14 P.3d 879
No. 45775-6-I.The Court of Appeals of Washington, Division One.
Filed: December 26, 2000.
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[EDITORS’ NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]Page 40
Glen A. Prior (of Law Firm of Glen Prior, P.S., Inc.), for appellants.
F. Michael Kovach (of Mair, Camiel Kovach), for respondent.
[As amended by order of the Court of Appeals January 11, 2001.]
AGID, C.J.
This appeal requires us to determine: (1) whether the trial court may enter a money judgment against an attorney and require him to participate in supplemental proceedings when he fails to pay CR 11 attorney fees and costs assessed against him and (2)
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whether the attorney-client privilege in general and the legal advice exception in particular protect the client identity information sought in this case by interrogatory during supplemental proceedings. We answer the first question in the affirmative and the second in the negative.
FACTS AND PROCEDURAL HISTORY
Splash Design sued attorney Karl Park and Park’s employer, the Law Firm of Glen Prior, Inc., P.S. (`the Firm’), based on Park’s handling of an escrow transaction. Splash Design alleged Park breached his fiduciary duty and violated the Consumer Protection Act (CPA) and that the Firm was liable under theories of negligent supervision and respondeat superior. Another attorney at the Firm, Glen Prior, represented Park and the Firm. After a July 1999 bench trial, the trial court awarded damages, as well as attorney fees and costs under CR 11,[1] to Splash Design.
The trial court entered a money judgment, which named Park, the Firm, and Prior as `judgment debtors.’ The money judgment specified that Park and the Firm were liable for $26,206.40 in damages, and that they, together with Prior, owed $54,701.57 to Splash Design for attorney fees and costs. As of September 9, 1999, however, none of the debtors had made any payments or payment arrangements.[2] Accordingly, Splash Design moved for an order of supplemental proceedings under chapter 6.32 RCW. The trial court granted the motion and ordered the debtors to
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answer interrogatories[3] and appear for debtor’s examination[4]
in early November.
In October, the debtors moved to quash the order for supplemental proceedings on two grounds. First, Prior claimed the court did not have jurisdiction to treat him as a `judgment debtor’ because he was not a party, and therefore the money judgment was void.[5] Thus, Prior argued, he was not subject to supplemental proceedings because they were based on the money judgment. Second, the debtors claimed the ex parte motion for supplemental proceedings violated due process because they were not served ahead of time and had no opportunity to be heard before the court issued the order. Accordingly, they argued, the order for supplemental proceedings was void. The court denied the motion to quash and noted that `the defendants’ motion is frivolous in that it is neither well founded in fact nor supported by law. . . .’ The court then renewed its order requiring the debtors to answer the interrogatories.
On November 2, Park appeared for his debtor’s examination but, based on attorney-client privilege, refused to answer interrogatory 15. That question read:
Interrogatory No. 15: If the Judgment Debtor is self-employed, please provide the following information regarding that business:
. . .
c. Provide the name, address, phone number and current account balance of each existing customer or client.
The court continued Park’s examination until later that month, and required the parties to submit briefs on the matter by November 11. In the meantime, Splash Design received the debtors’ interrogatory responses. Park and the
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Firm again declined to answer Interrogatory 15 based on the attorney-client privilege, and Prior again objected to the interrogatories in general, reiterating the already-rejected claim that he could not be a judgment debtor because `he is not a party to this action, was not served a summons or complaint, and had no notice or opportunity to defend himself.’
On November 8, Splash Design moved to compel answers to the interrogatories. They contended the debtors had not proven that attorney-client privilege prohibits the disclosure of their clients’ names, addresses, phone numbers and current account balances; Prior’s non-party status does not exempt him from supplemental proceedings to recover the CR 11 sanctions; and Prior’s objection to the interrogatories was `frivolous or interposed for an improper purpose so that further Rule 11 sanctions should be imposed against him{.}’ The debtors responded, reasserting the same contentions. They also claimed that many of the Firm’s clients were immigrants and revealing their identity could jeopardize their immigration status.
The trial court entered an order compelling all of the debtors to answer the interrogatories in full. The debtors appeal that order.
DISCUSSION Supplemental Proceedings for a Non-party Attorney
Prior argues that the “judge was without jurisdiction to make {him} a judgment debtor and subject him to . . . statutory supplemental proceedings against judgment debtors because he was not a party to the action and was not served with a summons and complaint.” According to Prior, CR 11 `does not authorize the court to make a sanctioned non-party a judgment debtor under enforcement of judgment statutes.’ Splash Design responds simply that the award of CR 11 sanctions was properly reduced to judgment because it is “an order from which an appeal lies.”[6] We affirm the court’s decision to enter the money judgment
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against Prior and order his participation in supplemental proceedings.
