## Facts

- Marlin Dunlap, a bank branch manager, assisted a condominium development partnership (including Dr. Marvin Wayne) by finding property, providing consultation, and helping with financing efforts.
- The partners agreed by written, notarized contract to pay Dunlap (or his wife) $10,000 for finding the property, ideas, and consultation related to the project.
- Evidence showed Dunlap used the bank’s letterhead to seek financing for the project from an out-of-state firm, linking his bank role to the development effort.
- After the partnership dissolved and the property was sold, Dunlap sought payment and his attorney sent demand letters describing Dunlap’s services, including contacts and possible capital for the project.
- Wayne’s attorney warned that Wayne would inform Dunlap’s employer that Dunlap was seeking improper payments connected to financing if collection efforts continued.
- Wayne contacted senior bank officials, disclosed Dunlap’s demand for payment, and provided documentation about Dunlap’s involvement when requested by the bank.
- Dunlap claimed the bank president told him Wayne accused him of seeking “kickbacks” and engaging in “shakedowns”; Wayne and the bank president denied using those terms.
- The bank terminated Dunlap after reviewing the matter, and Dunlap sued Wayne for defamation.

## Issues

1. Whether Wayne’s communications to Dunlap’s employer about Dunlap’s conduct were protected by a qualified “common interest” privilege.
2. If the privilege applied, whether Dunlap produced sufficient evidence of abuse (including malice or reckless disregard for truth) to defeat summary judgment.
3. Whether the court should decide a separate constitutional “opinion” question when the case could be resolved on common-law privilege grounds.

## Decision

- The Washington Supreme Court affirmed summary judgment for Wayne and dismissal of the defamation action.
- The court held Wayne’s communications to bank officials were protected by the qualified “common interest” privilege.
- The court concluded Dunlap failed to raise a triable issue that Wayne abused the privilege through malice, knowing falsity, reckless disregard, or improper publication.
- The court declined to decide whether the statements were constitutionally protected opinion because the case was resolved on non-constitutional grounds.

## Legal Principles

- A qualified privilege protects good-faith communications between persons sharing a common interest in the subject matter, including business or professional interests.
- In the employment context, communications to an employer concerning an employee’s integrity, conflicts of interest, or job-related conduct may fall within the common-interest privilege when the employer has a legitimate interest in the information.
- Once the privilege is established, the plaintiff must show abuse of the privilege (e.g., malice, knowledge of falsity or reckless disregard, excessive publication, or statements outside the scope of the shared interest).
- Conflicting testimony about exact wording, without evidence supporting abuse of the privilege, is insufficient to avoid summary judgment where the privilege applies.

## Conclusion

The court held that reporting to bank leadership about a bank manager’s side compensation arrangement and related conduct was privileged because both the speaker and employer shared a legitimate business interest in the information, and the plaintiff failed to show evidence that the privilege was abused.


Dunlap v. Wayne, 716 P.2d 842 (Wash. 1986)