Special Reports

City considers lifting veil - but privilege, confidentiality laws could get in way

It's vital to what attorneys do - protecting their clients' ability to tell the truth so they can give them good legal advice.

But the attorney-client privilege - which keeps lawyers from divulging secrets unless clients say it's OK - is never simple.

Today, Tacoma City Council members will consider lifting that veil to let city attorneys talk about issues within the David Brame case, but it might not be only their call to make.

"The hidden issue is they've got conflicting clients," Seattle University law professor John Strait said. "The fact that Brame is dead doesn't change the fact that (the city attorney's office) owes him a responsibility."

Strait said the city created the problem when the same attorney represented the city and Brame in a discrimination lawsuit in 1999. Within that litigation, allegations surfaced that Brame had raped a woman in 1988.

Sharing an attorney created a right to secrecy for both the city and Brame, even after his death.

While the City Council may be able to lift the privilege for itself, someone from Brame's estate would have to give city attorney Robin Jenkinson the right to talk about his secrets, assuming Brame hadn't done so already.

The intricacies go beyond that.

For instance, though Tacoma is the client, who speaks for the city? The City Council, the mayor, the city manager, the acting city manager?

Plus, it's not just the 100-plus-year-old law governing attorney-client privilege that keeps attorneys from repeating what their clients tell them. Lawyers' rules of professional conduct are broader in proscribing that attorneys not divulge anything that might be even embarrassing for a client.

The Constitution plays a role, too. The Fifth Amendment allows people to refuse to discuss anything incriminating; the Sixth Amendment guarantees a right to effective legal representation.

Citing attorney-client privilege, Jenkinson's staff has refused to discuss reports that assistant city attorney Shelley Kerslake knew about the rape allegation against Brame 11 months before he was appointed chief.

They also declined to say how they responded to a city human resources recommendation April 25 to take Brame's gun and badge the day before he killed his wife, Crystal, and then himself.

City officials might want to resolve questions about the Brame case by letting attorneys talk openly about who knew what, and when.

From the perspective of Brame's estate, however, embarrassing details about him could hurt his family, even if already reported in the media, Strait said.

Other attorneys take a different approach, asserting that anything in the public domain can no longer be considered secret.

So it could wind up being a question for a jury to decide.

When attorneys find themselves with two clients with conflicting interests, they usually evaluate which client would have the more dangerous lawsuit against them when they violate the privilege, Strait said. And from a moral perspective, which client is more innocent?

"My own feeling here is the real client is the city, not Brame, and if they have to violate the duty owed to somebody, it's clear what they should do," Strait said.

Sometimes, just figuring out who the client is gets difficult, attorneys say.

"The problem when you get to a governmental entity, is who is the client?" said Rob Aronson, University of Washington law professor.

It's easy when there's one attorney and one person who hired that attorney.

But just because people - such as the mayor or city manager - speak for the city doesn't mean they have a right to confidentiality. The city attorney represents the city, which endures, not an individual, who might leave.

Who can waive the privilege is a question when the definition of "client" is ambiguous.

In the Brame case, Strait believes acting City Manager Jim Walton or Mayor Bill Baarsma could waive the privilege alone, while others believe it would take the whole City Council - as the city's governing body - to say it's OK.

There are exceptions to the attorney-client privilege. An attorney must tell when a client talks about a plan to commit a crime, or when a lawyer unwillingly becomes part of a crime.

Attorneys also can stray from the privilege to defend themselves from attack - either by a lawsuit or the state bar association.

Otherwise, the only information attorneys can give without permission is whether they represent someone. Even the fact that a conversation took place can be privileged, Strait and Aronson say.

Lawyer so revere the attorney-client privilege - and the rules and civil rights that go with it - that they fear ignoring them even when told they can.

"You hope ... you're not put in a position where you have to make a decision about waiving something that is so integral to our profession," said Chip Holcomb, senior counsel for the state Attorney General's office.

"We don't want to put ourselves into a position where we're acting inappropriately, or worse, could face discipline."

Karen Hucks: 253-597-8660

karen.hucks@mail.tribnet.com

Brame case on the agenda

Tacoma City Council members will consider three issues relating to the David Brame case when they meet at 5 p.m. today in council chambers at City Hall, 747 Market St.

According to Mayor Bill Baarsma, they are:

Appointment of a citizen oversight committee to work in tandem with the city's administrative investigation of the case, which is being overseen by the Washington Association of Sheriffs and Police Chiefs.

Approval of Baarsma's appointment of Douglas Aukland, a former FBI agent, to act as liaison between the administrative investigation team and the council.

A waiver of attorney-client privilege for City Attorney Robin Jenkinson and her staff so they can discuss aspects of the case with investigators and city officials.

The statement released by Tacoma City Manager Ray Corpuz. A7

Tacoma is once again 'gritty' to those who don't know city. Peter Callaghan B1

Editorial. B6

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