Edmonds v. Standcampiano , 450 F.3d 917 ( 2006 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
In re: THE ESTATE OF MATILDA 
COVINGTON, Deceased Colville
Indian 101-A1273 IP SA 73 N 01,
JAMES EDMONDS, Colville Tribal
Legal Services,
Petitioner-Appellee, No. 04-35449
v.
WILLIAM E. HAMMETT, U.S.
 D.C. No.
CV-03-00197-FVS
Administrative Law Judge, Office OPINION
of Hearings and Appeals,
Department of the Interior;
MICHAEL J. STANCAMPIANO, Indian
Probate Judge, Office of Hearings
and Appeals, U.S. Department of
the Interior,
Respondents-Appellants.

Appeal from the United States District Court
for the Eastern District of Washington
Fred L. Van Sickle, Chief Judge, Presiding
Argued and Submitted
March 8, 2006—Seattle, Washington
Filed May 25, 2006
Before: Diarmuid F. O’Scannlain, Barry G. Silverman, and
Ronald M. Gould, Circuit Judges.
Opinion by Judge O’Scannlain;
Dissent by Judge Gould
5811
5814 IN RE: THE ESTATE OF COVINGTON
COUNSEL
Katherine J. Barton, Environmental and Natural Resources
Division, United States Department of Justice, Washington,
D.C., argued the cause for the appellants. Thomas L. Sanso-
netti and William H. Beatty, Assistant United States Attor-
neys, and John A. Bryson, Department of Justice, were on the
briefs.
David. J. Groesbeck, Spokane, Washington, argued the cause
for the appellee. James R. Bellis, Nespelem, Washington, was
on the briefs.
IN RE: THE ESTATE OF COVINGTON 5815
OPINION
O’SCANNLAIN, Circuit Judge:
Rarely does a probate matter find its way into federal court.
Here we are presented with a will contest involving a member
of an Indian tribe in a Department of the Interior probate pro-
ceeding where we must decide whether state or federal law of
evidence applies.
I
Matilda Covington, a Colville Indian,1 died on July 13,
1999. On July 9, 1999, shortly before her death, Covington
executed a will leaving all her Indian trust allotments to her
great-grandson, Brandon Austin Francis, a minor.2 Coving-
ton’s children predeceased her and she left no property to her
three living grandchildren. The will listed one of Covington’s
grandchildren, Jolene Francis—the mother of Brandon Austin
Francis—as the decedent’s personal representative for pur-
1
In this opinion, we use the term “Indian.” Though the term “Native
American” is frequently preferred, “the statutes and opinions we examine
use the term Indian, which was the appropriate word not so long ago.”
Dawavendewa v. Salt River Project Agric. Improvement & Power Dist.,
154 F.3d 1117, 1118 n.1 (9th Cir. 1998).
2
A trust allotment is “a parcel of land owned by the United States in
trust for an Indian.” Cohen’s Handbook of Federal Indian Law § 16.03[1],
p. 1039 (Nell Jessup Newton et al. eds., 2005) (“Federal Indian Law”).
See also United States ex rel. Morongo Band of Mission Indians v. Rose,
34 F.3d 901, 906 n.2 (9th Cir. 1994). Generally, “upon the death of an
Indian allotment owner, the decedent’s interest . . . passes to his or her
Indian heirs or devisees.” Federal Indian Law § 16.03[4][c], p. 1052.
However, “with secretarial approval, Indian allotment owners may relin-
quish allotted land to their close relatives in trust, so long as the recipient
is an Indian qualified to own restricted property.” Id. Thus, the Depart-
ment of the Interior determines the disposition of trust properties when the
Indian dies. 25 U.S.C. §§ 372, 373. See also William C. Canby, Jr., Ameri-
can Indian Law 50 (4th ed. 2004) (describing Indian trust lands and Interi-
or’s role).
5816 IN RE: THE ESTATE OF COVINGTON
poses of administering the estate. Jolene Francis is also listed
as a contingent beneficiary for the trust property. Staff attor-
neys from the Colville Tribal Legal Services (“CTLS”)
assisted Covington in drafting her will.
Two of Covington’s grandchildren—Debra Palmer and
Robert Francis—contested her will alleging that she lacked
testamentary capacity and was subjected to undue influence.
