Seeking legal advice often can be an extremely stressful undertaking. Employees, particularly those who work at a company conducting an internal investigation, will often have serious questions about personal exposure and professional consequences. It therefore is not uncommon for a client to bring a spouse for support at an initial attorney consultation or at other key junctures. Spouses also may be present incidentally for other more informal attorney consultations that take place during the course of one’s personal and professional life, such as at the firm holiday party or the chance encounter on a plane or train en route to a corporate function.
The impact of the presence of one’s spouse on the extent to which such a communication is subject to disclosure to other parties, however, is a complicated question and requires an analysis of the various potential privileges that are implicated. This article examines the attorney-client privilege and its requirement of confidentiality in this context, which is far from uniform under state and federal privilege laws. It also looks at the spousal testimonial and communications privileges and their limited applicability to an attorney consultation. The third part analyzes the potentially broader applicability of work product protection to attorney consultations because of the differing requirements and waiver standard. We conclude by emphasizing the need to remain alert to the impact of spousal presence on the possibility of disclosure, due to the uncertainty related to choice of law and interpretation of the facts by a reviewing court.
Privilege and Presence
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