I Developments in Washington's Law of Law-Making - Gonzaga ...

GONZAGA LAW REVIEW
[Vol. 44:3
worded constitutional provisions of Wisconsin 185 (from which Washington's article
II, section 17 was drawn' 86) and Arizona; 87 specifically, court decisions in both states
support a legislative privilege under the speech or debate clause.' 88
On the other hand, in Fossos v. Matheson, Judge Mary Yu of the King County
Superior Court summarily rejected the argument that the speech or debate clause in
article II, section 17 creates a legislative privilege, though this decision was later
superseded by a ruling that the attorney-client privilege protected certain
communications between assistant attorneys general and legislative staff. 189 Thus,
there is no reported opinion that resolves the question either way. Given apparent
trends in litigation, however, it seems likely that the state supreme court will
eventually be called upon to address the issue.
Staff confidentiality is required by legislative employment policies and
expectations.19 0 In addition, of course, legislative staff who are attorneys are bound
to preserve client confidences under the Rules of Professional Conduct.' 91 The same
184. Id at2.
185. WIs.CONST. art. IV,§ 15.
186. UTTER & SPiTZER, supra note 21, at 60.
187. ARIZ. CONST. art. lV, pt.2,§7.
188. State v. Beno, 341 N.W.2d 668, 674-75 (Wis. 1984); Steiger v. Superior Court, 536 P.2d
689, 691 (Ariz. 1975); Arizona Indep. Redistricting Comm'n v. Fields, 75 P.3d 1088, 1094-95 (Ariz.
Ct. App. 2003).
189. See Fossos v. Matheson, No. 80506-7 (Wash. Sup. Ct., Nov. 29, 2007) (dismissing
motion for discretionary review and granting motion for voluntary withdrawal of review); Fossos v.
Matheson, No. 61637-4-1, 2009 WL 1110889, at *3-4 (Wash. Ct. App. Div. I April 27, 2009)
(affirming trial court's ruling that attorney-client privilege protected the communications in question).
190. Memorandum from the House Office of Program Research, at 1 (Jan. 14, 2003) ("Staff
vigorously guard confidentiality and members can be assured that confidential matters will not be
disclosed"); Memorandum from the Wash. State Senate Committee Services, at 1 (Nov. 2000) ("SCS
staff should assume that information relating to matters of policy, if not publicly available, is
confidential . . . . We are expected to maintain the confidentiality of all policy matters under
development for Senators."); Legislative Ethics Board, Advisory Opinion No. 1 (Mar. 13, 1998)
(advising that unauthorized disclosure of draft legislation and other confidential information is a
violation of state ethics laws).
191. The Rules of Professional Conduct adopted by the Washington State Supreme Court,
however, are written to govern a more traditional attorney-client relationship, and it is not entirely
clear how they apply in the legislative arena. For example, the conflict of interest requirements in the
RPC prohibit an attorney from representing clients with opposing interests, but nonpartisan staffers
are expected to prepare legislation on a confidential basis for legislators of both parties, with the
result that individual staffers fiequently draft legislation for members with opposing, even hostile,
intents and purposes. Given the court's claimed exclusive power to regulate the practice of law and
the separation of powers principles that permit the legislature to hire staff of its choosing and dictate
employment responsibilities, application of the RPC to attorneys who work for the legislature
presents an interesting separation of powers question. See Marcello, supra note 4, at 2457-63
(comparison with model rules); Robert J. Marchant, Representing Representatives: Ethical
Considerations for the Legislatures Attorneys, 6 N.Y.U. J. LEGis. & PuB. PoL'Y 439, 462-65 (2002-