Suppose you represent the defendant in a case, and he needs his long-time significant other to engage in legal planning communications with you, discussions that would be covered if they were between you and him alone by the attorney-client privilege. Will the privilege vitiate such participation?
“RCW 5.60.060(2)(a) provides that “[a]n attorney or consultant shall not be investigated as to any correspondence made by the client to him or her or his or her advice provided thereon in the course of professional employment without the permission of his or her client.” This privilege exists “to enable the client to interact freely with an attorney without fear of obligatory disclosure.” This privilege exists “to allow the client to communicate freely with an attorney without fear of compulsory discovery.
“A communication must be made in confidence in order to be protected by the privilege.” Thus, the attorney-client privilege can be waived “when the communication is made in the presence of third parties on the theory that such circumstances are inconsistent with the notion that the communication was ever intended to be confidential.”
But a third person’s presence does not automatically waive the right. For instance, in the presence of the client’s spouse or state-registered domestic partner, an attorney may interact confidentially with his or her client. By law, ‘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 may the spouse or domestic partner be examined for or against his or her spouse or domestic partner without the consent of the spouse or domestic partner; nor may the spouse or domestic partner be examined for any contact made between him or her during the marriage or the domestic partnership.’
It is less evident if the right is waived when the third-party participant is not a spouse or domestic partner. The general rule is that waiver does not occur when “the third person is necessary for the communication or has retained the lawyer on a matter of ‘common interest.'” As the court clarified in State v. Gibson, a case dealing with the equivalent right of doctor-patient, “if the third person is present in such consultation as a necessary and customary participant, the circle of trust may be reasonably extended to include him and the privilege will be maintained.”
Consistent with this, the courts of Washington have held that legal secretaries, accountants, and interpreters are “indispensable for the provision of legal services to the client by an attorney” and are thus “necessary” recipients of confidential correspondence between attorney and client. The presence of a son during a family counseling session, on the other hand, resulted in the waiver of the doctor-patient privilege because the group seeking the privilege did not justify why the presence of the son was appropriate.
If a significant other, business partner, or other close confidant “needs” to be decided on a case-by-case basis to access sensitive attorney-client correspondence, and courts would undoubtedly view the issue through a restrictive lens. Because the right of the attorney-client “sometimes results in the exclusion of evidence that is otherwise relevant and material, contrary to the philosophy that justice can only be achieved with the fullest disclosure of the facts,” it “can not be treated as absolute; rather, it must be strictly limited to the objective for which it exists.”
There would undoubtedly be cases where third-party reception of sensitive attorney-client correspondence survives the privilege. But in particular, given the lack of case law on this subject and the strict construction of privilege by the courts, widening the scope of trust carries risks that should be considered carefully beforehand. Otherwise, after the fact that communications made under the presumption that they will be privileged are actually subject to total discovery by an opponent, one can discover.