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 discussions about legal strategy that would be protected by the attorney-client privilege if they were strictly between you and your client. Could the significant other join in these conversations without impairing 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.” The privilege exists “in order to allow the client to communicate freely with an attorney without fear of compulsory discovery.”[1]
To be protected by the attorney-client privilege, “a communication must be made in confidence.”[2] Thus, the privilege 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.”[3]
But the presence of a third-party doesn’t automatically waive the privilege. For example, an attorney can speak confidentially with 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.”[4]
Whether the privilege is waived when the third-party participant is someone other than a spouse or domestic partner is less clear. The general rule is that waiver doesn’t occur where “the third person is necessary for the communication, or has retained the attorney on a matter of common interest.”[5] As the court explained in State of Washington 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.’”[6]
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 therefore “necessary” recipients of confidential attorney-client communications.[7] 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 didn’t explain why the son’s presence had been required.[8]
Privilege issues are determined on a case-by-case basis, and the party seeking to invoke the privilege has the burden of showing that it applies.[9] Courts are likely to view through a restrictive lens questions arising from third-party participation in confidential attorney-client discussions. This is because the attorney-client privilege “‘sometimes results in the exclusion of evidence which is otherwise relevant and material’” and thus it “‘cannot be treated as absolute; rather, it must be strictly limited to the purpose for which it exists.’”[10]
There will likely be circumstances where the attorney-client privilege survives the sharing of legal strategy or other confidential attorney-client information with third-parties. But especially given the dearth of case law on this subject and the central role that confidentiality plays in effectuating the purpose of the privilege, expanding consultations with an attorney to include third-parties carries risks that should be carefully considered beforehand. Otherwise, one might find after the fact that communications made on the assumption that they would be privileged are subject to discovery by an adversary.
Editors Note: This post was originally published on December 20, 2016 and was updated on March 1st, 2023.
[1] Dietz v. Doe, 131 Wn.2d 835, 842 (1997).
[2] Morgan v. City of Federal Way, 166 Wn.2d 747, 757 (2009).
[5] Morgan, 166 Wn.2d at 757 (citations and internal quotation marks omitted). See also RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS § 75(1) (2000) (“If two or more persons are jointly represented by the same lawyer in a matter, a communication of either co-client that otherwise qualifies as privileged under §§ 68-72 and relates to matters of common interest is privileged as against third persons, and any co-client may invoke the privilege, unless it has been waived by the client who made the communication.”).
[6] 3 Wn. App. 596, 599 (quoting CHARLES T. MCCORMICK, HANDBOOK OF THE LAW OF EVIDENCE § 104 (1954); internal quotation marks omitted).
[7] State of Wash. v. Aquino-Cervantes, 88 Wn. App. 699, 707 (1997).
[8] See State of Wash. v. Anderson, 44 Wn. App. 644, 650–51 (1986).
[9] See VersusLaw, Inc. v. Stoel Rives, L.L.P., 127 Wn. App. 309, 332 (2005).
[10] Newman v. Highland Sch. Dist. No. 203, 186 Wn.2d 769, 778 (2016) (quoting Pappas v. Holloway, 114 Wn.2d 198, 204–04 (1990)).
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