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Freise v. Kahr9/5/2000
laim the communications between her and her client are privileged. See Olson, 43 Wn. App. at 487. Moreover, there was no request below for the trial court to conduct an in-camera review of matters sought in discovery, in order to determine whether Kahr was invoking the privilege to protect against disclosure of information to be used against the client as opposed to hiding behind her client's privilege to avoid charges of tortious interference on her part. Thus, as presented below and briefed for this appeal, we have no basis for reversing the trial court's ruling.
The only remaining issue is whether Jeff Barrett has waived this privilege by suing his former attorney, Freise, for malpractice. Although the attorney-client privilege between Jeff Barrett and Freise is impliedly waived in the malpractice proceedings against Freise, it does not follow that Jeff Barrett has necessarily waived the attorney-client privilege between him and Kahr in this case. See Pappas, 114 Wn.2d at 208-09. Indeed, Freise & Welchman offered no evidence to indicate that Jeff Barrett waived his attorney-client privilege with Kahr.
In sum, we find no basis for reversal of the trial court's ruling denying Freise & Welchman's motion to overrule Kahr's assertion of the attorney-client privilege and by refusing to order her to produce privileged communications between Kahr and her client regarding Freise & Welchman's termination.
III. Attorney Fees on Appeal
Freise & Welchman requests costs and attorney fees on appeal. This court may order a party who files a frivolous appeal to pay attorney fees under RAP 18.9. 'An appeal is frivolous when, considering the record in its entirety and resolving all doubts in favor of the appellant, no debatable issues are presented upon which reasonable minds might differ, i.e., 'it is so devoid of merit that no reasonable possibility of reversal exists.'' Brin v. Stutzman, 89 Wn. App. 809, 828, 951 P.2d 291 (citation omitted), review denied, 136 Wn.2d 1004 (1998).
Kahr's appellate briefs contain no facts or legal argument in support of her assertion that the trial court erred by dismissing her counterclaims. Nonetheless, considering the record in its entirety and resolving all doubts in her favor, we conclude that Kahr presented debatable issues upon which reasonable minds might differ on the CR 11 sanctions and RCW 4.84.185 expenses issues. Because Kahr's appeal in its entirety is not so totally devoid of merit that there is no reasonable possibility of reversal, we must deny Freise & Welchman's motion for attorney fees under RAP 18.9.
Affirmed.
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