The Department of the Interior’s (“Interior”) Office of Hear-
ings and Appeals (“OHA”) hears will contests involving
Indian trust allotments. See supra n.2. At the third hearing,
testimony by the will scrivener and witnesses cast doubt on
Covington’s state of mind. Further, two of Covington’s rela-
tives testified that she was unable to recognize or to speak
with them in the days before she executed the will.
Testimony at the probate hearings revealed that Covington
had prepared a handwritten worksheet to aid her attorney in
drafting the new will. Debra Palmer and Robert Francis
sought a subpoena for all materials related to the preparation
of the will, presumably hoping that they would shed light on
Covington’s mental state. OHA Administrative Law Judge
(“ALJ”) William Hammett oversaw the probate of the will
and issued a subpoena duces tecum to James Edmonds—
director of CTLS—compelling him to produce copies of all
documents relating to the preparation of the will and to appear
at a supplemental hearing. Edmonds refused to turn over the
documents, claiming that they were privileged attorney-client
communications, confidential, and protected work product.
Jolene Francis, the personal representative of Covington’s
estate, refused to waive any privilege.
The ALJ rejected Edmonds’s claim of privilege and
directed him to produce the relevant materials. Shortly there-
after, Edmonds filed a motion to quash the subpoena in the
Eastern District of Washington.3 The district court granted the
3
43 C.F.R. § 4.230(b) designates the district court as the proper forum
for the enforcement of a subpoena issued by an OHA ALJ.
IN RE: THE ESTATE OF COVINGTON 5817
motion to quash on the grounds that attorney-client privilege
protected the materials.
Interior timely appeals.
II
Interior contends that under the regulations, the ALJ may
admit evidence that does not comport with state evidentiary
rules.4
A
As a threshold matter, we must address Interior’s assertion
that its interpretation of its own regulations is due deference.
Interior is indeed correct that an agency’s interpretation of its
own regulations is generally entitled to deference. See, e.g.,
Auer v. Robbins, 519 U.S. 452, 461 (1997); League of Wilder-
ness Defenders/Blue Mts. Biodiversity Project v. Forsgren,
309 F.3d 1181, 1183 (9th Cir. 2002) (“An agency’s interpreta-
tion of its own regulations is entitled to deference unless it is
plainly erroneous or inconsistent with the regulation[.]”).
Though Interior may be due deference, we are reminded that
“Congress has delegated to the administrative official and not
to appellate counsel the responsibility for elaborating and
enforcing statutory commands.” Investment Company Insti-
tute v. Camp, 401 U.S. 617, 628 (1971). In Bowen v. George-
town University Hospital, 488 U.S. 204, 212 (1988), however,
the Supreme Court refused to extend Chevron deference when
“the agency itself has articulated no position on the question.”
The Court explained that “[d]eference to what appears to be
nothing more than an agency’s convenient litigating position
would be entirely inappropriate.” Id. Despite these admoni-
4
A district court’s decision to quash an administrative subpoena is
reviewed de novo. NLRB v. Bakersfield Californian, 128 F.3d 1339, 1341
(9th Cir. 1997); Reich v. Montana Sulphur & Chem. Co., 32 F.3d 440, 442
(9th Cir. 1994).
5818 IN RE: THE ESTATE OF COVINGTON
tions, Auer explained that an agency’s litigating position may
be entitled to deference if it reflects the agency’s “fair and
considered judgment on the matter in question” and is not a
“ ‘post hoc rationalization.’ ” 519 U.S. at 462 (quoting
Bowen, 488 U.S. at 212). If Interior’s position meets these
requirements, and is not plainly erroneous or inconsistent with
the regulations, we will defer to it.5
B
Interior has published regulations regarding Indian trust
probate proceedings pursuant to 5 U.S.C. § 301, which autho-
rizes the head of any executive department to prescribe regu-
lations to conduct the business of the department.
