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What is attorney-client privilege and what does it mean for me?

by | Jan 29, 2024 | Divorce, Privacy |

One of the most important things you can do in a divorce is to make sure you’re telling your lawyer everything that might be pertinent to your case. Being truthful and thorough in conveying information about your marriage, your spouse, and your own actions and behaviors reduces the chances that your lawyer will be surprised by something that comes up in trial. Part of what protects you when telling your lawyer everything is attorney-client privilege.

As a State Bar of Texas publication states, “The purpose of the attorney-client privilege is to encourage free discussion between a lawyer and client. If lawyers and clients cannot talk to each other, the lawyer will not be fully informed and the client cannot get the full benefit of the legal system.”

It is important to note that in order to be fully protected, the communication must exist exclusively between the client and the attorney. As the publication says, “A communication must be confidential, meaning it is not intended to be disclosed to others beyond the lawyer and client. If someone other than the lawyer and the client are present when the communication is  made—even to family members, friends, etc.—the client risks waiving the privilege.”

There are two important things to remember regarding attorney-client privilege, covered in the publication, when it pertains to family law. The first is a topic that’s familiar to us, which you might have recently read about on our website. When you have what you believe to be an uncontested or even an amicable divorce, you still want to get a lawyer to help you prep and to make sure all the Is are dotted and Ts are crossed. It’s really better for each party to have its own attorney.

“Suppose a husband and wife approach an attorney seeking an uncontested divorce,” the State Bar posits. “Attorneys cannot represent both parties in litigation, including divorce, and attorneys should remind parties that they only represent one spouse or the other. As a consequence, a husband’s conversation with his wife’s counsel will not be privileged, even if the divorce is agreeable and the husband originally intended the conversation to be confidential.”

That underscores advice that we’ve given: Even if you are getting what you believe will be an uncontested divorce, make sure each party has his/her own lawyer to review the decree. At a minimum, you’re making sure the two of you get to review the document that will shape your post-divorce life with a lawyer, allowing each of you to ask any questions you might have in confidence.

Should the divorce end up being contested in some way after all, you’ll then each be in place with a lawyer, and can get right to trying to resolve the issue without pausing to find a lawyer.

The other concern in family law is lawyers for children, and those same concerns can also extend to mental health professionals for children. As the State Bar explains more broadly, “Suppose parents are paying the legal fees for their child who was involved in a traffic accident. Parents often assume that because they are paying legal fees, they can sit in on conversations between a child and his or her attorney. But the attorney represents the child—not the parents—and the parents’ presence at those conversations could prevent the attorney-client privilege from applying.”

You might mean well or even be aligned with your child in a case. But there might be situations, in the best interest of the case and of your child, for the lawyer to consult with your child without you or the other parent present.

If you’re at all curious about how this all might work, talk to your lawyer about how best to communicate, as well as how you can and should work together to make sure you’re communicating efficiently as well as confidentiality.

At the Law Office of Lisa A. Vance, we’ll work with you to make sure your rights and protections are being preserved, while we get the information to make sure we can best defend your interests and won’t be surprised by anything.