A Washington appellate court restricted privileged communications between an attorney and a corporate client to employees of that client, but not to the client’s nonemployee agents.
Last August, in Hermanson v. Multi-Care Health Systems, Inc., a split panel decided that the general counsel for a hospital may have privileged communications with all the employees in the hospital, including non-physicians, such as nurses. However, that privilege did not extend to a physician who was considered an agent of the hospital and was not classified by the hospital as an employee.
In the case, a man sued a hospital for disclosure of his blood alcohol content to police officers. The complaint named ten nurses employed by the hospital, but it did not include the treating physician. Still, the hospital sought to protect communications between its counsel and the physician, reasoning that, though he was an agent, he was the “functional equivalent of an employee.”
Although other jurisdictions such as the Ninth Circuit have allowed communications between corporate counsels and agents who act as employees to be privileged, the Washington appellate court refused to extend these privilege-protections. The court acknowledged that the attorney-client privilege is one of the oldest privileges in common law; however, it “declined to expand the scope of corporate attorney-client privilege beyond the employer-employee relationship.” The court reasoned that the hospital could still defend itself through conversations with employees, “medical records, depositions, or written questions, or informal interviews with both counsel present.” The court also reinforced that communications with employee-nurses of the hospital, though not physicians, are still protected.
Read the full opinion here.