[1] The relevant OHA regulation on form and admissibility
of evidence states:
(a) Interested parties may offer at a formal hearing
such relevant evidence as they deem appropriate
under the generally accepted rules of evidence of the
State in which the evidence is taken, subject to the
administrative law judge’s or Indian probate judge’s
5
CTLS argues that Interior’s interpretations are not entitled to deference
because the Interior Department functions as a trustee for Indians. See
Cobell v. Norton, 240 F.3d 1081, 1099 (D.C. Cir. 2001) (noting that “the
Secretary cannot escape his role as trustee by donning the mantle of
administrator to claim that courts must defer to his expertise and delegated
authority” (internal quotations omitted)). However, even if a duty to deal
fairly with Indians applies, it is not clear in who benefits. CTLS argues
that the duty favors its interpretation, because it protects the Indian-
testator’s confidential communications. Interior, however, contends that it
needs broad authority to admit evidence in order to dispose of trust lands
effectively and in accordance with the Indian-testator’s wishes. Thus, any
duty to deal fairly would just as easily favor Interior’s interpretation as
CTLS’s. With both parties claiming that their approach benefits Indians—
and both parties having plausible claims to such—we cannot say that a
duty to deal fairly would cut one way or another.
IN RE: THE ESTATE OF COVINGTON 5819
supervision as to the extent and manner of presenta-
tion of such evidence.
(b) The administrative law judge or Indian probate
judge may admit letters or copies thereof, affidavits,
or other evidence not ordinarily admissible under the
generally accepted rules of evidence. The weight to
be attached to evidence presented in any particular
form is within the discretion of the administrative
law judge or Indian probate judge, taking into con-
sideration all the circumstances of the particular
case.
(c) Stipulations of fact and stipulations of testi-
mony that would be given by witnesses were such
witnesses present, agreed upon by the interested par-
ties, may be used as evidence at the hearing.
(d) The administrative law judge or Indian probate
judge may in any case require evidence in addition
to that offered by the interested parties.
43 C.F.R. § 4.232.
Another OHA regulation limits production of privileged
materials:
(a) An interested party may make a written
demand to produce documents for inspection and
copying or photographing. This demand:
. . . (4) May demand any documents,
papers, records, letters, photographs, or
other tangible things that are:
(i) Relevant to the issues;
(ii) In the other party’s or custodian’s
possession, custody, or control; and
5820 IN RE: THE ESTATE OF COVINGTON
(iii) Not privileged. . . .
(c) On his or her own motion, the administrative
law judge or Indian probate judge may issue an order
to any interested party or custodian of records for the
production of material or information that is relevant
to the issues and not privileged. . . .
43 C.F.R. § 4.220 (emphasis added).
While under § 4.220, the ALJ lacks authority to subpoena
privileged materials, the regulation does not specify whether
federal or state privilege law applies. The parties agree that if
federal evidentiary law applies to these proceedings, § 4.220
would not bar the admission of Covington’s notes.6 Obvi-
ously, the first question is whether § 4.232 adopts federal or
state evidentiary rules. Second, we must determine whether
the relevant source has incorporated the testamentary excep-
tion to the attorney-client privilege.
C
Does § 4.232 adopt state or federal law? CTLS contends
that subsection (a) applies the evidentiary rules of the state in
which the evidence is introduced. Interior, on the other hand,
contends that subsection (a) only determines what evidence
6
If the testamentary exception to the attorney-client privilege applies,
the materials would be both admissible and not privileged. See, e.g.,
Glover v. Patten, 165 U.S. 394, 406 (1897) (noting, in a suit between devi-
sees under a will, that “statements made by the deceased to counsel
respecting the execution of the will, or other similar documents, are not
privileged” (emphasis added)); 8 Wigmore on Evidence § 2292, p. 555 (J.
McNaughten ed., 1961) (noting, with respect to Uniform Rule of Evidence
26, the privilege “shall not extend . . . to a communication relevant to an
issue between” parties claiming through a deceased client (emphasis
added)). Therefore, if the testamentary exception to the attorney-client
privilege applies, the limitation in 43 C.F.R. § 4.220 would not bar the
subpoena of the documents.
IN RE: THE ESTATE OF COVINGTON 5821
the parties may offer as a matter of right, and that subsections
(b) and (d) allow the ALJ to admit evidence on the basis of
federal common law.
