inadvertent disclosure” and Washington State recognizes this kind of waiver of this privilege. Id. Inadvertent disclosure is when a privileged communication is disseminated to the public or third party by whatever means is used, either in written form or electronic form, such as when the disseminator does not think about what they are doing when they disseminate the confidential material. Id. The burden falls on the party claiming the privilege to show that the privilege still applies even though they mistakenly sent the material in a form that third parties can see it. Id; and see e.g. VersusLaw, Inc. v. Stoel Rives, LLP, 127 Wash.App. 309, 332, 111 P.3d 866 (2005), review denied, 156 Wash.2d 1008, 132 P.3d 147 (2006).
The Evergreen School case, supra goes on in its analysis to describe the differing standards in analyzing the application of this rule. They point out that there are three distinct approaches to this privilege. First, there is the “absolute waiver” theory that requires complete waiver that is clear before it can be waived; Second, there is the “Absolute no-waiver” approach; and Third, there is the “balanced” approach. Id.
Absolute waiver: here inadvertent disclosure never waives this privilege. This approach was not supported by the Evergreen case court;
No-waiver: this approach limits the privilege to the issues it was intended to address and that is all. The Evergreen court also did not support this approach either;
Balanced approach: this approach was favored by Evergreen citing the following cases to support this conclusion: “1 MCCORMICK ON EVIDENCE § 93, at 373; see, e.g., Harp v. King, 266 Conn. 747, 768-69, 835 A.2d 953 (Conn.2003); Save Sunset Beach Coal. v. City & County of Honolulu, 102 Hawai‘i 465, 486, 78 P.3d 1 (Haw.2003); Elkton Care Ctr. Assocs. Ltd. P’ship v. Quality Care Mgmt., Inc., 145 Md.App. 532, 545, 805 A.2d 1177 (Ct.Spec.App.2002).
The balanced approach uses a five-part analysis to determine if the inadvertent disclosure is a waiver or not. That approach comes from the federal case of Alldread v. City of Grenada, 988 F.2d 1425 (1993) wherein the five factors are as follows: (1) the reasonableness of precautions taken to prevent disclosure, (2) the amount of time taken to remedy the error, (3) the scope of discovery, (4) the extent of the disclosure, and (5) the overriding issue of fairness. Citing Alldread, 988 F.2d at 1433. This approach is meant to be a flexible approach taking into consideration modern litigation and communication, such as emails, PDF’s, and other newer communication modalities, as well as the size of the litigation.
In this hypothetical, using the balanced approach and the five factors to determine whether the father waived his attorney-client privilege by allowing his child to have his Kindle, which he knew had email capabilities, and leaving it in his estranged wife’s home, seems to mitigate in favor of the finding that he waived his privilege by what is called this “inadvertent disclosure”. However further analysis is necessary. First, did the father take any precautions to protect the mini-pad from disclosing emails, especially in a highly contested matter, knowing that the pad had access to his emails; second, were there any attempts to remedy the pad situation; third, was this disclosure in the midst of discovery; in this case, it was not. Fourth, the extent of the disclosure is analyzed. If the emails contained any and all email communications between the father and his attorney, up to date, the court may say that he clearly did not intend to disclose these and it was simply a mistake in judgment for which the privilege should not be waived. In our hypothetical, the emails that were looked at were just a few strategy emails and not all current emails. However, the way the pad was set up, it could have easily obtained any and all his emails but because he changed his email account, this precluded access to more current communications. Finally, five, which asks if it is fair for the wife to have access to these emails. Although it may not be fair to the husband for her to have these confidential emails, their content was important for the court to see because they disclosed that his estranged husband was intending to tamper with expert witnesses and/or influence them without her knowledge. Therefore, the fairness of this access mitigates in her favor because of the important public policy issues of preventing improper attempts to influence witnesses.
All in all, using the balanced approach it seems that the Respondent’s inadvertent leaving of the pad with his child in his estranged wife’s home, with its capabilities to access his email account, was a waiver of this privilege – just as his giving the laptop to a third party unrelated to the legal matter.
The emails found by the wife seem to be exceptions to the attorney-client privilege because of their potential criminal content.
Besides an inadvertent waiver of the attorney-client privilege, Washington Law also allows for what best can be called the “misconduct or fraud exception” waiver. The misconduct, misrepresentation, “fraud exception to the attorney-client privilege is deeply rooted in our jurisprudence” See Cedell v. Farmers Ins. Co. of Washington, 176 Wn.2d 686, 295 P.3d 239 (2013) and ROBERT H. ARONSON, THE LAW OF EVIDENCE IN WASHINGTON § 501.03[h][ii], at 501-24 (4th ed.2012) (see also, Craig v. A.H. Robins Co., 790 F.2d 1, 5 (1st Cir.1986)).
