Conversations Within Earshot of Third Parties Do Not Deserve Privilege Protection

August 29, 2001

The attorney-client privilege protects only those communications between a client and lawyer (and certain of their agents) undertaken in a private setting. Most decisions address this basic principle in the context of invited third parties, but an occasional case deals with an inattentive lawyer speaking with his or her clients in the presence of uninvited third parties.

For instance, in the recent case of People v. Compeau, 244 Mich. App. 595, 597 (Mich. Ct. App. 2001), the court found that a criminal defendant’s conversation with his lawyer was not protected by the attorney-client privilege because the two spoke where the court bailiff could overhear them. As the court explained it, “[s]ituated in this public location [the courtroom] during public proceedings, and under the scrutiny of the bailiff, defendant chose to communicate with counsel by speaking to the attorney in a manner that could be overheard by a third person rather than covering his mouth and quietly whispering or by communicating in writing.”

Although every lawyer should know not to communicate with his or her clients in the presence of third parties, having a reminder like this case should serve as a warning to all lawyers.