1
[2] Subsection (a) is the only provision of either regulation
that mentions state or federal law, noting that the parties “may
offer . . . relevant evidence as they deem appropriate under the
generally accepted rules of evidence of the State in which the
evidence is taken.” 43 C.F.R. § 4.232(a). The plain text of the
regulation supports CTLS’s interpretation: the evidence the
parties may offer is determined by state law, not federal law.
As to substantive evidentiary issues surrounding proffered
evidence—such as whether Covington’s communications
with her attorney are privileged (or, conversely whether they
may be offered as evidence)—subsection (a) identifies state
law as the relevant authority.
2
But the question remains where subsection (a) fits as part
of the overall regulatory scheme. Campesinos Unidos v. U.S.
Dep’t of Labor, 803 F.2d 1063, 1069 (9th Cir. 1986) (“Our
task is to interpret the regulation as a whole, in light of the
overall statutory and regulatory scheme, and not to give force
to one phrase in isolation.”). CTLS’s interpretation also fits
with the structure of the whole regulation. If subsection (a)
adopts state law as the relevant evidentiary law for substan-
tive questions, then subsection (b)—as we discuss further
below—frees the ALJ from the strictures of “generally
accepted rules of evidence” in order to allow evidence of dif-
ferent forms and to retain a relaxed procedure. Though we
agree with Interior that subsection (a) does not necessarily set
a limit as to what evidence may come in—subsections (b) and
(d) may expand this universe—subsection (a) clearly sets the
baseline.
5822 IN RE: THE ESTATE OF COVINGTON
[3] The text of § 4.232 is plain; we need not defer to the
agency’s interpretation of subsection (a). Indeed, Interior’s
interpretation is not even supported by its own Interior Board
of Indian Appeals’ (“IBIA”) case law. Specifically, Estate of
Charles Hall, Sr., 8 IBIA 53, 62 (Mar. 28, 1980), concluded
that § 4.232 “adopts the rules of evidence of the state where
the hearings are held.” Similarly, in Estate of Elizabeth Frank
Green, 3 IBIA 110, 119 (Sept. 19, 1974), the IBIA concluded
that § 4.232(a) provides the rules for “submitting and receiv-
ing evidence in Indian probate proceedings.” We think it clear
from these cases that the IBIA decisional law construes sub-
section (a), and § 4.232 generally, as having selected state
evidentiary law as the relevant law for the proceedings.
D
Interior contends that subsections (b) and (d) give the ALJ
broad authority to admit evidence that would not be allowed
under state rules, but would be allowed under federal rules.
CTLS contends that the ALJ remains bound by state law
except under the narrow exceptions provided for in the other
subsections.
1
[4] Subsection (b) states that the ALJ “may admit letters or
copies thereof, affidavits, or other evidence not ordinarily
admissible under the generally accepted rules of evidence.
. . .” § 4.232(b). Interior argues that subsection (b) allows the
ALJ to admit evidence in accordance with federal privilege
law, meaning that § 4.220 would no longer prohibit the
admission of the materials.
[5] The term “other evidence not ordinarily admissible” is
a general term following specific examples, so we must inter-
pret it with reference to the preceding list according to the
ejusdem generis canon of construction. See, e.g., Circuit City
Stores v. Adams, 532 U.S. 105, 114-115 (2001) (“ ‘[W]here
IN RE: THE ESTATE OF COVINGTON 5823
general words follow specific words in a statutory enumera-
tion, the general words are construed to embrace only objects
similar in nature to those objects enumerated by the preceding
specific words.’ ” (quoting 2A N. Singer, Sutherland on Stat-
utes and Statutory Construction § 47.17 (1991)). Under this
reading, “or other evidence . . .” must refer to other evidence
similar to “letters or copies thereof” and “affidavits.” Given
the preceding terms, the catch-all provision is limited to form
and related issues of presentation (e.g., whether the evidence
is properly authenticated, whether it is presented as hearsay,
etc.), rather than questions of substance (e.g., whether privi-
lege extends).7
The second sentence of subsection (b), which Interior does
not explain, reinforces this conclusion: “The weight to be
attached to evidence presented in any particular form is
within the discretion of the administrative law judge” (empha-
sis added). That is, the ALJ may admit evidence in a variety
of forms, but because such evidence may be suspect, the ALJ
is free to discount its weight. Were Interior correct that sub-
section (b) broadly authorizes the ALJ to admit any evidence
he so chooses, the reference to “form” in the second sentence
would be inappropriate.
