As practicing matrimonial attorneys, our clients often face issues of confidentiality as applicable to custody, financial issues, competency and when the issue of the attorney's representation is the key issue in the dispute. During a divorce, emotions can run high among couples disagreeing about their children and their money.

Divorce attorneys often find themselves in a position where other professionals such as forensic accountants, vocational analysts and computer forensic experts are needed to analyze data, perform business valuations, trace separate property, locate hidden assets, generate lifestyle analysis reports, evaluate a party's vocational abilities and earning potential. An attorney may also retain consultants to review and critique forensic child custody evaluations.

Based upon the foregoing and given that "generally communications made between a [client] and counsel in the known presence of a third party are not privileged," the matrimonial attorney must ensure to the extent possible that a client's confidential information is preserved. People v. Osorio, 75 N.Y.2d 80 (1989). The burden of proving each element of privilege rests upon the party asserting such privilege. People v. Mitchell, 58 N.Y.2d 368 (1983).