Advising Clients and Their Spouses: An Issue of Privilege

Guest post by Jason Miller.

Most attorneys have encountered this situation: at a meeting with a client, the client shows up with his or her spouse. The spouse is not a client. Normally, what you tell your clients is privileged against disclosure. And what your clients tell their legally-recognized spouses is generally privileged too. But what happens when the two privileges bump into each other?

There is no attorney-client-spousal privilege.

This is a practical situation attorneys deal with quite often, but there is surprisingly little law on this point (and the few relevant authorities are in conflict). Unless you happen to be in a jurisdiction with clear authority, you face uncertainty. The loss of the attorney client privilege could hurt your client and place you on the hook for malpractice, unless you handle it the right way. There is a the mess in the attorney-client-spousal privilege situation, and you must take steps to protect your client and yourself when you are in it.

The legal mess

Most lawyers understand the importance of the attorney-client privilege. And it is well-known that if a true third party is present during an attorney-client conversation (or if the client repeats the communication to a third party) destroys the privilege. The same rule applies to the spousal or marital communication privilege, which covers conversations between spouses — and is distinct from the spousal privilege against testifying in court that often shows up in fiction.

When these two privileges interact, though, it creates a legal mess. Does the presence of the attorney destroy the spousal communication privilege while the presence of the spouse is simultaneously destroying the attorney-client privilege? Or does the attorney-client privilege shield one part of the three-way conversation and the spousal communication protect the other?

The Colorado Supreme Court once remarked “that the effect of a spouse’s presence on a communication between attorney and client is not entirely clear.”   The remark is spot on. Federal courts in Pennsylvania and Colorado have protected both privileges when they bump into each other. But New York’s courts, on more than one occasion, have held that both privileges are destroyed when an attorney and a non-client spouse are present. Unless you are in New York, the situation is unresolved.

Treatises are split on the issue. Mueller and Kirkpatrick’s Federal Evidence says that: “Disclosure to outsiders does not result in loss of protection if disclosure itself is privileged, as might occur if the client (or the lawyer on the client’s behalf) discloses the substance of a communication to the spouse of the client (where the spousal confidences privilege might apply).” Epstein’s treatise on the attorney-client privilege agrees with them, but the applicable ALR takes the opposite position and says that each third party destroys the corresponding privilege.

The general law on the attorney client privilege and “helpful” third parties, such as agents, may be helpful in sorting out the legal mess in some circumstances. An agent is often covered by the privilege. The presence of someone who shares a common legal interest, “interprets,” helps the attorney and client communicate, or whose presence is necessary for the client to obtain legal advice usually does not destroy the attorney client privilege. But some courts have rejected the application of the attorney client privilege when a relative is present for purely moral support. The Third Restatement takes this position and requires a “useful purpose.”  Many times a spouse is present truly as moral support. It is important to take the steps necessary to protect yourself and your clients in these situations.

Protecting your clients and yourself

Obviously, you need to comply with the law of your jurisdiction. If you are in New York, or have reason to believe that the spouse’s presence will destroy the attorney-client privilege, do not let it become a problem. You can put it delicately and explain how the opposing attorney can create a problem, but it can still be awkward to tell a trusted spouse that he or she needs to leave the room during this important conversation. Whatever jurisdiction you are in, there are concrete steps you can take to protect your client’s privilege.

What you can always do is build a record to support the privilege. Your engagement letter and other initial correspondence should include standard language admonishing confidentiality. If you think some special situation — for example, the spouse acting as an agent — might apply, document it in writing and preserve the document in your file.

In jurisdictions without a set rule, deciding how to explain the issue to your client can be difficult. Discussing the risk that the privilege will be undermined is a double-edged sword. You certainly do protect yourself by warning your clients — especially now that you are armed with the knowledge from this article. But a reasonable belief that a conversation is confidential could weigh in support of preserving the privilege if it is challenged in court. However, it will be hard for your clients to claim that they believed the conversation was privileged when you warned them otherwise.

The safest and truest course is to explain the risk to your client and ask the spouse to wait in the lobby so that the privilege is unquestionable preserved. But many attorneys seem to simply make a judgment in deciding how to deal with a non-client spouse. Some attorneys prefer the benefits of having the spouse present, or at least of avoiding a potential argument with their clients about the issue. They expect most conversations with clients and their spouses are simply not likely to be inquired in to at a deposition or a trial. When a topic is particularly sensitive or a conversation is more likely to be investigated by opposing counsel (such as deposition preparation), some attorneys are more zealous in ensuring that the attorney-client privileges attaches and that the room is clear. But that’s a risk that attorneys and clients should not have to face.

Fixing the problem

In many jurisdictions the common-law privileges have been codified. This presents some risk in that courts may hesitate to “stretch” privileges beyond the strict confines set by the legislature, but it also presents an opportunity to change the law without putting anyone’s clients at risk. Lawyers and bar associations should advocate for an explicit statute or rule to protect the overlap attorney-client and spousal communication privileges. Such a rule is the only way to respect the importance of both privileges and prevent legal technicalities from getting in the way of the practical needs of lawyers, their clients, and their spouses.

Jason C. Miller is a commercial, election, and criminal litigator in Grand Rapids, Michigan. He is licensed to practice law in Michigan and Colorado. His book, Excelling in Law School: A Complete Approach, was recently published by Wolters Kluwer Law & Business.

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