In Washington, a lawyer sanctioned under CR 11 is an `aggrieved party’ and may therefore seek review of the sanctions under RAP 3.1.[7]
Similarly, under federal case law an attorney sanctioned under Rule 11 is the real party in interest for purposes of appealing those sanctions and should be named in the notice of appeal.[8] Courts customarily memorialize such awards in the final judgment, notwithstanding that imposition of CR 11 sanctions is not a judgment on the merits of an action,[9] and CR 54(a)(1) defines `judgment’ as `the final determination of the rights of the parties in an action. . . .’[10]
Because a sanctioned attorney thus becomes a party for purposes of appeal, it was appropriate for the trial court to treat Prior as a party for purposes of collecting the sanctions it imposed during trial.
In addition, the supplemental proceeding statute, RCW 6.32.010 et seq., is the exclusive method for obtaining the information necessary to collect money awarded by the court, and nothing in the statute prohibits invoking it against a non-party attorney sanctioned under CR 11.[11] In the absence of statutory language to the contrary, it would be unfair to deny a party to whom an award is due under CR 11 the benefits and protections of supplemental proceedings just because the sanctioned attorney is a non-party.[12]
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The trial court properly included Prior in its order for supplemental proceedings.
Interrogatory 15 and the Attorney-Client Privilege
The debtors maintain on appeal that the information requested in interrogatory 15 is `confidential, secret, and privileged. . . .’ When they invoked the attorney-client privilege below, the trial court ultimately ruled that the privilege protected only a limited group of the Firm’s clients, concluding: `the Judgment Debtors have failed to establish that the name, address and account receivable information of all clients would be within the protected scope of the privilege.’[13]
Accordingly, the court ordered the debtors to answer all interrogatories with respect to `all non-immigration matter clients’ and `immigration clients whose identities are already known in court or administrative proceedings.’[14] We disagree; on this record, the attorney-client privilege does not protect any of the information requested by interrogatory 15.[15]
Washington’s statutory attorney-client privilege protects communications and advice between an attorney and client.[16]
Ordinarily a client’s identity does not fall within the purview of the attorney-client privilege unless there is a strong probability that disclosure would convey the substance of confidential communications between the client and attorney, a rule commonly known as the legal advice exception.[17] Here, the debtors mistakenly argue that the legal advice exception protects their clients’ identities
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from discovery in the context of supplemental proceedings.[18]
First, the debtors erroneously conflate the legal advice exception with their general claims that any disclosure of Firm clients’ identities would be unfair because current immigration laws are so severe. The proper focus in determining whether the legal advice exception applies is the likelihood that disclosure of a client’s identity will reveal the substance of confidential communications between attorney and client, not other potential problems. The debtors’ nonspecific allegation that turning over the name, address, and phone number of Firm clients could subject at least some of the clients to severe immigration consequences fails to meet this requirement. Thus, the debtors’ reliance on the legal advice exception is both misplaced and unsuccessful.[19]
But we must also acknowledge, as the trial court did, their concern that disclosure of Firm clients’ identities could confuse its clients with immigration problems and heighten their fear and distrust of our legal system. In order to avoid these potential problems, the trial court properly imposed a protective order `prohibiting {Splash Design’s attorney} from revealing that information for any purpose other than collecting the money due to the Judgment Creditor. . . .’ and instructed that the information could not be turned over to any collection agency `other than counsel for {Splash Design}.’ Additionally, we direct the trial court to order that:
1) The debtors need only disclose the identity of and
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location information for clients with balances owed;[20]
and
2) Any necessary court proceedings involving Firm clients be closed and confidential.
These additional protections will prevent any possibility that the identity of Firm clients will be improperly revealed to immigration or law enforcement authorities, and will help to assuage the clients’ fears about any legal proceedings that may be necessary.[21] Should further proceedings raise any new concerns about protecting Firm clients’ identities, we are confident the trial court will be able to fashion effective protective orders accordingly.
The debtors’ remaining argument is frivolous. Citing 8 U.S.C. § 1255a
(c)(5), they claim they will be criminally liable for releasing the identity of some of their clients. But that section is wholly inapposite here. It is part of the statutory framework for an immigration procedure known as `adjustment of status’ and applies only to federal government officials involved in that particular process.
Finally, Splash Design claims the debtors’ appeal is frivolous and was filed in bad faith, and that this court should award Splash Design its fees as sanctions against the debtors under RAP 18.9(a). It also contends the trial court erred in failing to impose CR 11 sanctions when the debtors invoked the attorney-client privilege below. We deny both requests. First, because there is no obvious legal authority about whether a non-party attorney can be a judgment debtor and made subject to supplemental proceedings under chapter 6.32 RCW, that claim was not frivolous. Second, although the debtors’ attorney-client privilege claim was weak at best, their urgings with respect
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to special protections needed for their immigrant clients are well-founded. Affirmed in part, reversed and remanded in part.
COLEMAN and BAKER, JJ., concur.
Review denied at 143 Wn.2d 1022 (2001).
(1998).
(1989). An aggrieved party is one whose proprietary, pecuniary, or personal rights are substantially affected. Id.
(1980), reversed on other grounds, 95 Wn.2d 841, 631 P.2d 930
(1981).