Can your Friend or Family Member have Access to your Attorney-Client Materials? A Game Changer
By Carolyn J. Woodruff, JD, CPA, CVA
I’d like to bring a family member or friend to my meeting with my attorneys – can I do this? It is common for a North Carolina divorce client to want to bring a close friend or a close family member to a meeting with an attorney. Let’s face it, divorce (even the most amicable) are emotionally charged and devastating. Let’s also face it—a meeting with a professional like a doctor or lawyer can be daunting, and it is hard to remember everything that is said. Having a friend handy can help calm the client down and provide a second set of ears regarding the advice or the instructions.
Attorney-Client privilege in North Carolina is something the client shouldn’t generally waive. Attorney-client privilege means you do not have to discuss what you talked with your attorney about. The attorney-client privilege is truly the strongest privilege in the United States, and is much stronger that the physician-patient privilege and HIPPA or the psychologist/therapist privilege, which all have many more exceptions.
So you arrive in my office with your friend and/or family member for the meeting with me. What does that do to attorney-client privilege? Does it destroy it? Common wisdom has been, yes—having that third party “comfort” in the meeting does destroy the privilege. That being said, it is rare that the opposing counsel seeks to find out what happened in an attorney-client meeting from a third party friend or family member. On a rare occasion, I have seen this happen, however, in high dollar, highly contested cases.
So, what do I recommend?
Luckily, we have a new North Carolina case from our esteemed Court of Appeals in Raleigh that provides a lot of helpful guidance. The case is Berens v. Berens.
Facts of Berens: The wife, Melissa Berens, had a girlfriend named Brooke Adams. Brooke accompanied Melissa to meetings with Melissa’s attorney. Brooke was an inactive lawyer, but I don’t really see that fact as anything but an extra distraction in the understanding of the Berens case. Melissa and Brooke signed a Confidentiality Agreement to allow Brooke to hear and have access to attorney-client communications. The Confidentiality Agreement alleged that Melissa was NOT waiving attorney-client privilege.
Mr. Berens, the husband through counsel, saw a way to take advantage of the fact that Brooke had access to attorney-client information. Mr. Berens’ counsel issued a subpoena requiring all documents related to Brooke’s communications to Melissa and to her attorneys. Ah ha!!! The trial judge in Charlotte that that attorney-client privilege DID NOT apply to the communications in Brooke’s possession. The Charlotte judge indicated that there was not “good friend” way around a waiver of attorney-client privilege.
Melissa appealed to the North Carolina Court of Appeals. The Court of Appeals held that Brooke was, in fact, Melissa’s agent and that as an agent, she could have Melissa’s attorney-client information without breaching the attorney-client privilege.
The explicit language of Melissa’s Agency Agreement with Brooke was critical. The case is a practice changer for all So, in that first meeting, if you are going to have a friend or a family member with access to your attorney-client information, then you need to ask your attorney for an Agency Agreement. I recommend limiting the agency agreement to not more than two close friends or family.