Effect of a Spouse’s Presence During an Attorney-Client Communication

May 22, 2002

The presence of a client’s agent during a communication between the client and the lawyer generally eliminates the required “confidentiality” that underlies the attorney-client privilege, and therefore means that the privilege will not protect the communication (unless the client’s presence was necessary for the transmission of the information). This issue becomes more complicated when the client’s agent who attends the communication is the client’s spouse.

A recent Colorado state court case discussed the judicial debate about a spouse’s presence during an attorney-client communication. In In re: Wesp, 33 P. 3d.191 (Colo. 2001), the Court noted that the interplay between the attorney-client privilege and the spousal privilege caused some courts to find that a spouse’s presence prevented the privilege from arising, while other courts took the opposite approach. The Colorado Court concluded that a wife’s presence during communications between a husband and his lawyer precluded the privilege from protecting the communication.

Lawyers who meet their clients in the presence of the client’s spouse should consider the risk of such a joint meeting.