I have the pleasure of representing Virginians from all over the Commonwealth. And recently I have seen the following trend:
1. Spouse 1 – works full time, doesn’t have time to hire attorney to review contract.
2. Spouse 2 – concerned and loving, takes the time to find a lawyer, get a fee quote, complete retainer and get necessary contracts and information to the lawyer. Spouse #2 even helps coordinate meeting between spouse #1 and lawyer. Then I drop the hammer of bad and shocking news to Spouse #1. It usually sounds like this:
“I appreciate all that Spouse #2 has done to help you in retaining my services. It is your privilege to waive, but I must ethically notify you that by allowing them to join our conversation / meeting / email exchange, my advice and our conversation is no longer protected by attorney client privilege.”
Usually there is a silent pause.
Then I ask – “Does that make sense? It a third party is part of our conversation, it is no longer confidential and or privileged and should you share certain information with me, and I provide certain advice, I could see how later on waiving this privilege could be harmful.”
More silence.
Then, sometimes I get the following response: “Ok, so I won’t have him / her join the meeting – but I may come with a list of questions, is that ok?” Always okay.
I get it. Hiring a lawyer is a big decision. Changing jobs is a big decision. Often these are family decisions and one spouse should not make them without involving and consulting the other. So it makes perfect sense that both spouses would want to know in real time – whether the employment contract is binding / whether the non-compete is valid / whether the new offer runs afoul of the old contract etc.
But sadly, doing the right thing for a marriage and or family, does not change the law and the rules of attorney client privilege.
The general rule of thumb is: LEGAL ADVICE IS CONFIDENTIAL if shared only with the client. If others join the conversation, the privilege is gone.
Now, my understanding of doctor / patient privilege is different. There, it is the subject of the conversation that is confidential, not the doctor’s advice. We lawyers like to be different. And while I respect those clients who once advised of the privilege argument, march that mother, sister, brother and or spouse member right into our meeting – I still think it is always better to be safe than sorry.
So I promise I am not trying to be mean – or box your spouse out. I certainly am not trying to play favorites or cause marital problems. Rather, I am trying to protect my clients and the sacred privilege that exists between us. Even if that means they have to bring a list of questions their spouse wants answered.