Divorces, even amicable ones, are stressful situations, possibly the most stressful of a person’s life if they are unfortunate to experience one. Statistically though, roughly half of all married couples will divorce. In those trying times, people often reach out their close friends and family members for care, leaning on them for their emotional support and guidance. Sometimes this even extends to meeting with attorneys to discuss their divorce proceedings, but this can prove to be a costly mistake in a high risk situation like a heated divorce dispute.
So what’s the problem with having a close friend or family member in with you while you meet with your attorney?
Attorney-Client Privilege: The Ultimate Privacy
Attorney-client privilege is a legal concept that protects communications between a client and their attorney. It prevents an attorney from being compelled to testify as to what the client and attorney discuss or what the client tells the attorney. It is one of if not the most important privileges that a person has in an adversarial proceeding like court. It allows you and your attorney to freely discuss any issues you have without fear of being forced to reveal that information in court. Without this privilege it would be almost impossible for a lawyer to properly assist a client and give candid advice.
The attorney-client privilege however can be waived, either purposefully or accidently. Communications made with an attorney that are done in order to commit a crime or a tort for example are not protected under attorney-client privilege. Chief among the exceptions though involve a privileged communication either being disclosed purposefully by a client or communicating privileged information in the presence of individuals who are not his or her attorney or a part of the attorney’s staff.
The problem with having your friend or family member in with you in a meeting with your attorney is that it destroys the attorney-client privilege. Your friend or family member is not your attorney and not a part of your attorney’s staff. By including another person in on your attorney meeting, you have inadvertently waived attorney-client privilege. Thus, anything that you and your attorney talk about while the third person is present is not confidential and the third party may be forced to testify against you as to what you said. Not only is this an incredibly awkward situation for the third party to be in but it reduces the effectiveness of your lawyer to almost nothing if the other side knows everything that you and your lawyer have discussed.
Conservative wisdom would say that it is never a good idea to have a third party like a friend or family member in on an attorney meeting with you, but what if you are an emotional wreck and need the support of your good friend? Is there any way to protect the privilege and get the support you need?
Third Party Waiver
The answer in North Carolina at least is yes. A recent appellate level court case in Raleigh illustrates the problem with having a third party present during meetings with an attorney and a way to avoid destroying the attorney-client privilege.
The court case is Berens v. Berens, involving a divorce between husband and wife. The wife, Mrs. Berens, had a trusted friend that accompanied her to meetings with her attorney. Mrs. Berens and her friend signed a document called a confidentiality agreement that allowed the friend to sit in on the meetings with the attorney as well as review any documents generated by the attorney for the trial. The document specifically specified that: Mrs. Berens’ friend was a designated agent acting on her behalf; the friend would limit her communications regarding the divorce proceeding to only Mrs. Berens, her attorney and the attorney’s staff, and; Mrs. Berens was not waiving her attorney client privilege by allowing her friend to participate and view privileged communications.
Unfortunately for Mrs. Berens, her husband’s attorney viewed the presence of this third party as a waiver of her attorney-client privilege. Her friend was subpoenaed and ordered to testify, as well as to produce any documents that the friend had access to that were related to the trial. The trial level judge agreed with the husband that the presence of a good friend destroyed attorney-client privilege and ordered the friend to comply with the subpoena.
North Carolina Agency Protection
Fortunately for Mrs. Berens, the appellate level court overturned the lower court’s decision. The decision of the appellate court hinged on the fact that the friend had explicitly been made an agent of Mrs. Berens. Simply speaking, an agent is a person who is authorized to act on behalf of another person, creating a legal relationship between the two people. Agents, whether they are acting as an agent for the attorney or for the client, are recognized under North Carolina law as not destroying attorney-client privilege when present in a meeting or when viewing sensitive materials or documents. This understanding of agency and the attorney-client privilege allows for others acting on behalf of one party or another, to participate in the preparation of a client’s case.
In this situation, what proved to be the overwhelming factor in deciding that the friend was an agent was the specific written out agreement that declared that the friend would be acting as Mrs. Berens’ agent. Without the agency agreement in place, the friend would have just been that, a friend, and a friend is just a third person that destroys the attorney-client privilege.
Be Careful Whom You Trust; Consult a Divorce Attorney
No matter how much you trust a friend or family member to advise you or help you out, you should always consult an experienced divorce and family law attorney when going through this painful and stressful process. The attorneys at Remington & Dixon, PLLC in Charlotte can help represent your interests in a divorce proceeding and advise you as to your best course of action. at (704) 247-7110.
Jennifer is a founding partner at Remington & Dixon, PLLC. Jennifer concentrates her practice in the areas of family law, wills & estates, unemployment benefits appeals, and traffic. At Elon University School of Law, Jennifer was the vice president of the Public Interest Law Society and a member of the Family Law Society. During law school, Jennifer interned at the Elon University School of Law Field Placement Clinic with Legal Aid of North Carolina where she represented clients in domestic violence court proceedings.