[6] Interior’s interpretation of subsection (b)—that it allows
the ALJ broadly to “admit evidence not ordinarily admissible”
—excises the prefatory examples and ignores the second sen-
tence of the subsection. We decline to adopt such interpreta-
tion. Rather, we read subsection (b) as a whole; as such, it
allows the ALJ to ignore technical evidentiary requirements
and to admit evidence in various forms or types, but the ALJ
7
CTLS also argues that if subsection (b) is read any more broadly—for
example, so that it allows the ALJ to admit any evidence—then it would
swallow subsection (a). However, this ignores another distinction between
the two provisions. Subsection (a) deals with evidence the parties may
offer, while subsection (b) deals with evidence that the ALJ may accept.
Thus, even if subsection (b) is read broadly, subsection (a) still has a dif-
ferent, logical function.
5824 IN RE: THE ESTATE OF COVINGTON
may not adopt different standards for substantive evidentiary
questions, such as whether communications are privileged as
a matter of law.
Such interpretation also fits with the prior IBIA case law.
For example, hearsay evidence may not be admissible under
state evidentiary rules, but the ALJ can still admit such evi-
dence under subsection (b). See, e.g., Estate of Harold
Humpy, 5 IBIA 132, 136 (June 18, 1976) (approving the
ALJ’s use of § 4.232(b) to admit hearsay testimony that
would not be admissible under state law); Estate of Alexander
Joseph Williams, 6 IBIA 132, 135 (Aug. 2, 1977) (approving
the use of testimony by affidavit where a witness’s health pre-
vented a live appearance, even though state evidentiary law
would not allow testimony in this form); Estate of Guo-La
a/k/a Thomas Jones, 7 IBIA 181, 186 (Aug. 28, 1979) (hear-
say rule not applicable to administrative proceedings). For
example, in Estate of Alexander Joseph Williams, a witness
was too ill to travel and to present testimony. The IBIA con-
cluded that it was acceptable for the ALJ to consider the wit-
ness’s testimony by affidavit, though applicable state rules
would not have allowed the testimony to be delivered in that
form. 6 IBIA at 135. As the IBIA explained, “43 CFR 4.232
adopts the rules of evidence of the state where the hearings
are held, but permits a relaxed procedure.” Estate of Charles
Hall, 8 IBIA at 62 (emphasis added). See also Estate of Larry
Michael Oskolkoff, 37 IBIA 291, 299 (June 24, 2002) (noting
that subsection (b) gives the ALJ “some discretion in deter-
mining what kinds of evidence will be considered”). These
cases go to the form of evidence, and none would allow the
ALJ to admit evidence whose substance—rather than its man-
ner of presentation—would be prohibited by state law.
In support of its interpretation of subsection (b), Interior
argues that “[i]t is a well established principle that federal evi-
dentiary rules govern proceedings in federal court where fed-
eral law provides the rule of decision.” Federal Rule of
Evidence 501, however, states that federal common law will
IN RE: THE ESTATE OF COVINGTON 5825
apply unless “otherwise . . . provided.” Fed. R. Evid. 501.
Here the regulations specifically adopt state evidentiary rules.
Further, given that the IBIA has previously interpreted
§ 4.232 as adopting state evidentiary rules, the litigating posi-
tion proffered by Interior now—advocating that federal com-
mon law applies—is not entitled to any deference.
[7] In sum, subsection (b) expresses the relatively uncon-
troversial proposition that administrative proceedings need
not cleave to strict state evidentiary rules. See, e.g., Opp Cot-
ton Mills v. Adm’r of Wage and Hour Div. of Dep’t of Labor,
312 U.S. 126, 155 (1941) (noting that technical evidentiary
rules, applicable in jury trials, “do not apply to proceedings
before federal administrative agencies in the absence of a stat-
utory requirement that such rules are to be observed”). This
interpretation also fits within the regulatory scheme: subsec-
tion (b) gives the ALJ somewhat broader authority to admit
evidence, but does not jettison the selection of state substan-
tive law evinced in subsection (a). Subsection (b) does not go
further to adopt federal common law or give the ALJ broad
authority. Further, while there are many IBIA decisions rely-
ing on subsection (b) to admit evidence whose form or pre-
sentation does not comport with state law, Interior cannot
point to any IBIA decision that extends to the ALJ authority
to circumvent evidentiary rules on questions of substance.
