How Not to Screw Up the Attorney-Client Privilege During Divorce

  •   |   Meghan Freed

Square photo with blue border that says how not to screw up in black writing and the freed marcroft logo in the lower right corner.The attorney-client privilege is one of the most critical tools in your relationship with your divorce lawyer — you don’t want to screw it up. Because of the attorney-client privilege, you can be completely candid with your attorney, which allows her to do her best job for you.  If you hold back information from your attorney, there’s a good chance the other side will reveal it.  Sharing information with your lawyer right from the start – even (or especially!) when you’re embarrassed by it – allows your lawyer to build a proactive strategy to address it rather than be forced to handle it on the fly.

Read: Should I Tell My Divorce Lawyer Everything?

What Is the Attorney-Client Privilege?

In the most basic terms, the attorney-client privilege means that communications between a lawyer and client to obtain or offer legal advice are kept private and not shared with the other side (or anyone).  In other words, the information you tell your legal team and your attorney’s advice and strategy are confidential.  Accordingly, your lawyer will not share privileged information with the other side or anyone else.

The attorney-client privilege extends to all members of your legal team, so, for example, you can speak freely with your paralegal.

Read: Attorney-Client Privilege and Divorce

Does the Attorney-Client Privilege Apply to Everything I Tell My Lawyer?

There are two categories of things that the attorney-client privilege doesn’t cover.

 Legitimate Evidence

First, it doesn’t cover legitimate evidence.  For example, the personal tax returns you share with your lawyer are subject to mandatory disclosure and production rules for Connecticut divorces aren’t subject to the attorney-client privilege.  However, her advice about when and how to disclose them is confidential.

Read: Discovery in Connecticut Divorces
Read: Evidence in Connecticut Divorces

Disclosures to Third Parties

Second, “[t]he privilege does not protect communications made in the presence of or made available to third parties.” Section 5-2 – Attorney-Client Privilege, Conn. R. Evid. 5-2

That means you must be very careful about what you share with anyone other than your legal team.  It doesn’t matter whether the other person is your mom, your best friend, or a total stranger – a third party is a third party when it comes to waiving the attorney-client privilege.  Your friends and family members don’t want to hurt your case, and also don’t want to wind up being deposed or on the witness stand at trial.

Read: Privacy During Divorce

How Do I Avoid Waiving the Attorney-Client Privilege in My Divorce?

Talk with your lawyer to ensure you stay on the right side of the attorney-client privilege.  Generally, be mindful that you:

  • Don’t invite third parties to meetings with your attorney.
  • Make sure you are in a private location where no one can overhear when you have a phone call or a virtual meeting (such as via Zoom) with your lawyer.
  • Don’t post about your case on social media (including in DMs).
  • Don’t forward emails between you and your legal team to anyone without discussing it with your lawyer first. Also, don’t put them on carbon copy (cc) or blind copy (bc).
  • Don’t share legal invoices – they tend to contain information protected by the attorney-client privilege. (Ask your lawyer how to handle it if a friend or family member is helping you pay for your representation.)

Read: Should I Bring a Friend or Relative to My Meeting with My Divorce Attorney?

Next Steps

If you would like to discuss this further, please contact us.

Freed Marcroft LLC

Freed Marcroft LLC