Presence of a Family Member Can Destroy the Privilege

February 15, 2006

The attorney-client privilege only protects communications between lawyers and their clients (and in certain very limited circumstances, their agents). Some lawyers forget that even having a client’s relative present during an otherwise protected communication can destroy the privilege.

In Black v. State, No. 5D05-59, 2006 Fla. App. LEXIS 48 (Fla. Dist. Ct. App. Jan. 6, 2006), a convicted robber appealed his conviction, arguing that the court improperly admitted the substance of a telephone call the robber had placed from jail to a former lawyer. Although the court noted that an automated voice advised the robber that the jail might record his telephone calls, the court also noted that the robber’s sister placed the call and stayed on the line. The court explained that the robber could have made the call himself, and could not justify his sister staying on the line. This destroyed the privilege.

The court’s reliance on the sister’s participation (rather than just on the automatic recording) highlights the risk of clients involving family members in their otherwise privileged communications.