The attorney-client privilege unexpectedly entered our national political discourse in mid-April, 2018. After FBI agents executed a search warrant for the offices of Michael Cohen, President Trump’s personal attorney, the president tweeted, “Attorney-client privilege is dead!” Is President Trump correct? Do divorcing clients – who often communicate with their attorneys about the most sensitive and private topics in their lives – need to worry about whether their communications are no longer protected?
Despite President Trump’s emphatic assertion, the attorney-client privilege is very much alive and well. In general terms, the attorney-client privilege protects (A) communications (B) between privileged persons, i.e., attorney and client, (C) in confidence (D) for the purpose of obtaining or providing legal assistance for the client. The privilege is based on the assumptions that good legal representation requires clients to fully disclose their problems and clients will only be fully forthcoming to a lawyer if they assume their communications are protected.
But not all communications with attorneys are privileged. Therein lies the rub. Because the privilege can potentially hinder the Court’s ability to ascertain the truth, the privilege is (and always has been) subject to various exceptions. For example, the attorney-client privilege does not protect communications between an attorney and client that were made to further a criminal or fraudulent objective. This is known as the crime-fraud exception. Fortunately, when working with an ethical attorney, most family law clients (and family law attorneys) have nothing to fear in the crime-fraud exception.
There is one exception that does frequently arise in family law practice: disclosure to third parties. When seeking advice from a family law attorney, many emotionally upset clients (understandably) want to bring along a trusted friend or family member for support. However, the attorney-client privilege only protects communications between attorney and client. Generally speaking, the mere presence of a third party – a friend, significant other, family member, etc. – has the effect of waiving the privilege. Similarly, cc:’ing a non-privileged person on an email to your attorney waives the privilege with respect to that email. Clients are frequently surprised when we ask their support person to leave the room, but we do this only to ensure that our clients’ interests are protected.
Contrary to the president’s high-profile and much-discussed tweet, you can be assured that the attorney-client privilege is not “dead”; you can and should continue to speak openly to your family law attorney about the issues concerning your case, with confidence that your communications are protected under the law. But you also need to be aware of circumstances that could nullify the privilege, potentially making public that which would otherwise be protected.