Many people come to our office for their initial consultation and bring a friend or family member with them. While this makes sense to most people, to provide another set of eyes and ears, and also, to provide support and encouragement, it would violate the attorney-client privilege. The attorney-client privilege protects confidential communications between a lawyer and their client that relates to the reason the client consulted with the attorney. The privilege extends to all information exchanged during the communication including verbal discussions, written letters, emails, text messages, etc. If a client has confidential communications with an attorney, that communication is protected and cannot be disclosed by the attorney to anyone. Likewise, the client cannot be forced to disclose the confidential communication to anyone either.
The attorney-client privilege does have exceptions that may require the attorney (or the client) to disclose the communication. For example, if the client is seeking legal advice to commit a criminal act, the privilege does not apply. Also, the privilege does not apply if a third party is present during the communication, unless that third party is essential to the attorney-client relationship (for example, an interpreter, or a parent if the client is a child). It is typically in those situations where the client brings a third party friend or family member to the consultation where the need to discuss the attorney-client privilege arises.
As the privilege belongs to the client, the client is free to waive the attorney-client privilege to allow the third party to be present for the consultation. However, there are risks to waiving the privilege, as the client or the attorney (or the third party) could be forced to testify or answer questions about what was discussed during the meeting. If a client is meeting with an attorney to discuss seeking or defending legal action, the client would not want the attorney or third party to be required to talk about the matter discussed. It could be harmful to the client’s case for such confidential communication to be revealed. Clients often ask how anyone would know that a third party was present for the meeting. The short answer is they would not, unless they do! For example, someone could see the client and third party leaving the attorney’s office and then ask the client on the witness stand about the meeting, or subpoena the third party to a hearing and ask about the meeting. Being under oath, the client or third party must tell the truth and disclose the presence of the third party, if asked.
The lawyers at Parnell, Michels & McKay always take the conservative approach and advise the client not to waive the attorney-client privilege. If you have questions about the attorney-client privilege and how it applies in your situation, contact one of the experienced attorneys at Parnell, Michels & McKay, PLLC.