2
Interior also notes that “[t]he Department has consistently
held that the execution and interpretation of a will disposing
of trust or restricted property are questions of Federal, not
state, law.” Estate of Florence Night Chase, 38 IBIA 188, 192
(Nov. 5, 2002) (citations omitted); see also Estate of Eliza-
beth Frank Green, 3 IBIA 110, 120 (Sept. 19, 1974) (“The
Department has long adhered to the rule that state laws have
no application in Indian trust probate proceedings involving
wills.”). However, this line of cases stands only for the propo-
sition that federal law supplies the standards for determining
5826 IN RE: THE ESTATE OF COVINGTON
valid execution and proper interpretation of wills. These cases
do not support Interior’s position that federal evidentiary law
applies to questions of privilege as well. Indeed, the same
cases which note the role of federal law also explain that state
evidentiary law applies. See, e.g., Green, 3 IBIA at 119 (not-
ing that § 4.232(a) provides for “submitting and receiving evi-
dence in Indian probate proceedings”). Even if the IBIA
decisions supported Interior’s position, Interior’s proffered
interpretation is not supported by the text of the regulation,
which does not distinguish between proceedings involving
wills and other proceedings. Such interpretation would not be
entitled to deference. Auer, 519 U.S. at 461.
3
Finally, Interior argues that subsection (d) gives the ALJ
broad authority to “require evidence in addition to that offered
by the parties.” Interior contends that subsection (d) allows
the ALJ to admit any evidence admissible under federal law.
[8] First, we note that nowhere does subsection (d) explic-
itly adopt federal law. In contrast, subsection (a) explicitly
adopts state law as the baseline for admissibility. Further,
were we to adopt Interior’s interpretation of subsection (d),
that provision would swallow subsection (b). That is, if sub-
section (d) broadly authorizes the ALJ to “require” any evi-
dence admissible under federal law, then a priori the ALJ can
admit evidence that is otherwise inadmissible under state law.
Such result should be avoided: “When interpreting a regula-
tion, we must avoid an interpretation that would render
another regulation superfluous.” United States v. Alisal Water
Corp., 427 F.3d 597, 606 (9th Cir. 2005) (citation omitted).
Subsection (b) carefully allows the ALJ authority to compel
materials of a different form or presentation, but does not
allow the abrogation of substantive state evidentiary law. Inte-
rior’s reading of subsection (d) undermines this balance by
reading subsection (d) in isolation: The ALJ “may in any case
require evidence in addition to that offered by the interested
IN RE: THE ESTATE OF COVINGTON 5827
parties.” However, this reading impermissibly “give[s] force
to one phrase in isolation,” rather than considering the entire
statutory scheme. Campesinos Unidos, 803 F.2d at 1069.
[9] The better reading of subsection (d), we conclude, is
that it grants the ALJ authority to “require” additional other-
wise admissible evidence beyond that presented to him. As
Interior has argued, the ALJ sits in OHA proceedings as a del-
egate of the Secretary. In this role—as compared to that of a
typical trial judge—the ALJ can compel the testimony of
additional witnesses and require additional documentation
beyond that proffered by the parties. But this does not mean
that the ALJ can circumvent the scheme set out in subsections
(a) and (b). Again, no IBIA case law supports Interior’s inter-
pretation, which, in any event, is inconsistent with the regula-
tory text because it would render subsection (b) vestigial.
III
If the regulation requires the ALJ to follow state evidenti-
ary laws, Interior argues that Washington state law would rec-
ognize the testamentary exception to the attorney-client
privilege.8 In the alternative, Interior argues that the question
is appropriate for certification to the Washington Supreme
Court. CTLS argues that the testamentary exception does not
exist under Washington law.
[10] While some states have statutorily defined the excep-
tions to the attorney-client privilege,9 the Washington
Supreme Court has repeatedly identified and endorsed judge-
8
We review de novo the district court’s interpretation of state law. Salve
Regina College v. Russell, 499 U.S. 225 (1991); General Motors Corp. v.
