![handle is hein.journals/wlro93 and id is 1 raw text is:
DEFINING ATTORNEY-CLIENT PRIVILEGE FOR THE
INDEPENDENT CONTRACTOR: A CASE FOR THE
FUNCTIONAL EQUIVALENT DOCTRINE IN
WASHINGTON
Benjamin J. Robbins*
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.
INTRODUCTION
According to an estimate by the U.S. Government Accountability
Office, independent contractors make up more than forty percent of the
American workforce.' This is in part due to the dynamic nature of
modern industry and evolving working relationships, but it is also
financially motivated. Employers, recognizing that traditional employees
receive significant legal protections and tax benefits not afforded to
independent contractors,2 are increasingly misclassifying employees as
* I would like to thank the student editors of the Washington Law Review Online for their
flexibility, thoughtfulness, and tireless efforts.
1. U.S. Gov'T ACCOUNTABILITY OFFICE, CONTINGENT WORKFORCE: SIZE, CHARACTERISTICS,
EARNINGS, AND BENEFITS 4 (2015), http://www.gao.gov/assets/670/669766.pdf [http://perma.cc/
C4TT-NVN3] (Applying this broad definition to our analysis of data from the General Social
Survey (GSS), we estimate that such contingent workers comprised 35.3 percent of employed
workers in 2006 and 40.4 percent in 2010.).
2. See id. at 21-24.
1](ViewImageLocal?handle=hein.journals/wlro93&div=1&collection=&method=preview&ext=.png&size=3)
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