Written by Jessica Relyea, Esq.
Most people understand that any communication between an individual and their attorney is protected from disclosure in litigation under the attorney-client privilege. However, what if an attorney has a meeting with their client and the client’s spouse or boyfriend? What if the meeting includes the client’s friend who happens to be a witness to the accident? Can the other party in litigation discover the contents of that meeting and any documents reviewed during it? It depends.
In both civil and criminal matters, a person may refuse to disclose or prevent anyone else from disclosing any confidential communication between themselves and their spouse. Va. Code Ann. § 8.01-398. This is known as the marital communication privilege. This privilege survives the dissolution of marriage, which means one spouse could prevent an ex-husband or ex-wife from voluntarily disclosing confidential information. Id. It does not extend to proceedings where the spouses are adverse to each other, or if one spouse is charged with a crime or tort for an act against (1) the other spouse, (2) property of the other spouse, or (3) a minor child of either spouse. Id.
For the marital privilege to apply, it must involve a communication, which includes conduct, acts, signs, speech or writings, that conveys information to the other spouse. Virginia v. Shifflett, 52 Va. Cir. 326, 327 (2000). Furthermore, the communication must be private. Id.
The marital communication privilege extends the reach of attorney-client privilege. “As a general rule, confidential communications between an attorney and his or her client made in the course of that relationship and concerning the subject matter of the attorney’s representation are privileged from disclosure. The objective of the attorney-client privilege is to encourage clients to communicate with attorneys freely, without fearing disclosure of those communications made in the course of representation, thereby enabling attorneys to provide informed and thorough legal advice.” Bergano v. City of Va. Beach, 296 Va. 403, 408 (2018)(internal citations omitted).
However, communications made between an attorney and client in the presence of a third person are not privileged as the stranger’s presence indicates the communications were not intended to be confidential. Brownfield v. Hodous, 82 Va. Cir. 315, 316 (2011). This means that if an attorney has a meeting with a client and a witness or a friend of that client, then that meeting and any documents reviewed during that meeting may be discoverable to other parties in litigation.
The exception to this rule is that if a separate privilege protects the communication between the client and the third-party, then the entirety of the communication between the attorney, client and third-party is protected. Therefore, if an attorney, client and that client’s spouse are all party to the same communication, that communication can be protected by asserting both the attorney-client privilege and the marital communication privilege. That privilege would extend beyond the conclusion of both the attorney-client relationship and the marriage, if necessary. Id. at 317-318. As such, any conversation between an attorney, client and the client’s spouse will remain confidential.
If you are litigating a case and privilege is asserted between an attorney and client, it is always important to ask if anyone else was in that meeting or privy to that communication. If so, ask what that person’s relationship is the client. You never know when privilege has been breached because a boyfriend was listening in on a conference call or a friend sat in on the meeting.
The attorneys at KPM LAW would be happy to answer any questions you may have on this issue.