Confidentiality in Virginia Divorce

Posted on Apr 1, 2016 by Katie Carter

Divorce is a sensitive subject. There’s no doubt about it; sometimes, in the midst of an ongoing divorce case, we have to talk about things that are embarrassing, uncomfortable, or that you would just generally prefer not be public knowledge.
Divorce is also complicated. There are a lot of laws involved and, because so many of your assets and liabilities are being divided, most people have a lot of questions. And, like at the doctor’s office, after they leave the office they often don’t remember the answers we gave them.
A lot of people ask, “Is it okay if I bring someone with me to my initial appointment?” The reason why is understandable. There are a lot of questions and there is also a lot of information to take in. There is a lot to remember and, over the coming days, weeks, and months, there will be a lot of decisions to make. Besides all that, it’s also reassuring to know that there’s someone else on your team, in your corner, as it were, who cares about you, and who is going into the appointment listening to things that will tip the scales in your favor.
There’s a lot of fear for most women who come in for initial consultations. It’s a big step. Lots of women have said things to me before about it being like opening up Pandora’s Box, or being a step that, once taken, they felt they couldn’t take back. I don’t think that’s really at all true (though it is safe to say that you’ll walk away with more information than you had before, and that’s something no one can take away from you), but I can understand the sentiment. And I can understand why, if you feel that way, walking through our door is already taking a humongous step towards something you’re not even sure you want in the first place.
There are a lot of competing emotions, and you want to experience that with a close friend or family member.

So, can I bring someone to my appointment with me?

Sure. You should do whatever makes you most comfortable. There’s a lot of information to consider, and you want to be sure you’re making the most of your appointment time. After All, your money isn’t very well spent if afterwards you’re left asking yourself, “what was it she told me about that?”
Having someone there can help you make sure that you’re getting all the information and that you heard it all right. The right person can even ask the questions you wish you would have thought of–but didn’t. A good person can also provide emotional support and guidance, and be a sounding board for you as you discuss your options after your appointment.
It’s hard to make decisions (especially big ones, like whether to get a divorce, pursue a custody case, or hire a lawyer) when you’re stressed, anxious, angry, sad, or overwhelmed. There’s a lot at stake, and I don’t doubt that you’d feel more comfortable if you had someone there to help make the conversation move a little more easily.
Still…. There are risks associated with bringing another person in on your consultation.
3 Issues that come up when you bring another person in on your consultation.

1. You break confidentiality. Permanently.

Probably the biggest issue associated with bringing another person in on your divorce consultation is that it affects confidentiality.
Technically, bringing someone into your appointment—any appointment, no necessarily just the first appointment—with you waives confidentiality regarding anything that was said in that appointment. You probably expect that, to a degree. Right? Though you understand that matters you discuss with your attorney are protected (and therefore confidential) because of the attorney client privilege, you understand that, by having a third party in the room, it’s not exactly confidential anymore.
Attorney client privilege only applies when only the attorney and the client are talking. The third person isn’t bound to confidentiality by any sort of legal or ethical restrictions (though, of course, they may very well be morally bound, depending on your set of moral principles, that’s just not something we can legally enforce), and their presence breaks the attorney client privilege. Nothing that happens in that appointment is confidential any longer.
That makes sense, right? You sort of expected that. But you probably don’t realize the extent to which attorney client privilege is affected. Technically, when a third person is present, there is no confidentiality at all. Of course, you can still trust your attorney to protect your confidentiality—at least, to the best of his or her ability—but that privilege, once waived, can’t be reinstated. Technically, if the other party (or his attorney) asks about something protected by privilege in court, it is admissible and no longer protected by confidentiality.
Though I’ve never heard of anything like this happening, it’s something that you should be aware of. If you follow the actual letter of the law with respect to confidentiality, someone else’s presence in the room with you and your attorney means that you’ve waived it. Your attorney won’t give up any sensitive information (unless, of course, for some reason the judge orders that she has to, which, like I said, is probably incredibly unlikely), and it’s also fairly unlikely that anyone would even necessarily know whether you had a support person in the attorney’s office with you—but you should know that (again, if we’re talking technically), you have waived confidentiality.

