The attorney-client privilege prevents people from revealing confidential communications between defendants and their lawyers. (See The Attorney-Client Privilege.) But what happens when a third person is in the room during a meeting between attorney and client?
The general rule is that, by allowing a third party to be present for a lawyer-client conversation, the defendant waives the privilege. That generally means that the prosecution can force the third party to reveal the contents of the conversation.
Despite the general rule, there’s an exception in most states: In general, when a third person is present, the attorney-client privilege continues to apply if that third person is there in order to aid the cause. Put more specifically, the third person must be present while fulfilling a role that furthers the defendant’s legal representation. The person might be part of the lawyer’s staff, an outside party with relevant expertise (for instance, an investigator), an interpreter, or even a relative who acts in an advisory role.
When determining whether the attorney-client privilege applies to a conversation involving a third person, courts generally consider:
Courts use words like “essential,” “necessary,” and “highly useful” to describe roles that jibe with the attorney-client privilege. Whether the role fits the bill is a determination that depends on the circumstances.
A defendant might very well expect confidentiality when talking with a lawyer in front of a loved one. And it may be unlikely that the prosecution ever finds out about the meeting or calls the loved one to testify. But, if the prosecution tries to force a friend or loved one to the witness stand, then the role that this person played becomes crucial.
In one Arizona case, for example, the parents of a witness who faced criminal charges sat in on conversations with the lawyer and provided advice and guidance to their son. The parents had sought out and paid for the lawyer. The court said that the presence of the parents, who had “an understandable parental interest and advisory role in their minor’s legal affairs,” didn’t defeat the attorney-client privilege. That meant that a defendant couldn’t question the witness about his conversations with his lawyer. (State v. Sucharew, 205 Ariz. 16 (Ct. App. 2003).)
On the other hand, a Missouri court found that a defendant charged with second degree murder had waived the attorney-client privilege because of a family member’s presence at a client-lawyer meeting. During a prior divorce case, the defendant brought her daughter to a meeting with her family law attorney. Because the daughter wasn’t essential in conveying information to the lawyer and wasn’t reasonably necessary to protect her mother’s interests, her presence at the meeting destroyed the privilege. So, the family law attorney’s testimony about the meeting—given at the murder trial—was admissible. (State v. Shire, 850 S.W.2d 923 (Mo. Ct. App. 1993).)
Contrast that situation with a civil case where another daughter was present for lawyer-client conferences. In the civil case, the defendant’s daughter was there for her mother’s conversations with her mother’s attorneys. The mother was elderly and dealing with litigation related to a traumatic event. The daughter chose the law firm for her mother, transported her to the meetings, and put her at ease so she could communicate with her lawyers. The daughter also had relevant information and could aid her mother’s memory. So, the court found that the mother had a reasonable expectation of confidentiality, and that her daughter was acting as her agent. In short, the attorney-client privilege applied. (Stroh v. Gen. Motors Corp., 213 A.D.2d 267 (1995).)
The law on the attorney-client privilege is complex and can vary in subtle ways from one state to another. That’s why you should rely on a lawyer for advice—and a full explanation of the law. If you want a third person to be present for a lawyer-client meeting or are concerned about such a person’s presence, talk the issue through with your attorney. And always check in with a lawyer before discussing your case with someone else.