Is Three a Crowd? The Intersection between Attorney-Client and Spousal Privileges

The attorney-client privilege is among the oldest and most established evidentiary privileges in law. Although it is perhaps the most frequently cited privilege, it certainly is not the only grounds to object to the disclosure of a client’s communications.  Spouses also enjoy a special relationship that justifies withholding certain communications. Under the so-called “spousal communications privilege,” a/k/a “marital privilege,” confidential communications between spouses may be protected from disclosure in civil and criminal cases.  But what happens when the attorney-client and spousal privileges collide?

Both the attorney-client privilege and marital privilege depend on confidentiality from third-party disclosure.  So what happens when a communication is made by a client in the presence of the attorney and the spouse?   If a spousal communication is protected from disclosure, and an attorney-client communication is also protected, wouldn’t the client’s communication to an attorney in the presence of a spouse be equally protected?  Depending on your jurisdiction, maybe not. 

While there has been relatively little case-law on this issue, there have been several decisions in New York holding that the presence of the third party—the lawyer for the spousal privilege, and the spouse to the attorney-client privilege—serves to nullify the confidentially requirement of each.  Federal court cases in Pennsylvania and Colorado have come to a different result, holding that the privileges can coexist.  In the remainder of jurisdictions, this question remains murky.   

Prudent attorneys can protect their clients, and themselves from malpractice exposure, however, by taking proactive steps to guard against unwitting waiver.  For starters, an attorney must always stress the importance of confidentiality.  If a client does show up to a meeting with a spouse, the safest course of action may be to politely excuse him or her from any sensitive discussion, so that the privilege is conclusively preserved.