The Attorney-Client Privilege When a Third Person Is Present

The attorney-client privilege protects (most) private conversations you have with your attorney, allowing you to be honest without worrying that your words could later be used against you. But what happens if someone else—like a friend or family member—joins you in the room or gets copied on email with your attorney? Does their presence destroy your legal privacy? It can.

What Does the Attorney-Client Privilege Protect?

The attorney-client privilege is a legal rule that keeps communications between you and your lawyer confidential. It covers what you say, write, or otherwise communicate when seeking or receiving legal advice. Your lawyer can't reveal those discussions, and other people usually can't force them to.

This privilege encourages open and honest communication. Without it, people might hold back key facts their lawyers need to give strong advice.

Privileged communications typically include:

• in-person or phone conversations with your lawyer about legal issues, and
• letters, emails, or messages between you and your lawyer.

The rule only applies if the communications are made in confidence and intended to stay private, and the privilege hasn't been waived.

How Is the Attorney-Client Privilege Waived (Lost)?

Waiving the attorney-client privilege means you've given up or lost its protection, intentionally or inadvertently. Once waived, that private information can become fair game in court.

Intentional waiver. You intentionally waive your attorney-client privilege by sharing privileged communications with someone outside the lawyer-client relationship. For example, you forward your lawyer's email to a friend for their opinion.

Inadvertent waiver. Sometimes, you lose the privilege by mistake, such as by copying someone on an email who shouldn't be copied. If you took reasonable steps to protect the information (such as labeling it private) and promptly asked the unintended recipient to destroy the email, a court might decide you didn't waive the privilege. But if you blind copied a bunch of people and did nothing about it, you've waived the privilege.

How the Presence of a Third Party Can Waive the Attorney-Client Privilege

The attorney-client privilege only applies when you're communicating privately with your lawyer. Including someone else in those communications can destroy that confidentiality. The general rule is that, by allowing a third party (including loved ones) to be present for a lawyer-client conversation, the client waives the privilege.

You 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, the role that this person played in the communications becomes crucial. So, even though you want your friend or family member in the meeting for moral support, your defense attorney will likely tell that person to wait outside.

Are There Exceptions? When Doesn't the Presence of a Third Party Waive the Privilege?

Despite the general rule, most states make exceptions when a third party is necessary to help the lawyer or client communicate effectively. Put more specifically, the third party must be present while fulfilling a role that furthers the defendant's legal representation.

When determining whether the attorney-client privilege applies to a conversation involving a third person, courts generally consider:

• whether the defendant intended the communications to remain secret, and
• the precise role of the third person.

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.

Lawyer's Staff Are Not Third Parties

First off, the attorney-client privilege generally extends to the lawyer's staff, such as paralegals, legal assistants, and investigators. This rule also typically applies when an outside consultant or contractor acts so closely with a company that they're essentially an employee. Courts often treat them as part of the attorney-client team, keeping communications protected.

Interpreters, Translators, and Specialists

The privilege also remains intact if a third party, such as an accountant, translator, or technical expert, helps the client or lawyer understand complex information. For example, if an accountant translates financial records so your lawyer can advise you, the privilege still applies. Or if the client and attorney can't communicate due to a language barrier, the presence of an interpreter (even a family friend) won't generally affect the privilege.

Agents of the Client

In some cases, privilege covers communications involving a client's agent, such as a client's personal assistant or tax preparer. Say a client has their assistant call their lawyer because the client is being arrested. If the client regularly employs that assistant to handle confidential communications, a court would likely consider the assistant to be the client's agent, and the assistant's communications with the attorney regarding the client would remain privileged.

Client's Family Members or Caretakers

The biggest question usually arises when a client's family member or loved one is the third party. Courts generally require proof that the third party's role was necessary to help the client communicate or understand legal advice. For example, an elderly client may bring an adult child to help remember details or understand complex terms. Or if the defendant is a child, the presence of the parents in a legal meeting won't normally defeat the attorney-client privilege. But having a friend or relative present merely for support will defeat the privilege.

Examples of Third Parties' Presence in Attorney-Client Meetings

Below are examples of court cases analyzing whether the presence of a third party defeats the attorney-client privilege.

Parents of a Child

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).)

Family Member

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).)

Family Member and Elderly Client

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).)

How to Protect Attorney-Client Privilege: Best Practices for (Not) Involving Third Parties

It's surprisingly easy to waive the attorney-client privilege without realizing it. Most people can relate to wanting support and advice from others on legal matters, but it's risky. Here are some tips to follow.

Meet privately with your attorney. Having your spouse or a loved one present while meeting with your lawyer might make you feel better, but it can harm your case. Keep your meeting with your attorney private and ask your loved ones to wait nearby.

Limit email sharing. Don't copy your friends, family, or business partners on lawyer emails. You should only send communications directly to your lawyer's office. If your lawyer provides you access to a secure email account or dropbox, use the secure service for your communications. Also, it's best not to send emails on work computers or through other shared computers or accounts.

Don't discuss the case in public. Don't discuss your case at a café or over speakerphone. Eavesdroppers count as third parties. You also don't want to talk about details over the phone with a lawyer if you're sitting in jail.

What Happens If the Privilege Is Waived?

If privilege is waived, opposing counsel might seek to have the communications entered into evidence. Even inadvertent waivers can be exploited strategically. Some jurisdictions allow lawyers to take corrective steps if the disclosure was truly accidental, but courts won't always accept that defense.

Losing privilege can have real consequences, from exposing inculpatory statements or revealing your strategy to undermining credibility.

Consult a Lawyer

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.