Dietz v. Doe
In Dietz v. Doe (Wash. 1997) 131 Wn.2d 835, 935 P.2d 611, a fatal hit-and-run vehicular accident occurred when a driver made an unsafe turn.
A newspaper article reported the unknown driver had retained an attorney in connection with the investigation.
The victim's family determined the attorney's identity and filed a civil suit against John Doe, the unknown driver.
In the course of pretrial discovery, the family filed a motion to compel the attorney to disclose the name of his client.
The family's motion admitted that disclosure of the client's name would have criminal consequences, but asserted that such disclosure would not establish the level of the unknown driver's involvement in the fatal accident.
The attorney refused to disclose the client's name, and the trial court found disclosure of the client's identity was precluded by the attorney-client privilege. (Id. at p. 614.)
The Washington Supreme Court noted the majority rule that a client's identity is not privileged.
Dietz examined the Ninth Circuit cases, characterized Baird as creating the "legal advice" exception to the majority rule, and adopted Baird to prevent disclosure of a client's identity under particular and narrow circumstances.
Dietz adopted an eight-part test set forth in Wigmore:
"(1) The client must have sought legal advice;
(2) from the attorney in his or her capacity as an attorney;
(3) the communication must have been made in order to obtain legal advice;
(4) in confidence:
(5) by the client;
(6) the client must wish to protect the client's identity;
(7) from disclosure;
(8) the protection must not have been waived." ( Dietz v. Doe, supra, 935 P.2d at p. 618, citing 8 Wigmore, Evidence, 2292, 554 (McNaughton rev. 1961).)
Dietz held the circumstances indicated that revelation of the client's identity might implicate the content of the client's communication with the attorney.
The attorney might not be able to reveal the client's name without simultaneously revealing the client told him he was involved in the fatal accident.
"The revelation could unavoidably convey some of the substance of the communication between the client and the attorney, and thus violate the attorney-client privilege." (Dietz, supra, 131 Wn.2d 835, 935 P.2d 611, 618.)
Dietz declined to reach the issue, however, because there was insufficient evidence to establish the reason the client contacted the attorney, and remanded the matter for further proceedings.