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Barbee v. Luong Firm2/28/2005
Carrissa Barbee filed a lawsuit against her former employer. Her husband, James Barbee, represented her. During her deposition, Barbee mentioned that before the lawsuit she had discussed with James certain events leading up to it. The court concluded James was a necessary witness and disqualified him from serving as Barbee's attorney. Because a mere reference to the subject matter of a conversation does not serve as a waiver of the spousal privileges, we reverse the order of disqualification.
The Luong Law Firm employed Carrissa Barbee as an attorney from October 2001 until her termination on January 16, 2003. Her marriage to James took place sometime between those dates. Acting pro se, Barbee filed suit against the firm in March 2003, alleging wrongful termination and other related causes of action.
The complaint alleged that when Barbee first accepted employment, Susan Luong told her that she would be responsible for paying her own social security tax, as she would be an independent contractor and not an employee of the firm. In time, Barbee came to the conclusion that she was an employee, due to the nature and scope of her work and the control that the firm exerted over her work product. She submitted a memorandum to Luong and the firm asserting that she was an employee and the firm should be paying the applicable taxes. Luong allegedly replied that she did not have time to read the memorandum.
Barbee confronted Luong about other conduct by the firm that she believed was improper. According to Barbee, the incident that led to her termination was being asked to take over a trial for a client who had previously stated that Barbee should not work on her case. Barbee refused even after Luong said she had persuaded the client to change her mind. The trial was one week away, and Barbee says she believed that she could not represent the client on such short notice without committing malpractice. Within days of this discussion, Luong fired Barbee.
Soon after Barbee filed suit, her husband James, who is also an attorney, began representing her in the lawsuit. The firm took Barbee's deposition in two sessions. Barbee testified that she had discussed certain matters relevant to her employment with James before the lawsuit, and that he had tried to help her get her job back. Based on this testimony, the firm moved to disqualify James from acting as Barbee's attorney under the Rules of Professional Conduct on the grounds that he is a necessary witness. The firm contends James is a necessary witness because he has personal knowledge of the events giving rise to the litigation as well as Barbee's alleged emotional distress. The firm contends that the issues about which James has knowledge are not 'mere formalities' but 'go to the very heart of this lawsuit'.
The trial court agreed that James was likely to be a necessary witness. In response to Barbee's argument that James was legally unavailable as a witness due to the statutory marital privilege, the court ruled that 'any claim of marital privilege pursuant to RCW 5.60.060 has been waived pursuant to the responses Ms. Barbee provided in her deposition.' Barbee's appeal from this ruling is before this court on discretionary review.
The firm contends the following deposition testimony constituted a waiver of one or both of the two spousal privileges granted by RCW 5.60.060: {TESTIMONY 1:}
Q. So during that initial follow-up phone call Ms. Luong may have mentioned something about you would be paying your own taxes, but you're not certain?
A. I'm not certain. I think I discussed it over with Jim and decided to question her again about it, about the tax issue.
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