Attorney-client Consultation Privileges
It is common knowledge that communications between an attorney and client are privileged and not usually subject to disclosure to litigation adversaries. One of the formal requirements for the attorney-client privilege to apply is the establishment of an attorney-client relationship. E.g., Dietz v. Doe, 131 Wn.2d 835, 843, 935 P.2d 611 (1997). But what happens if a prospective client reveals sensitive information to an attorney as part of a consultation to see if they want to hire the attorney, and then hires a different attorney instead. No attorney-client relationship was formed. Is the attorney free to reveal the client’s sensitive information to others?
Although the issue is rarely litigated, courts have held that “[c]ommunications from prospective clients with the aim of obtaining legal services are generally covered by the attorney-client privilege, even if the attorney is not ultimately retained.” Bolding v. Banner Bank, 2021 WL 1530998, at *2 (W.D. Wa. 2021).
There is nothing anomalous about applying the privilege to such preliminary consultations. Without it, people could not safely bring their problems to lawyers unless the lawyers had already been retained. The rationale for this rule is compelling, because no person could ever safely consult an attorney for the first time with a view to his employment if the privilege depended on the chance of whether the attorney after hearing his statement of the facts decided to accept the employment or decline it.
Id. (quoting Barton v. U.S. Dist. Ct. for Cent. Dist. of Cal., 410 F.3d 114, 1111-12 (9th Cir. 2005)). The Washington Supreme Court has stated that the relationship between attorney and “prospective client” is a “protected relationship” for purposes of the attorney-client privilege. Dietz, 131 Wn.2d at 845. Other authorities are in agreement. 5A Wash. Prac. § 501.12, Tegland, Karl, Evidence Law & Practice (“If an attorney speaks with a prospective client and the prospective client decides to retain the attorney, communications between the two prior to the time the attorney was formally retained are normally privileged.”) (citing Broyles v. Thurston County, 147 Wn. App. 409, 443, 195 P.3d 985 (2008)); see Bays v. Theran, 418 Mass. 685, 639 N.E.2d 720, 723-24 (1994) (for purposes of privilege, attorney-client relationship “may be established through preliminary consultations, even though the attorney is never formally retained and the client pays no fee”); Todd v. State, 113 Nev. 18, 931 P.2d 721, 725 (1997).
Therefore, a client can safely disclose sensitive information to an attorney during a consultation without fear that the information will be disclosed if the client hires a different attorney instead.