Even those with no nose for news are likely to have heard about the attorney-client privilege in the context of certain recent legal proceedings. There is much confusion and misunderstanding swirling around this concept, even among individuals who should (and perhaps do) know better, so the intent here is that this will shed some light on the topic.
In order for this privilege to be invoked, an attorney-client relationship must exist. This may seem to be stating the obvious, but it takes more than slipping $10 – or any amount for that matter – to an attorney and saying, “Now this is a privileged conversation.” Although recommended in all types of cases, New Jersey family law practitioners are required by the Rules of Court to have a written agreement confirming their arrangement, with several specific requirements such as “a description of legal services anticipated to be rendered”. The agreement must be signed by both the attorney and the client, and a signed copy given to the client in order for the privilege to exist between them.
I have often told prospective clients to review my five-page retainer agreement carefully, let me know if any revisions or corrections are required, and when acceptable, sign it. They keep the original and we get a copy to keep in their file, forever. I also let them know that payment of the requested retainer at that time is appreciated, but not required in order for us to begin working as counsel on their behalf. Both of our autographs on the retainer agreement is required before we can hold ourselves out as having been retained by them in their particular matter.
So all of that happens and the privilege exists. Then what? What consequences flow from that fact? Not surprisingly, this too is governed by the Rules of Court and also by the Rules of Evidence. In essence, it means that communications between the attorney and the client are confidential and cannot be disclosed by the attorney unless either the client waives the privilege, there is an exception to the privilege, or it is “pierced” due to other circumstances.
The crime-fraud exception to the privilege has been a hot topic recently in the news. It is important in this context to distinguish among communications regarding past, ongoing, and future crimes and frauds. Those occurring in the past are generally privileged unless otherwise pierced, whereas the others – those which are ongoing or will be in the future – generally are not.
Another exception to the privilege is if the communication between the attorney and the client is made in the presence of or was disclosed to a third party. It is not uncommon in family law practice for a client, either prospective or existing, to bring a relative or friend to an attorney meeting to give support and be their second set of ears. Family law issues generally cause distress in the parties involved, so this is more than understandable. I let them know that while I have no problem with that personally, I am obliged to make them aware of the fact the presence of a third party means there will be no attorney-client privilege. Then I tell them my favorite example of this: a criminal lawyer met with his client who had been charged with murder. The client’s mother also attended the meeting. The client confessed to the murder during their meeting. The prosecutor found out that mom was there, and the lawyer was compelled to disclose the confession. More often than not, my clients say they’re not planning on confessing to any crimes or frauds, so it’s fine if the third party sticks around.
To sum it up, what you as our client communicate to us must be kept in strict confidence and cannot be disclosed to anyone: not the judge, your ex or future ex, or adversary counsel, unless you waive the privilege, there is an exception to the privilege, or it is “pierced” due to other circumstances. For example, the privilege was pierced in a case where a couple went to an estate planning attorney to prepare new Wills. The husband’s illegitimate child, who had a legal right to share in the husband’s estate, was disclosed by that attorney to the wife, who had no idea of that child’s existence until then. This was done despite the husband’s objection on privilege grounds, because it was necessary to protect the wife’s interests.
Perhaps it goes without stating, but of course we will disclose publicly what is necessary to represent you properly in your case. Our decades-long practice is to have clients review first all documents in draft form before sending them to the Court or to adversary counsel in order to protect your confidentiality.
In other words, you can feel confident knowing that what you communicate with the attorneys at the offices of Pamela M. Copeland will remain private, confidential, and safe. We’ve got your back! We hope this article clarifies and sheds some light on this hotly-debated and highly misunderstood topic which is much in the news today.
Pamela M. Copeland
Pamela M. Copeland is a New Jersey Supreme Court Certified Matrimonial Attorney, Mediator, and Collaborative Professional committed to providing you with the highest quality family law legal services at a reasonable cost.
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