Attorney Client Privilege and Virginia Divorce

Posted on Apr 16, 2018 by Katie Carter

As you’re probably already aware, when you tell your attorney secrets, they are generally protected by attorney client privilege. That means that the attorney can’t tell anyone what you’ve told them.

Of course, ethically, there are a few exceptions – like, if you tell us you’re about to commit a crime, particularly if that crime would cause injury to other people. We can also share information in order to comply with a court order, or to defend ourselves in malpractice suits. If you want to read the rule in its entirety, feel free.

For most communications, though, what you tell us is privileged, and we can’t reveal it to anyone else. As you can probably imagine, there are very few scenarios that arise where our clients tell us they’re going to go out and commit a crime, especially in family law. Maybe that happens to criminal defense attorneys, but I can tell you honestly that I’ve never even considered breaking privilege over something like that – it just doesn’t happen very often.

Attorneys take their duty of confidentiality very seriously. I remember hearing a pretty funny story when I first started. One of the other attorneys in my office had represented a sort of family friend. After the case was over, the former client saw her attorney and her husband out at a party. She started discussing her case in front of the attorney and her husband, and the husband looked confused. “But,” the former client said, also confused. “I thought she’d have told you!” “No!” our attorney said, aghast. “I can’t share the details of my cases!” The client laughed, the attorney laughed, and no truly sensitive information was shared (and, of course, by that point, it would have likely been irrelevant anyway). But that just goes to show how seriously we take the privileged nature of our conversations.

That doesn’t mean, though, that short of threatening to murder people, that you can do or say whatever you want. You can break privilege yourself, and put yourself in a pretty tricky situation – and, if you do that, it won’t matter how tight lipped your attorney has been. So, definitely, when it comes to confidentiality and attorney client privilege, you should tread very carefully.

The two most common ways we see attorney client privilege defeated:

1. Bringing other people to meetings with your attorney.

We talk about this a lot in the context of our initial consultations.  Though you certainly can bring someone else, and many people do, it does defeat confidentiality. Once there’s a third person in the room, the attorney’s communications with you are no longer privileged.

That’s not to say you should never bring someone in, but you should be very selective about it. There are all sorts of issues that can come up when you have someone else in the office with you, but none is more important that the fact that, at that point, you’ve waived the confidentiality of your communications.

A lot of times, we try to compromise to mitigate the risk. Though you may want your mom or your dad or your sister to sit in on your appointment, to the extent that we’re discussing confidential things related to case strategy, we may ask whether you’d prefer to leave them in the waiting room. That’s not to say that you have to agree; certainly, privilege is yours to waive if you prefer. But it’s also our job to let you know the potential impact of that third set of ears in the appointment, and to let you make that decision for yourself.

2. Sharing emails or other communications with a third party (especially your husband!)

This one is probably even bigger – it certainly happens more often, and with more damaging effects.
If you get an email from your attorney, it is a privileged communication. You break that privilege, though, if you forward that email on to someone else.

You might be surprised at how often a client forwards an email from us to her husband! To me, it seems preposterous – after all, isn’t hiring a divorce attorney definitive proof that the two of you are no longer on the same side? Why would you share that information with him?

Whatever your justification for sharing that communication, it’s best to discuss potential implications with your attorney first. If it’s just for a “so there!” moment to prove that you were right about something, it’s probably not necessary anyway. Your attorney can draft a letter to opposing counsel, or to your husband himself if he isn’t represented by counsel, to let him know what’s happening, what the potential legal ramifications may be, etc. While your attorney only represents you and can give your husband no legal advice, these communications should be carried out through your attorney. You don’t need to share information with him to advise him of the law or the fact that your position is more correct. Use the proper channels to avoid defeating confidentiality. After all, that’s what you pay your lawyer for!

If, as sometimes happens, it’s because you’ve grown disenchanted with your attorney, it’s still better to talk to your attorney first, rather than sharing your concerns with your husband. You can fire your attorney and hire a new one, or discuss with your attorney to repair the issues in your current arrangement. Often, people are confused by their attorney’s choices, and a conversation can clear up the issues and pave the way for a more successful relationship. Sharing this information with your husband only highlights the weaknesses.

Whatever else your reasoning might be, I’d tread very carefully. I can’t think of a single reason why it’d be beneficial to you to break attorney client privilege. Especially if what you share references case strategy, the damage you do can be immeasurable.

What are the risks to me if I waive attorney client privilege?

Revealing case strategy

There are lots of risks associated with waiving attorney client privilege. For one thing, you let the opposing party know what you’re planning on doing. Instead of taking an offensive position, this forces you to take a defensive position. Any element of surprise, or any technical expertise that your attorney may have been hoping to employ, could be lost. A head’s up can allow him to prepare in advance for something that he might not have otherwise have seen coming. It could also clue him in to weaknesses in your case.

Making an attorney a witness

In some cases, especially where this type of behavior has taken place, the attorney can also get called as a witness. We have a case like that right now, where the husband forwarded emails to our client, and thereafter another attorney took over management of the case. The first attorney is being called as a witness, and he can’t assert attorney client privilege, because of the emails the client’s husband shared. Talk about a big oops!

It’s hard to list all of the potential risks involved with sharing too much information. Suffice it to say that you should be very, very careful, and NOT share communication that you’ve exchanged with your attorney. If you have questions or are wondering about the potential impact of a choice you’re considering making, you should talk to your attorney before you make any decisions you may regret later.

Attorney client privilege is one of the greatest tools in our arsenal, and we’re doing our best to protect you. It’s your attorney’s responsibility to zealously represent you and your interests – so you should take all steps possible to avoid unwittingly making that job any harder than it has to be.

But I NEED to talk about my case to someone!

I get it. I’m that way, too. I like to talk through my feelings; it makes me feel better. If you’re overwhelmed by your experiences and just need someone to talk to, consider setting up an appointment with a therapist. The therapist is also protected by privilege, and though they can be subpoenaed in court, most take their notes super cryptically and are incredibly careful not to share any confidences. There’s often very little to be gained, so, if you must talk, a therapist is a fairly safe bet.

Besides that, of course, there’s the fact that divorce is already incredibly difficult for even the most steady headed person to handle. It can be a good idea – regardless of all of this attorney client privilege stuff – to talk to someone to make sure that you’re prepared to deal with these changes in as productive a way as possible.

For more information, or to talk to one of our attorneys one on one about your case, give our office a call at 757-425-5200.