State Courts Address Outsiders’ Privilege Impact: Part II

January 9, 2019

Last week’s Privilege Point described a North Carolina state court’s predictable rejection of privilege protection for communications with a company’s technical consultant. Does the same harsh standard apply when clients bring family members with them to lawyer meetings?

In Fox v. Alfini, plaintiff Fox (“then in her early thirties”) fell ill at a chiropractor’s office. Case No. 18SA92, 2018 Colo. LEXIS 962, at *4 (Colo. Dec. 3, 2018). Her parents rushed their “gravely ill” daughter to an emergency room “for what turned out to be a stroke.” Id. Fox and her parents later met with a plaintiff’s lawyer to discuss filing a malpractice action against the chiropractor. The defendant chiropractor discovered that the lawyer had recorded this initial meeting, and argued that the parents’ presence aborted privilege protection. Not surprisingly, Fox claimed that her stroke caused “diminished mental capacity,” and that “her parents’ presence was necessary to facilitate her communications” with her lawyer. Id. at *5-6. The court disagreed, applying “an objective standard for determining whether a third party’s presence was necessary to facilitate an attorney-client communication.” Id. at *12. The Supreme Court agreed with the lower court that Fox “had not shown that her mental capacity was ‘diminished such that the presence of her parents was necessary to assist in the representation.'” Id. at *15-16.

This counter-intuitive result demonstrates the difficulty of claiming privilege protection with or in the presence of client agent/consultants — even family members. Next week’s Privilege Point discusses fatal flaws in Fox’s lawyer’s argument.