Doupnik, 1 F.3d 862, 864 (9th Cir. 1993).
9
See, e.g., Cal. Evid. Code § 957 (“There is no privilege under this arti-
cle as to a communication relevant to an issue between parties all of whom
claim through a deceased client.”); Hawaii Rule of Evidence 503(c)(3)
(same).
5828 IN RE: THE ESTATE OF COVINGTON
made exceptions to the privilege. See, e.g., Pappas v. Hol-
loway, 787 P.2d 30, 34 (Wash. 1990) (advice not privileged
during litigation between attorney and client); State v. Met-
calf, 540 P.2d 459, 461 (Wash. 1975) (advice sought in fur-
therance of crime or fraud not privileged); see also Robert H.
Aronson, The Law of Evidence in Washington
§ 501.03[2][h][i]-[vi] (2004) (describing six recognized
exceptions to the attorney-client privilege in Washington).
[11] The parties agree that no Washington case has (yet)
adopted the testamentary exception, though it has been recog-
nized in other courts for over 150 years. Edward J. Imwinkel-
ried, The New Wigmore: A Treatise on Evidence § 6.13.2
(2002) (noting that English courts first recognized the testa-
mentary exception in Russell v. Jackson, 68 Eng. Rep. 558
(V.C. 1851)). The parties point to two cases, Points v. Nier,
157 P. 44 (Wash. 1916), and Cummings v. Sherman, 132 P.2d
998 (Wash. 1943), which both discuss the attorney-client
privilege after the death of a client. While these cases are
material to determining whether the Washington Supreme
Court would adopt a testamentary exception, that is not the
inquiry required under § 4.232(a). Rather, the regulations only
require us to determine whether the testamentary exception to
the attorney-client privilege is “generally accepted.” The par-
ties have not provided a single Washington case or statute rec-
ognizing the testamentary exception; we therefore conclude
that the testamentary exception is not “generally accepted” in
Washington, whatever its merits or the likelihood that it
would be adopted in the future.10
10
Certification pursuant to Wash. Rev. Code § 2.60.030 would also be
inappropriate. Indeed, certification would implicitly concede that there is
no “generally accepted” law. Once we have made that conclusion our
analysis is at an end, and the evidence is inadmissible. Furthermore, the
issue is what the ALJ should have done when faced with this evidentiary
issue. An ALJ in an OHA proceeding lacks the authority to certify ques-
tions under Washington law. See Wash. Rev. Code § 2.60.010. Thus, the
ALJ was bound by the then-extant generally-accepted state law.
IN RE: THE ESTATE OF COVINGTON 5829
[12] In contrast, it is clear that under Washington law, the
attorney-client privilege is “generally accepted.” See Wash.
Rev. Code § 5.60.060(2)(a). Pursuant to the standard rules of
attorney-client privilege, resort to Covington’s attorney’s
notes is not “appropriate under the generally accepted rules of
evidence of” Washington. Because no “generally accepted”
testamentary exception applies, Covington’s notes are inad-
missible.
AFFIRMED.
GOULD, Circuit Judge, dissenting:
Although I agree with the majority’s framework for inter-
preting the Department of Interior’s governing regulation in
Part II, I disagree with the majority’s analysis in Part III,
which for me is the crux of the case. In Part III, the majority
holds that because no Washington case or statute has adopted
the testamentary exception to the attorney-client privilege, the
exception is not a “generally accepted” rule of evidence as
required by 43 C.F.R. § 4.232(a). The majority then concludes
that the general attorney-client privilege, set forth in Wash.
Rev. Code § 5.60.060(2)(a), is a “generally accepted” rule of
evidence that prevents disclosure of the subpoenaed docu-
ments.
The discovery of these documents is not merely technical,
nor is an error on the scope of attorney-client privilege here
likely harmless. It goes to justice between the parties, as the
quashed discovery might have shed light on whether a testator
who in old age cut her grandchildren out of her will and left
everything to a single great-grandchild may have been of
unsound mind or unduly influenced in the revision of her will.
On the other hand, if the discovery shows nothing of this, then
it benignly clears the cloud of this litigation that otherwise
may mar the great-grandchild’s inheritance.
