So, you are having issues at work and want to consult a lawyer. Because hiring a lawyer is a new experience for many, it can be difficult explaining to a stranger what is going on, and the commitment to hire a lawyer can be expensive. Certainly, it can be comforting to have your spouse, your life partner, in that consultation with you for moral and other support. It is important to understand, however, that a spouse’s presence in that meeting can waive the attorney-client privilege, making everything you and your spouse tell the lawyer potentially discoverable. Is the comfort worth the risk?
To foster the harmony and sanctity of the marriage relationship, the Supreme Court has recognized two types of spousal privileges (also referred to as marital privileges): the communications privilege and the testimonial privilege1. The communications privilege protects private communications between spouses, which are generally assumed to have been intended to be confidential. This privilege, however, only applies to confidential communications. If the communication, because of its nature or the circumstances under which it was made, was obviously not intended to be confidential, it is not privileged. Similarly, communications between spouses made in the presence of a third party are usually not privileged because they were not made in confidence, i.e., kept between the spouses. For example, communications between spouses made in the presence of their children, who are old enough to understand, or other family members are not privileged. In fact, the Supreme Court held in Wolfle v.United States that a letter written by a husband to his wife was not protected by the spousal privilege because the husband had dictated the letter to a stenographer, who then transcribed it. Because the husband voluntarily disclosed the communication to the stenographer—a third party—its confidentiality was lost
The attorney-client privilege is this country’s oldest confidential communications privilege. This privilege protects confidential communications between a client and his or her attorney made for the purpose of obtaining legal representation. The purpose of this privilege is to encourage clients to make full disclosure to their attorney (or prospective attorney)—free from any concerns of possible consequences resulting from the disclosure. Thus, this privilege is for the personal benefit and protection of the client, and no one else.
Does the presence of your spouse or attorney during a communication affect the privilege? Whether a communication made by a client in the presence of the attorney and the client’s spouse is privileged depends on which state you are in. Specifically, courts in Pennsylvania and Colorado have protected both privileges when they intersect, while New York courts have held that both privileges are waived. In other jurisdictions, this question remains unresolved. Courts do agree, however, that if disclosure to a third party is reasonably necessary to accomplish an attorney’s scope of work, the attorney-client privilege is not waived. For example, the presence of an outside party with relevant expertise, e.g., an accountant or an interpreter to further the client’s legal representation, does not waive this privilege. In determining whether the attorney-client privilege applies to communications involving a third party, courts will consider 1) whether the client intended the communications to remain confidential and 2) the precise role of the third party.
Although the attorney-client privilege may protect certain third party communications, it is not an absolute privilege. Specifically, a party may waive—intentionally or by mistake—the protection of the privilege. Whether the disclosure of a single communication waives the privilege for all communications regarding the same subject matter, e.g., the client’s termination, or only with respect to the communication actually disclosed depends on the facts of the case and the particular court’s approach to the scope of the waiver.
As Colorado’s highest court aptly observed, “the effect of a spouse’s presence on acommunication between attorney and client is not entirely clear.” Thus, the safest course of action for clients is to keep attorney-client communications truly confidential—that means excusing a spouse from any sensitive discussion with an attorney to ensure that the attorney-client privilege is preserved.
This blog is provided to our readers for informational purposes only. It is not offered as legal advice. Communication of information through this blog does not create an attorney-client relationship. You should not rely upon information contained in this blog without first seeking professional legal advice. If you would like a telephone screening or consultation with a KCNF attorney, you are welcome to call 202-331-9260 to begin our intake process, or submit your legal issue at http://www.kcnlaw.com/Contact.shtml.
1 In a criminal case, the spousal privilege protects the defendant’s spouse from being forced to testify against him. For this immunity to apply, the defendant and the spouse witness must be currently married at the time of the prosecution. This privilege, however, may be waived by the witness spouse if he or she chooses to testify.