2. You need to be sure that you’re comfortable discussing sensitive matters around the person you bring.

To some degree, all legal matters are private, and touch on things that you might not share with any but those closest to you. Whether we’re talking about tax law, criminal law, bankruptcy, or even wills and estates, there are lots of matters that are discussed within the confines of an attorney’s office that you don’t generally go around discussing with complete strangers. Chalk it up to good matters or whatever, but most of us don’t go around talking about tons of personal details in our lives.
You know full well that family law cases touch on some of the most intimate and personal details in our lives. In divorce consultations, we regularly talk about things that some people might find embarrassing or uncomfortable to discuss in front of an audience.
Let me put it quite plainly: if you don’t want to discuss your credit card debt or intimate financial details in front of your friend, or find it uncomfortable to talk about the STD your cheating husband transmitted to you in front of your dad, you might want to reconsider whether this person is an appropriate one to bring with you into the office.
I feel like I shouldn’t need to say it, but you need to be absolutely truthful with your attorney. Don’t bring anyone with you that will make you feel like you need to lie or cover up the truth. It’s not going to help your case, your attorney’s analysis of the case, or your end results. The attorney needs to know, especially at the beginning, exactly what the issues are—so that the case can be planned accordingly.
Bring someone, by all means. But be sure you bring someone around whom you can speak freely and truthfully—because otherwise, it’s not really helping you to have them there, and, in fact, it could be really hurting you.
Daddy may really want to be there for you, but if you can’t talk about what’s happening in your life around him, you may want to reconsider. Or let him wait in the waiting room for you.

3. You need to be sure that the person you’re bringing understands that, though he or she is there to help, you are the one in the driver’s seat.

I see this come up a lot, particularly with women who have been in abusive relationships. It seems like they go from one abusive, controlling person to the next. When they come in to their appointment to tell me about their husband, they also bring their girlfriend. She sits there, berating the woman, telling her how she should have left her husband AGES ago and how she never would have put up with all that crap. She’ll lecture, she’ll talk down, she’ll go on and on and on about all the things her “friend” did wrong and what she should do now that she’s there to help step in and get her life back on track.
Please, don’t bring this friend. Divorce is hard enough without being abused by your “support” person, too. Bring someone who is open minded, who has your best interests at heart, and will listen to you objectively and help you make the best decisions possible. I realize that this is a sort of tall order.

Probably for ages you’ve been covering up all the bad things your husband has done (because no one wants their friends to hate their husband), and now that you’ve let them in on all the bad, they want to jump right in and protect you.
I get it. I’ve been the protective friend, too. I’ve been the friend who needs protecting. And I’ve been the attorney on the other side of the desk, hoping that the woman who needs my help is going to be able to get it, despite her well meaning friend.
You’re the client. You’re the decision maker. You’re the one who is going to have to live with your decisions, and, to some extent, you’re going to have to listen to your gut and make the best decision possible. Maybe your friend won’t like it. Maybe your friend would do the opposite. But your friend, at the end of the day, if he or she is a good support person, will help you and support you through it, whatever it is, without judgment and without making you feel worse about it.
Bring someone who can listen and help, but not someone who will tell you what to do and boss you around. You’re in a vulnerable place, but you’re the only person who is going to have to live with the consequences. If you bring someone, make sure he or she is a person who can handle it, and who will help you—not hurt you.
Many of our clients bring a support person into their appointments with them. We’ve seen moms and dads, aunts and uncles, grandmas and granddads, friends, neighbors, co-workers, sisters, cousins, brothers, and more—and we’ve seen them provide an invaluable service to our clients. We’ve also seen the worst case scenario. We’ve seen the women who walk out of our offices and end up getting yelled at by their “friends” in the courtyard outside our office. We found out details, weeks later, that would have been critical to uncover in the initial appointment—but that the client was just too embarrassed to share.
Bring a friend if it’ll help. But look objectively at your situation, the person you hope to bring, and yourself before you decide whether it’s worth the trouble.
For more information or to schedule an appointment with our attorneys, give our office a call at (757) 425-5200.