Volume 68 — Washington Appellate Reports

<bold>[1] Criminal Law — Confessions — Voluntariness — Determination —</bold> <bold>Factors.</bold> Due process requires that a criminal defendant's confession must have been voluntarily given before it can be used as evidence; voluntariness is determined by examining the totality of the circumstances involved and by considering such factors as the defendant's physical condition, age, experience and mental abilities, and police conduct, <italic>i.e.,</italic> police officers' use of any threats, violence, or any direct or indirect promises to physically or psychologically coerce the defendant into giving the confession. <bold>[2] Criminal Law — Confessions — Voluntariness — Mental Health —</bold> <bold>Effect.</bold> The mental illness or mental retardation of a criminal defendant is only one factor to be considered in determining the voluntariness of the defendant's confession; neither is conclusive in and of itself. <bold>[3] Criminal Law — Confessions — Waiver of Constitutional Rights</bold> <bold>— Validity — Knowledge of Right.</bold> A criminal defendant's understanding of the constitutional right to remain silent, rather than an understanding of the precise nature of the risks of<page_number>Page 389</page_number> talking, is the critical factor in determining the voluntariness of a knowing and intelligent waiver of the right. <bold>[4] Criminal Law — Confessions — Waiver of Constitutional Rights</bold> <bold>— Validity — Review — Substantial Evidence.</bold> A trial court's determination that a confession was voluntary will not be disturbed on review if there is substantial evidence in the record from which the trial court could have found, by a preponderance of the evidence, that the confession was voluntary.

<bold>[1] Employment — Termination — Negligent Investigation — Tort</bold> <bold>Liability.</bold> No separate tort liability is recognized in this jurisdiction for an employer's negligence in investigating an employee's misconduct which results in the employee's discharge. <bold>[2] Employment — Sexual Harassment — Qualified Privilege.</bold> Complaints of sexual harassment in the workplace are conditionally privileged. <bold>[3] Judgment — Summary Judgment — Burden on Nonmoving Party —</bold> <bold>Averment of Specific Facts — Nature of Facts.</bold> Conclusory statements of fact generally are insufficient to defeat a motion for a summary judgment. <bold>[4] Employment — Sexual Harassment — Terminated Employee —</bold> <bold>Liability of Employer — Summary Judgment.</bold> When an employee terminated for having sexually harassed a co-worker brings an action for damages against the former employer and the employer establishes the conditional privilege applicable to sexual harassment complainants, to overcome a motion for summary judgment the employee must produce specific evidentiary facts showing the falsity of the complainant's allegations; a denial of the legal conclusion that sexual harassment occurred is insufficient.

<bold>[1] Attorney and Client — Attorney-Client Relationship —</bold> <bold>Existence — Determination.</bold> Whether an attorney-client relationship exists is a factual determination which can be inferred from the conduct of the parties or can be based on the reasonable subjective belief by the client that such a relationship exists. <bold>[2] Attorney and Client — Rules of Professional Conduct —</bold> <bold>Violation — Question of Law or Fact.</bold> Whether an attorney has violated the Rules of Professional Conduct is a question of law which is reviewed de novo by an appellate court. <bold>[3] Attorney and Client — Conflict of Interest —</bold> <bold>Disqualification — Disclosure of Confidences — Necessity.</bold> The actual disclosure of confidential information obtained by an attorney while representing a former client is not required before a violation of RPC 1.9(a) occurs. RPC 1.9(a) generally forbids an attorney's representation of another person in a substantially related matter involving adverse interests. <bold>[4] Attorney and Client — Conflict of Interest — Prejudice — Use</bold> <bold>of Confidence.</bold> An attorney's conflict of interest arising under RPC 1.9(a) is not prejudicial unless the aggrieved party can identify a portion of the record where it appears a confidence may have been utilized.