This exception to this privilege is a “two-step approach or analysis”. Id. As discussed in Cedell:
“The first step is to invoke an in-camera [sic] review and requires a showing that a reasonable person would have a reasonable belief that an act of bad faith tantamount to civil fraud has occurred. Barry, 98 Wash.App. at 208, 989 P.2d 1172; Escalante, 49 Wash.App. at 394, 743 P.2d 832; see also Seattle Nw. Sec. Corp., 61 Wash.App. at 740, 812 P.2d 488. The purpose of the in-camera [sic] review is to determine ‘whether the attorney client-privilege applies to particular discovery requests, and whether appellants have overcome that privilege by showing a foundation in fact for the charge of civil fraud.’ Escalante, 49 Wash.App. at 394, 743 P.2d 832. Escalante suggests if an insurer engages in bad faith in an attempt to defeat a meritorious claim, bad faith was tantamount to civil fraud. See Id. (citing United Servs. Auto. Ass’n v. Werley, 526 P.2d 28 (Alaska 1974)).” Cedell, supra.
If this approach was used in our hypothetical, it would show a clear attempt to influence witnesses, especially the counselor and lead to the conclusion that this privilege does not apply in this case. However, Cedell indicates that an “in-camera” review is only necessary if the judge feels it is necessary, as they indicated,
The in-camera [sic] inspection is a matter of trial court discretion. Barry, 98 Wash.App. at 206, 989 P.2d 1172 (citations omitted) (citing Escalante, 49 Wash.App. at 394, 743 P.2d 832; Seattle Nw. Sec. Corp. v. SDG Holding Co., 61 Wash.App. 725, 740, 812 P.2d 488 (1991)).
Therefore, just because the judge in the case does not do an “in-camera” review, it does not mean that the privilege is not waived because of the illegal or unethical nature of the emails.
With regard to tampering, RCW 9A.72.120 states,
- A person is guilty of tampering with a witness if he or she attempts to induce a witness or person he or she has reason to believe is about to be called as a witness in any official proceeding or a person whom he or she has reason to believe may have information relevant to a criminal investigation or the abuse or neglect of a minor child to:
(a) Testify falsely or, without right or privilege to do so, to withhold any testimony; or
(b) Absent himself or herself from such proceedings; or
(c) Withhold from a law enforcement agency information which he or she has relevant to a criminal investigation or the abuse or neglect of a minor child to the agency.
- Tampering with a witness is a class C felony.
- For purposes of this section, each instance of an attempt to tamper with a witness constitutes a separate offense.
“Tampering with a witness” is when someone tries to induce a witness to testify a certain way. This crime has also been defined further as any attempt to “influence” a witness. See State v. Sanders, 66 Wn.App. 878, 833 P.2d 452, (Div. 1 1992); State v. Thomas, 158 Wn.App. 797, 243 P.3d 941, (Div. 2 2010) the concurring opinion indicated that attempts to influence a witness equaled tampering; State v. Skuza, 156 Wn.App. 886, 235 P.3d 842, (Div. 2 2010); State v. Carter, 154 Wn.2d 71, 109 P.3d 823, (2005) attempts to influence a witness is witness tampering. As they said in the case of Sarausad v. State, 109 Wn.App. 824, 39 P.3d 308, (Div. 1 2001), “Moreover, to be guilty of a violation under 9A.72.090(1)(a), one must intend to “influence” the testimony of a person upon whom a benefit is conferred. “Influence” means “to affect or alter the conduct, thought or character of by indirect or intangible means; … to have an effect on the condition or development of: determine partially: modify.” Webster’s (3rd) International Dictionary 1160 (1969). “Bribe” refers to “a price, reward, gift, or favor bestowed or promised with a view to pervert the judgment [39 P.3d 321] or corrupt the conduct[.]” Id. at 275. Thus, in the context of the bribery statute, to intend to influence a witness’s testimony connotes an intention to alter the truthful nature of that testimony or to thwart the ends of justice.” Id.
Attempting to influence steer a witness toward your version of the truth, no matter how subtle, or quiet, is witness tampering. In this hypothetical, the emails proffered between the husband and his counsel were all about persuading experts to testify in their favor, and seem to fit the definition of witness tampering or at least an attempt to influence her testimony as the only professional in the case.
Further in this hypothetical, the counselor’s own testimony was clearly biased against the mother. At a minimum, the assigned judge should look at the emails to see if they fit the misconduct provisions of the law as to witness tampering.
In this hypothetical, the emails between the father and his counsel appear to potentially violate the RPC’s.
Beside the attempts to influence the counselor to testify on his client’s behavior, the attorney may have also violated the ethics rules. RPC 3.3 states,
CANDOR TOWARD THE TRIBUNAL
(a) A lawyer shall not knowingly:
(1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer;
(2) fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a
criminal or fraudulent act by the client unless such disclosure is prohibited by Rule 1.6;
(3) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by the opposing party; or
(4) offer evidence that the lawyer knows to be false.
