The attorney-client privilege is one of the oldest and most widely-accepted privileges for preserving confidential communications, dating back to the 16th century. Most people know that the privilege prevents an attorney from revealing a client’s confidential information, from using that information to the disadvantage of the client, or from using the information to the advantage of the lawyer or a third person. The idea behind the privilege is that it helps clients to engage in open and honest dialogue with their attorney, which in turn allows the attorney to provide more effective legal representation.
But what many don’t know is that, like every good rule, there are exceptions. And one of the big exceptions to preserving confidentiality through the attorney-client privilege is the presence of third parties, including parents and spouses, during discussions. While it seems logical to assume that confidentiality would be preserved when talking with a lawyer in front of a parent or spouse, unless they are jointly represented by the attorney, it's likely that their presence is doing more harm than good.
It is well-settled among legal authorities that the presence of an unrepresented third-party – even a spouse or parent – waives the attorney-client privilege. In fact, some courts have held that where a client, their spouse and an attorney discuss otherwise privileged information, both the attorney-client privilege and the spousal privilege are waived, potentially making for a big legal mess.
Generally, unless a person other than the client is essential to the legal representation or necessary for the client to obtain legal advice (for instance, in the case of a client with diminished capacity to handle their own affairs, or in the case of a corporate officer acting on behalf a corporate client), that person’s presence will cause the privilege to be waived. And to make matters more confusing, what is or is not considered “essential” or “necessary” varies widely among jurisdictions.
In the end, the safest and most reliable way to assure that the privilege is preserved, is to ask your loved one to wait in the lobby while you speak to your attorney. But if you feel they are essential to the conversation, then that issue should be discussed with your attorney at the outset of the representation, and the reasons for your conclusion should be documented in any correspondence establishing the engagement of counsel.
If you’d like more information about the attorney-client privilege, we’re here to help. You can reach us at (248) 477-6300 or visit our website