Washington Law Review

Comment

Defining Attorney-Client Privilege for the Independent Contractor: A Case for the Functional Equivalent Doctrine in Washington

| 93 Wash. L. Rev. Online 1

Abstract: Corporations increasingly rely on independent contractors to fulfill basic organizational needs. This increased reliance has created a number of legal issues, one of which is the level of privilege extended to communications between contractors and legal counsel for the contracting corporation. This issue is particularly relevant for corporations in the “gig economy,” like Uber, Lyft, and Postmates, which rely on independent contractors for fundamental business functions. Washington State courts have yet to decide whether independent contractors are entitled to attorney-client privilege regarding these conversations. Generally, Washington courts follow the U.S. Supreme Court’s “Upjohn rule,” which protects communications between corporate counsel and non-executive employees in certain, somewhat vague situations. The U.S. Court of Appeals for the Eighth Circuit and Colorado Supreme Court have adopted a practical legal test to address this issue, entitling a corporation’s independent contractors to privilege with the corporation’s counsel if they are “functionally equivalent to” or “indistinguishable from” the corporation’s employees. This Comment argues that Washington State courts should adopt the Colorado Supreme Court’s extension of the functional equivalent doctrine. Colorado’s approach reflects the fluid state of twenty-first century employment relationships, which increasingly deviate from the traditional employer-employee model.

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