Not-So-Significant Others: When Does the Presence of a Third Party Waive the Attorney-Client Privilege?
Suppose you represent the defendant in a lawsuit, and he wants his long-time significant other to participate in communications with you about legal strategy—discussions that would be protected by the attorney-client privilege if they were between you and him alone. Would such participation vitiate the privilege?
RCW 5.60.060(2)(a) provides that “[a]n attorney or counselor shall not, without the consent of his or her client, be examined as to any communication made by the client to him or her, or his or her advice given thereon in the course of professional employment.” This privilege exists “in order to allow the client to communicate freely with an attorney without fear of compulsory discovery.”
To be protected by the privilege, “a communication must be made in confidence.” The attorney-client privilege therefore can be waived “when the communication is made in the presence of third persons on the theory that such circumstances are inconsistent with the notion the communication was ever intended to be confidential.”
But the presence of a third person does not automatically waive the privilege. For example, an attorney can communicate confidentially with his or her client in the presence of the client’s spouse or state-registered domestic partner. By statute, a spouse or domestic partner “shall not be examined for or against his or her spouse or domestic partner, without the consent of the spouse or domestic partner; nor can either during marriage or during the domestic partnership or afterward, be without the consent of the other, examined as to any communication made by one to the other during the marriage or the domestic partnership.”
Whether the privilege is waived when the third-party participant is not a spouse or domestic partner is less clear. The general rule is that waiver does not occur where “the third person is necessary for the communication, or has retained the attorney on a matter of ‘common interest.’” As the court explained in State v. Gibson, a case discussing the analogous doctor-patient privilege, “if the third person is present as a needed and customary participant in such consultation, the circle of confidence may be reasonably extended to include him and the privilege will be maintained.”
Consistent with this, Washington’s courts have held that legal secretaries, accountants, and interpreters are “indispensable to an attorney’s provision of legal services to the client” and are thus “necessary” recipients of confidential attorney-client communications. By contrast, the presence of a son during a family therapy session resulted in waiver of the doctor-patient privilege when the party claiming the privilege did not explain why the son’s presence had been necessary.
Whether a significant other, business associate, or other close confidant “needs” to receive confidential attorney-client communications must be determined on a case-by-case basis, and courts will likely view the question through a restrictive lens. Because the attorney-client privilege “sometimes results in the exclusion of evidence which is otherwise relevant and material, contrary to the philosophy that justice can be achieved only with the fullest disclosure of the facts,” it “cannot be treated as absolute; rather, it must be strictly limited to the purpose for which it exists.”
There will likely be circumstances where the privilege survives third-party receipt of confidential attorney-client communications. But especially given the dearth of case law on this subject and the courts’ strict construction of the privilege, expanding the circle of confidence carries risks that should be carefully considered beforehand. Otherwise, one may discover after the fact that communications made on the assumption that they would be privileged are in fact subject to full discovery by an adversary.