(b) The duties stated in paragraph (a) continue to the conclusion of the proceeding.
(c) If the lawyer has offered material evidence and comes to know of its falsity, the lawyer shall promptly disclose this fact to the tribunal unless such disclosure is prohibited by Rule 1.6.
(d) If the lawyer has offered material evidence and comes to know of its falsity, and disclosure of this fact is prohibited by Rule 1.6, the lawyer shall promptly make reasonable efforts to convince the client to consent to
disclosure. If the client refuses to consent to disclosure, the lawyer may seek to withdraw from the representation in accordance with Rule 1.16.
(e) A lawyer may refuse to offer evidence that the lawyer reasonably believes is false.
(f) In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer that will enable the tribunal to make an informed decision, whether or not the facts are adverse.
Candor to the tribunal is a very important rule of conduct for an attorney. Some say it is not so much about telling the truth, it is about maintaining the integrity of the court system. In re Disciplinary Proceeding Against Carmick, 146 Wn.2d 582, 48 P.3d 311, (2002); In re Disciplinary Proceeding Against Tasker, 141 Wn.2d 557, 9 P.3d 822, (2000); 124-6, In re Disciplinary Proceeding Against Poole, 156 Wn.2d 196, 125 P.3d 954, (2006) [See footnotes therein].
The attorney in this case intentionally attempted to violate sections 1, 2, 3, & 4 by trying to influence a witness to say his client was the best parent over the mother. This plan was outlined in the emails alleged to be confidential. At a minimum, these emails would have been accessible to the bar association in an ethics investigation.
In our hypothetical, in addition to RPC 3.3 the attorney also seems to attempt to violate RPC 8.4 for which precludes falsities to the court, misrepresentations about facts, attempts to influence others, etc. Clearly, our courts have said this is one of the more egregious problems an attorney can have. The father and his attorney’s attempts to influence a key witness to give their version of the facts, without allowing the mother to respond, seems to violate this RPC. This kind of violation is seen as a very serious breach of ethics by the Bar. See e.g. In re Disciplinary Proceeding Against Jackson, 180 Wn.2d 201, 322 P.3d 795 (2014).D. Washington State Bar Association involvement.
Of course, this is a hypothetical, but in this case, the bar exonerated the mother’s counsel indicating that the father had waved the privileged nature of the emails by giving his mother access to the emails. At least in this hypo the mother’s counsel was given a pass by the WSBA ethics department.
Email and Discovery: Discussion
The father and his attorney, in this hypothetical, intentionally planned to influence the court’s appointed counseling expert. None of the things that they planned dealt with providing honest and clear input about the mother, but was all directed at influencing the witness in favor of their desired outcome. However, but for the fact that the father’s mini-pad was left with the mother and their child, none of this would have come to light. Therefore, his meticulous planning to influence this key witness was potentially derailed by his failure to consider this small unique fact. Now, his attorney may find himself the subject of a bar investigation and possible sanctions. They could also find themselves facing criminal charges for tampering with a witness.
Washington’s law on attorney-client privilege is not a black and white issue. Not everything is privileged, nor does every communication stay confidential in this day and age of easy email access, and multiple devices. Leaving a laptop or even a new phone on and open to your emails knowingly may waive this privilege, therefore, diligence is vitally important. An accidental “bcc” or “cc” of an email to a third party can lead to unintended consequences of disclosing confidential material by mistake. It is wise counsel to try to avoid the inadvertent disclosure of your communications by use of strict rules of dissemination, not only with staff but also with your clients in your initial meetings. And although our hypothetical in this case is extreme, just one strategy email in the hands of the other party in a highly contested divorce or custody battle can destroy your case and cast a shadow over the attorney and his client’s credibility.
The moral, of course, is do not do things that are unethical and potentially illegal as to witnesses, most of all avoid memorializing such intent and instructions in written communications since even talking hypothetically about such inappropriate things can lead to a misunderstanding by the court. Finally, in the initial consultation with your client discuss things that you will not do, that are unethical. Most of all make it clear that you will not communicate about such things since the content alone may be a basis to cause this important privilege to disappear. At the same time make it clear that no emails should be accessible by their estranged spouse or third party family members. It may even be beneficial for your client to create their own separate attorney-client email account to ensure the safety of communications.
Gary R Stenzel has argued cases in the Federal District Court, Eastern District of Washington Bankruptcy Court, Idaho Supreme Court (as an intern), Oregon Circuit Court, and Washington Court of Appeals. He has participated in over 200 family law trials, has handled multi-million dollar divorces, and argued thousands of motions. www.familylawspokane.com
Matrimonial Practice In The Digital Age: Part 1 of 2
Deconstructing Electronic Evidence: What Is It in Layperson’s Terms; Sources of Evidence and Electronic Evidence Procedure.