Communications protected by the attorney-client privilege obviously can include more than documents or oral conversations. For instance, a client might wink a “yes” in response to her lawyer’s question, or a lawyer might silently hold up three fingers to convey some message to a client.
In State v. Athan, 158 P.3d 27 (Wash. 2007), a Seattle police department cold case unit began investigating the 1982 rape and murder of a thirteen-year-old Seattle girl. The original 1982 investigation had focused on John Athan (then a teenager), but he was never charged. The cold case unit used modern DNA analysis to isolate a male DNA profile from the 1982 evidence. After locating Athan in New Jersey, the Seattle detectives sent him a letter from a fictitious law firm inviting Athan to join a fictitious class action lawsuit involving parking tickets. The Seattle unit matched the DNA from saliva on the return envelope flap to the 1982 crime scene DNA, and arrested Athan. He argued that he reasonably thought that he had entered into an attorney-client relationship with a law firm, and that his saliva constituted a protected communication to them. The Washington Supreme Court relied on Black’s Law Dictionary definition of “communication” in concluding that “Athan’s saliva was merely a means by which he could seal the envelope” and that there “was no intent or expectation on Athan’s part that his saliva would be an expression or exchange of information.” Id. at 34.
Even defining the “communication” element of the attorney-client privilege can require a subtle analysis.