Posted by: Wade Davies on Nov 1, 2020

Journal Issue Date: Nov/Dec 2020

Journal Name: Vol. 56 No. 9

 

Protecting Privilege in the Office

Criminal defense lawyers meet with clients and potential clients under difficult emotional circumstances. Lawyers have to develop relationships with clients, and we need them to tell us the truth in order to help them. Sometimes it takes time to develop a good working relationship with a client, and counsel have to be sensitive to clients’ emotional needs. Often, clients want to bring a friend or family member for support when they meet with lawyers. Imagine how stressful and strange it must be to come to a law office and be asked extremely difficult and personal questions. Sometimes potential clients have just been through the trauma of being arrested.  

Also, people who are experiencing trauma have trouble taking in and comprehending information. So it makes sense that people want to bring someone they trust to the attorney-client meeting. Other times, especially when a client is young, family members want to come so they can understand the situation. This is especially true when family members are paying for the representation.

What is the best way to deal with this situation? Sometimes it may be tempting to have the friend or family member sit in on the meeting, especially when you think it is likely they have discussed the facts of the case already. 

We know that the attorney-client privilege does not protect conversations when a third party is present. But is there a real risk that anyone is ever going to try to subpoena or otherwise try to obtain what was said during the attorney-client meeting? 

A recent civil case decided by the Court of Appeals on an interlocutory appeal suggests there is such a danger. In Pagliara v. Pagliara, the court held that a series of conversations between a client and her domestic relations lawyer and later a criminal defense lawyer were not privileged because the client had brought a friend for support.1 In that case, the lawyer correctly informed the client that the attorney-client privilege would not protect the communications if the friend stayed in the room, but the client decided that the friend would remain. The friend also attended a subsequent meeting with a criminal defense lawyer to get advice on criminal law implications arising in the divorce. 

The trial court held that the communications were not privileged, and even if there were meetings with the third party not present, the conduct resulted in complete subject matter waiver. The privilege only applies to statements made in confidence, and the court found that the discussion in the presence of the third party shows there was no desire for secrecy. On interlocutory appeal, the Court of Appeals agreed that the statements made in the presence of the third party were not privileged. On the issue of whether there was waiver of privilege as to the entire subject matter, the court did not have to address whether the subject matter waiver doctrine should be applied. The court looked at the specific facts of the case. The Court of Appeals noted that the party asserting privilege bears the burden of proving the privilege applies. Because the client could not prove which meetings the friend attended and which ones she didn’t, she failed to show any privileged communications.2

A third party will not always waive the privilege. The Court of Appeals reiterated that waiver does not occur if the third party is an agent of the client.3 But a family member or friend who is just there for support is not an agent.

While it might not happen often that a subpoena is issued for an attorney’s records or testimony regarding what was said in a client meeting, it is just as likely to happen in a hotly contested criminal case as it is in a domestic case.

How can we prevent this problem and maintain good relations with the client? Here is what I suggest when someone wants to bring a family member or friend. Generally start the meeting with everyone present. Spend some time finding out who each person is and their role. Then you can give them an outline of what you hope to achieve in the meeting. You can tell them that first you want to talk about the procedure that might be used in the case. (I usually show a PowerPoint or draw it on the board as a timeline.) Then tell them that the attorney-client privilege is something that is extremely important to the case, and that technically the privilege does not apply if someone other than the client is in the room. Tell them that you take confidentiality very seriously and for that reason you will ask everyone else to step out after the discussion of the procedure.  You can invite people back in at the end of the meeting to see if they have any questions and if funding needs to be discussed. 

It was important in the Pagliara case that the client could not show which meetings the friend attended. Since it is the burden of the party asserting a privilege to prove that it applies, it is helpful to jot down one sentence in the notes or memorandum of the meeting that the friends/family left the room prior to the discussion of the facts.  

Using this approach has another benefit — sometimes, especially with family, it is not entirely clear that the client wants anyone else there. Parents may want to be present, but the client might have things to tell you in confidence that the parents don’t know.  Getting the family out of the room often improves communication. 

While it is understandable that many potential clients may want supporters with them, that support can usually be given by coming with the client to the meeting and sitting in on general introductions and discussions of procedure. The client can often get comfortable during the first part of the meeting and get ready to discuss the facts in a way that protects the privilege. It has been my experience that most people understand and appreciate your caution when you put your request for family and friends to step out in positive terms regarding the importance of the privilege.

Protecting Privilege in the Jail

In one of my early columns, I addressed the importance of preserving the attorney-client privilege for incarcerated clients.4 The best way to communicate and to make sure that communication is privileged is still to visit in person. In addition to geographical problems, the pandemic has made that more difficult and less safe. Recently, I visited a local detention facility, and I was the only person, including my client, wearing a mask. But I had to talk to him, and there was no alternative.

Since the previous column, many more federal inmates have access to email. It is now common for counsel to get a request to sign up to receive email from an inmate. While it would be convenient to be able to have meaningful communications by email, those emails are not confidential and not privileged.  There is a bipartisan bill currently pending in Congress called the Effective Assistance of Counsel in the Digital Era Act, but it has not yet become law. Don’t email anything confidential.

Many inmates in local facilities now have access to tablets from which they can make videocalls with their families. Again, those are recorded and monitored.

There are now some privileged video programs that can host privileged communications.  Just be very careful with them. The first time I used one to speak to a client in another part of the state, I spent a lot of time setting it up and making sure it was to be a privileged communication. Near the end of the conversation, I saw my client turn and talk to someone else — there was a corrections officer in the room with him. He didn’t realize that was a problem and didn’t tell me.

The rules on getting an attorney-client privileged phone call still vary from institution to institution. It is important to get confirmation from the facility that the call will be unmonitored, and it is best to begin both video and phone communications with a statement to the effect that you have been informed that this is to be a privileged and unmonitored conversation and if there is any monitoring it is being done illegally and should immediately cease. That puts on the record that there is an expectation of confidentiality (and clients seem to like it when you say that listening would be illegal).

Confidential communication in a cornerstone of the American legal system. We have a duty to be careful to preserve the right for clients to consult with us in confidence.

WADE DAVIES is the managing partner at Ritchie, Dillard, Davies & Johnson PC in Knoxville. He is a 1993 graduate of the University of Tennessee College of Law. The majority of his practice has always been devoted to criminal defense. Davies is a member of the Tennessee Bar Journal Editorial Board.


NOTES
1. Pagliara v. Pagliara, No. M2019-01397-COA-R9-CV, 2020 Tenn. App. LEXIS 299 (Ct. App. June 29, 2020).
2. Id. at 9-10.
3. Id. at 9.
4. “Crime & Punishment: Protecting the Attorney-Client Privilege for Detained or Incarcerated Clients,” 47 Tenn. B.J. 26, November 2011.