AN ACT Relating to civil actions; amending RCW 5.60.060, 4.84.030, 4.84.250, 4.84.300, 12.20.060, and 7.70.070; adding new sections to chapter 4.84 RCW; recodifying RCW 7.70.070; repealing RCW 4.84.020; and providing an effective date.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

Sec. 1. Section 294, page 187, Laws of 1854 as last amended by section 1, chapter 56, Laws of 1982 and RCW 5.60.060 are each amended to read as follows:

(1) A husband shall not be examined for or against his wife, without the consent of the wife, nor a wife for or against her husband without the consent of the husband; nor can either during marriage or afterward, be without the consent of the other, examined as to any communication made by one to the other during marriage. But this exception shall not apply to a civil action or proceeding by one against the other, nor to a criminal action or proceeding for a crime committed by one against the other, nor to a criminal action or proceeding against a spouse if the marriage occurred subsequent to the filing of formal charges against the defendant, nor to a criminal action or proceeding for a crime committed by said husband or wife against any child of whom said husband or wife is the parent or guardian, nor to a proceeding under chapter 71.05 RCW: PROVIDED, That the spouse of a person sought to be detained under chapter 71.05 RCW may not be compelled to testify and shall be so informed by the court prior to being called as a witness.

(2) An attorney or counselor shall not, without the consent of his client, be examined as to any communication made by the client to him, or his advice given thereon in the course of professional employment.

(3) A clergyman or priest shall not, without the consent of a person making the confession, be examined as to any confession made to him in his professional character, in the course of discipline enjoined by the church to which he belongs.

(4) A ((~~regular~~)) physician or surgeon or osteopathic physician or surgeon shall not, without the consent of his patient, be examined in a civil action as to any information acquired in attending such patient, which was necessary to enable him to prescribe or act for the patient, ((~~but this exception shall not apply in any judicial proceeding regarding a child's injuries, neglect or sexual abuse, or the cause thereof~~)) except as follows:

(a) In any judicial proceedings regarding a child's neglect or sexual abuse or the cause thereof; and

(b) Within ninety days of filing an action for personal injuries or wrongful death, the claimant shall elect whether or not to waive the physician-patient privilege. If the claimant does not waive the physician-patient privilege, the claimant may not put his or her mental or physical condition in issue and may not waive the privilege later in the proceedings. Waiver of the physician-patient privilege for any one physician or condition constitutes a waiver of the privilege as to all physicians or conditions, subject to such limitations as a court may impose pursuant to court rules.

(5) A public officer shall not be examined as a witness as to communications made to him in official confidence, when the public interest would suffer by the disclosure.

Sec. 2. Sections 368 and 369, page 201, Laws of 1854 as last amended by section 1, page 337, Laws of 1890 and RCW 4.84.030 are each amended to read as follows:

In any action in the superior court of Washington, the prevailing party shall be entitled to his costs and disbursements((~~; but the plaintiff shall in no case be entitled to costs taxed as attorneys' fees in actions within the jurisdiction of a justice of the peace when commenced in the superior court~~)).

Sec. 3. Section 1, chapter 84, Laws of 1973 as last amended by section 88, chapter 258, Laws of 1984 and RCW 4.84.250 are each amended to read as follows:

Notwithstanding any other provisions of chapter 4.84 RCW and RCW 12.20.060, in any action for damages ((where the amount pleaded by the prevailing party as hereinafter defined, exclusive of costs, is seven thousand five hundred dollars or less, there shall be taxed and allowed to the prevailing party as a part of the costs of the action)), a reasonable amount to be fixed by the court as attorneys' fees((~~. After July 1, 1985, the maximum amount of the pleading under this section shall be ten thousand dollars~~)) incurred after the making of the final offer of settlement by the prevailing party shall be taxed and allowed to the prevailing party, as defined in RCW 4.84.260 and 4.84.270, as a part of the costs of the action. However, there shall be no award of attorneys' fees to the state of Washington, or any political subdivision thereof, in any action instituted by any natural person or his or her marital community.

NEW SECTION. Sec. 4. A new section is added to chapter 4.84 RCW to read as follows:

The payment of attorneys' fees under RCW 4.84.250 may be excused, in the discretion of the court, where the interests of justice so dictate. If payment is excused, the court shall enter written findings setting forth in detail the basis for the decision to excuse payment.

NEW SECTION. Sec. 5. A new section is added to chapter 4.84 RCW to read as follows:

A prevailing party seeking an award of attorneys' fees under RCW 4.84.250 shall submit an affidavit of attorneys' fees with the cost bill submitted under RCW 4.84.090. In determining the attorneys' fees to be awarded, the court shall take into consideration the criteria for attorneys' fees outlined in the code of professional responsibility as adopted by the supreme court.

Sec. 6. Section 6, chapter 84, Laws of 1973 as amended by section 4, chapter 94, Laws of 1980 and RCW 4.84.300 are each amended to read as follows:

The provisions of RCW 4.84.250 through 4.84.290 and sections 4 and 5 of this 1986 act shall apply regardless of whether the action is commenced in ((~~justice~~)) district court or superior court except as provided in RCW 4.84.280. This section shall not be construed as conferring jurisdiction on either court.

Sec. 7. Section 85, page 237, Laws of 1854 as last amended by section 2, chapter 240, Laws of 1985 and RCW 12.20.060 are each amended to read as follows:

When the prevailing party in district court is entitled to recover costs as authorized in RCW 4.84.010 in a civil action, the judge shall add the amount thereof to the judgment; in case of failure of the plaintiff to recover or of dismissal of the action, the judge shall enter up a judgment in favor of the defendant for the amount of his costs((; and in case any party so entitled to costs is represented in the action by an attorney, the judge shall include attorney's fees of fifty dollars as part of the costs: PROVIDED, HOWEVER, That the plaintiff shall not be entitled to such attorney fee unless he obtains, exclusive of costs, a judgment in the sum of twenty-five dollars or more)). Costs shall include attorneys' fees as provided in chapter 4.84 RCW.

NEW SECTION. Sec. 8. Section 1, page 176, Laws of 1885, section 1, page 9, Laws of 1888, section 1, chapter 44, Laws of 1891, section 1, chapter 48, Laws of 1895 and RCW 4.84.020 are each hereby repealed.

NEW SECTION. Sec. 9. Sections 2 through 8 of this act shall take effect on January 1, 1987, and shall apply to all cases pending in the trial courts as of that date.

Sec. 10. Section 12, chapter 56, Laws of 1975-'76 2nd ex. sess. and RCW 7.70.070 are each amended to read as follows:

The court shall, in any tort action ((~~under this chapter~~)), determine the reasonableness of each party's attorneys fees. The court shall take into consideration the following:

(1) The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;

(2) The likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;

(3) The fee customarily charged in the locality for similar legal services;

(4) The amount involved and the results obtained;

(5) The time limitations imposed by the client or by the circumstances;

(6) The nature and length of the professional relationship with the client;

(7) The experience, reputation, and ability of the lawyer or lawyers performing the services;

(8) Whether the fee is fixed or contingent.

NEW SECTION. Sec. 11. RCW 7.70.070, as amended by this 1986 act, is recodified as a section in chapter 4.24 RCW.

NEW SECTION. Sec. 12. If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected.