Don’t blow your privilege!

Silence is a true friend who never betrays.”


The attorney- client privilege is an important ally in your case. It allows you to communicate openly and honestly with your attorney without fear that your communications will be revealed to the other side.  It can be a fragile thing, however, and care must be taken to preserve the privilege.

Most importantly, the attorney-client privilege is afforded only to confidential communications between the attorney and the client. To be confidential, the communication must not be intended to be disclosed to a third person other than those to whom the disclosure is made in order to provide legal services to the client, such as the attorney’s associates and other staff. For example, an eavesdropper would not be able to testify about communication that is otherwise subject to the privilege, given that a third person’s eavesdropping is not a breach of confidentiality, because that disclosure was not intended.

Of particular concern in family law matters is the frequent desire of clients to have a friend or family member present during meetings with the attorney. I recently litigated a case in which the other side’s attorney had (at the client’s request) copied the client’s family members on all correspondence. Surprise!  All of those communications were now discoverable. I’ve also had the issue of waiver of the privilege arise where documents were kept by a party in a location to which the other side had ready and regular access and under conditions clearly not designed to maintain the confidentiality of the documents.

In other words, maintaining the privilege takes some effort and thought. If a communication between an attorney and a client is made in the presence of someone else, then it would not be considered to be confidential. Likewise, communications between an attorney and a client that are made in a public place would not normally be intended to be confidential, and therefore generally do not fall under the privilege. Similarly, the privilege can be waived where the contents of the communications are later disclosed to third parties.  For example, an attorney’s advice contained in an email to the client loses its privileged status if the email is copied or subsequently forwarded to a third party.

Accordingly, you should not allow others to see any mail that your attorney sends to you because it might no longer be considered a confidential communication between you and your attorney. You should take appropriate and reasonable steps to maintain the confidentiality of all documents related to your case by keeping the documents in a secure location. Similarly, no e-mails from your attorney should be forwarded by you to anyone else. Neither should you discuss with others the advice you receive from your attorney regarding your case.

The privilege belongs to you, the client, who may prevent an attorney’s disclosure of confidential information as a witness or of production of evidence in a legal proceeding regarding the client. That also means, however, that the responsibility to not to waive the privilege lies in your hands.

There are, of course, limits to the scope of the privilege and it is narrowly construed because it is in conflict with the general principle that the legal process should seek the truth and full disclosure of important facts. For example, the privilege only protects communications in which legal advice was sought or rendered. In other words you can’t protect facts from being discoverable simply by incorporating them into a communication with your attorney.

If you have any question as to the confidentiality of your communications with your attorney, you should have an open and frank discussion with him/her. But the take home message here is to avoid the temptation to share what you discuss with your attorney with your friends and family.  Unless you want those discussions to be discoverable by your ex.

Don’t blow your privilege!

Should I File First?

“The present time has one advantage over every other – it is our own.” – Charles Caleb Colton

When divorce is imminent, is there any advantage to being the first to file? The short answer is yes.

From a legal standpoint, there really should be no advantage as both the parties stand on the same legal footing.  But as a practical matter, the Petitioner (the filing party) will generally present his or her case first, thereby getting the opportunity to make the first impression on the court.  Additionally, once the Respondent has presented his or her case, the Petitioner will once again have the opportunity to present rebuttal testimony, thereby also gaining the advantage of having the last impression with the court.  We all inherently know the importance of first and last impressions; social scientists call these the primacy and recency effects.

But there are more significant advantages to being the filing party.  The party that files has the ability to select the timing of filing, giving them the ability to prepare both emotionally and financially.  The filing party may have more time to investigate and select a lawyer or to protect marital assets from dissipation. By filing, there is control over the possibility of foot-dragging and delay.

It is my firm belief, however, that the biggest advantage of filing first is the impact that being proactive has on the Petitioner’s mindset and attitude towards the divorce process.  By filing, you are taking action; by taking action, you are taking control. There is nothing worse than waiting for something awful to happen to you and no better cure for that “Sword of Damocles” feeling than to be the one to rip off the bandaid.

The sense that you are in control of your own destiny – rather than at the mercy of your now-adverse spouse – can be an enormous relief and advantage throughout the divorce process.

Should I File First?