How to Destroy Attorney-Client Privilege Without Really Trying
When it comes to seeking legal advice, leave your spouse at home
When it comes to seeking legal advice, mixing family with business can be a big mistake. Most business professionals don’t realize that bringing their spouse to a meeting with their attorney can be an even bigger blunder.
The attorney-client privilege guarantee of confidentiality is the foundational principle for effective relationships between attorneys and their clients. The privilege has been recognized for centuries and is said to “secure the orderly administration of justice” by allowing candid discussions between the client and attorney. Candid disclosure and confidentiality are essential to enable attorneys to provide the best, well-informed legal advice.
The “spousal privilege” is a distinct and also widely recognized testimonial privilege. In Colorado, husbands and wives, and partners in civil unions, cannot be examined for or against the other without consent, nor can either be examined without consent of the other as to communications made to each other during the marriage or civil union. This privilege promotes the public policy of protecting the “sanctity and tranquility” of intimate relationships from the discord which could be caused by adverse testimony about a partner.
By virtue of these protections, clients are free to confide in their attorneys for the purpose of seeking legal advice and to confide in their spouses or partners about legal matters. Most clients (and many attorneys) assume, therefore, that the two privileges, attorney-client and spousal, can work in tandem to protect communications involving both attorney and spouse or to allow attorney communications to be repeated to a spouse. Acting under this assumption, clients often arrive at initial attorney meetings or subsequent preparation sessions with a non-client spouse or partner believing that joint conversations will be protected under one or both of the privileges.
But not so fast.
In a recent, controversial 4-3 decision, the Colorado Supreme Court upheld a trial court order that a recording made by a lawyer during an initial client consultation was not protected by the attorney-client privilege. In Fox v. Alfini, third parties — the client’s parents — were present during the meeting with the attorney during which the recording was made. The court held that the non-client parents’ presence destroyed the claim of attorney-client privilege because there was no evidence that their participation was objectively “reasonably necessary” to the consultation, for example to facilitate communication due to diminished capacity.
The court’s decision is an important reminder that the presence of non-essential third parties, even family members, can destroy the attorney-client privilege. The court noted that Colorado law is more restrictive than other jurisdictions in this regard some of which only require a subjective reasonable expectation of confidentiality to protect third party involvement in privileged communications.
So what about spouses or partners? The Fox case involved parents rather than a spouse and does not directly speak to the question of combining the two separate privileges. This remains a gray area for Colorado businesses and individuals as our state’s appellate courts have not yet addressed the issue.
In a case in which the parties did not dispute that the presence of the spouse destroyed the attorney-client privilege, the Colorado Supreme Court acknowledged that (at least in Colorado) “the effect of a spouse’s presence on a communication between attorney and client is not entirely clear.” Courts in other jurisdictions have reached mixed results. Some courts have found that the presence of a spouse necessarily waives the attorney-client privilege; some find that the privileges can be meshed because of the inherent expectation of confidentiality with a spouse or the necessity of the presence of the spouse to protect the client interest.
It is common for spouses to want to attend meetings with counsel for support or because the business information discussed affects their family generally. It is your lawyer’s duty to keep information shared confidential, but when you invite another person into the room – even if it is your spouse — you risk losing your attorney-client privilege. At least one Colorado trial court has held that a three-way conversation among attorney, client and spouse was not privileged because the spouse’s presence “was in no way necessary for the protection of the client’s interest.” In light of the Fox decision, it appears likely that the standard applied in this decision will be applied in future cases in assessing the joint application of the attorney-client and spousal privileges.
Legalese aside, the blunt lesson for Colorado business owners and business attorneys from these cases is to be cautious. You and your business are not necessarily protected by privilege if your attorney and your spouse are in the room. Privileges are strictly construed, and the party asserting a privilege bears the burden of establishing it. Any joint communications with attorney and spouse run the risk of being disclosed where the spouse is a non-party. Don’t assume otherwise, and certainly discuss the issue with your attorney before involving your spouse in confidential communications regarding your personal or company’s legal matters.
About R. Stephen Hall: With two decades of experience, Stephen Hall is a leading Colorado business, employment and commercial litigation attorney with Tenenbaum Law. He has litigated and resolved many complex commercial disputes across a broad spectrum of business sectors including real estate, construction, financial services, intellectual property and insurance. Contact him at firstname.lastname@example.org or 303-919-1300.