5830 IN RE: THE ESTATE OF COVINGTON
Probably since before the onset of recorded history, there
have been occasions where the aged and mentally infirm have
been unduly influenced in disposition of their assets before
they died. The federal common law and the law of states that
have addressed this issue by statute make a testamentary
exception to the otherwise applicable attorney-client privi-
lege, and thus permit discovery about a testator’s communica-
tions with her attorney in the act of revising a will. The
Supreme Court of the State of Washington has previously
adopted exceptions to the statutory attorney-client privilege,
and I believe that if it reached the privilege issue presented by
this case, the Washington State Supreme Court would proba-
bly recognize a testamentary exception as a limit on the scope
of attorney-client privilege.
Given this setting, and the demands of justice, two courses
are permissible in this case, and I regret neither is taken by the
majority. First, addressing the needs of the case before us, I
would certify to the Washington State Supreme Court for its
binding decision the question whether attorney-client privi-
lege under Washington law bars the discovery that was sought
in this case, or if conversely there is a testamentary exception
to the attorney-client privilege that would permit the discov-
ery to proceed.1 The majority dismisses certification in its
footnote 10, noting the federal regulation’s command only to
follow “generally accepted” state law, within the meaning of
43 C.F.R. § 4.232(a), because the majority does not see how
we can certify that “local law” is not “clearly determined”
within the meaning of Wash. Rev. Code § 2.60.020, as we
interpret whether any “generally accepted” state privilege law
bars the discovery. The majority errs in its view of this certifi-
cation statute. If the Washington State Supreme Court does
not wish to accept a certified question, it will pass. Yet the
1
The Washington State Supreme Court’s clarifying its law on this issue,
on which Washington law is not now clearly determined, would provide
benefits for the bench and bar in the State of Washington in other cases
as well.
IN RE: THE ESTATE OF COVINGTON 5831
Washington State Supreme Court, with its keen eye for dis-
cerning justice, may wish to address directly the issue whether
a testamentary exception permits the requested discovery that
may impact an estate and persons within the State of Wash-
ington. It is not impermissible to certify that local law has not
been clearly determined, as we interpret whether the ALJ had
to apply a rule of attorney-client privilege to preclude issu-
ance of the subpoena to the testator’s Washington lawyer. To
the contrary, it is ill-advised to apply Washington law without
such an exception before permitting the state’s highest court
to step in and decide the matter for us.2
Second, there is a way to assess this case without certifica-
tion. It is to recognize that one cannot sensibly conclude that
the law of attorney-client privilege is clearly established as
applied to a testamentary setting when the Washington State
Supreme Court has never ruled, one way or the other, on
whether there is a testamentary exception to the privilege. The
application of law requires consideration of both rule and
exception. The latter is genuinely at issue when state law is
undecided on whether there is a testamentary exception. A
general rule of law of privilege cannot correctly be said to be
generally accepted in the testamentary setting. This is perhaps
a juristic philosophical issue on which reasonable judges may
differ, but considering the real world consequences for those
who challenge Covington’s will and the purported benefi-
ciary, I do not accept the majority’s conclusion that the Wash-
ington attorney-client privilege is generally accepted state law
as applied to this case in its testamentary setting.
Absent certification and acceptance of the issue, I would
consider whether there is a “generally accepted” rule of evi-
dence under Washington law that governs the discovery of
2
The majority in its footnote 10 urges that the ALJ in the OHA proceed-
ing could not certify questions under Washington law; but that fact does
not detract from our ability to certify the key question for the Washington
State Supreme Court’s decision.
5832 IN RE: THE ESTATE OF COVINGTON
communications between an allegedly incompetent testator
and her attorney. Because the state statute on attorney-client
privilege does not address this situation, see Wash. Rev. Code
§ 5.60.060(2)(a), and because the Washington State legisla-
ture and the Washington State Supreme Court have not spo-
ken on the precise matter, we should reasonably conclude that
there is no applicable “generally accepted” state rule of evi-
dence, and thus the Department of Interior’s ALJ was free to
apply the federal common law recognizing an exception in
this setting to the attorney-client privilege.
On these grounds, I respectfully dissent.