Avoiding Privilege Pitfalls in New York Divorces

Many clients have a cursory understanding of attorney-client privilege, usually along the lines of “anything I say to my lawyer is confidential.” While that belief is, for the most part, true, the attorney-client privilege is not absolute. As client confidence in the privilege is critical, a key aspect of the attorney’s duty to protect privilege should be educating and managing the client with regard to the scope and limits of privilege.

Though the issue applies to all types of cases, divorce matters are particularly fraught with potential “privilege pitfalls.” Emotions are running high, elements of the litigants’ personal lives are brought to the forefront of the case, and friends and family often become enmeshed in the case as confidants, shoulders to cry on, and, possibly, as witnesses. As a result,

opportunities abound for third parties to learn of privileged communications from a client who unwittingly discloses confidences, unaware of the potential consequences in doing so.

Privilege pitfalls for the unwary client in their personal lives

 One of the most common and straightforward examples of a privilege pitfall involves a client bringing a parent, sister, friend, or other third party along to an initial consultation or other meeting with an attorney for moral support or including that third party on email communications with counsel. It is imperative for an attorney to explain that having someone else in the room or copied on communications breaches the attorney-client privilege for that communication. It doesn’t matter how much the client trusts the friend or family member in the room, that individual’s presence vitiates the privilege and the court can compel disclosure of what have now become non-privileged communications.

Another example involves witness preparation. In preparing a non-party witness for trial, if a client is present during that session, he/she needs to be mindful that those communications during the “prep session” aren’t privileged, and case strategy should not be discussed. While best practices generally militate in favor of the attorney speaking to the witness alone, if the attorney opts to have the client present for the interview, it’s essential to communicate the importance of the client refraining from sharing privileged or confidential information or discussing strategy during that session.

Speaking with friends and family outside the presence of the attorney (e.g., after a meeting with counsel or an expert), is another area often overlooked by clients. Sharing the details of a meeting or a proposed strategy with a friend may place the privilege at risk. In these circumstances, the communication may have been privileged when it occurred, but it will be inadvertently waived by the client’s disclosure. The best-case scenario is for a divorce client not to discuss strategy or details of attorney meetings with others.

But the measures one should take to protect and preserve the attorney-client privilege go beyond the actual communication itself and extend to the manner in which it takes place. Many companies have internal policies that provide that employees have no expectation of privacy with respect to their email accounts. As a result, an employee communicating with retained counsel by way of that individual’s company email account may place the communication itself in jeopardy. A good practice is for the client to secure a new personal email account, separate and apart from employment, and only utilize that account to communicate with counsel.

Privilege pitfalls for the unwary client beyond communicating with friends or family

Though the most significant privilege pitfalls for divorce clients seem to be when communicating with friends and family, professional communications can also put sensitive information at risk. Many people have a general sense that “therapy” communications are protected, but don’t understand the parameters of that privilege.

While communications with licensed medical professionals, psychologists, social workers, rape crisis counselors, and domestic violence advocates are likely to be privileged (this article does not address the possible scenarios under which a client’s mental health provider may be called to provide testimony in a custody matter, either to a court-appointed forensic psychiatrist/psychologist or at a trial), there are many similar service providers with whom communications are not confidential for evidentiary purposes. These are typically unregulated service providers, such as life, divorce, or relationship coaches.

It’s especially important to counsel clients to ascertain from these providers the specific ethical codes that apply to their area of practice and the specific privilege that attaches, if any, as a result of their relationship with the client. It’s also important to explore whether those communications enjoy an evidentiary privilege and/or whether a provider’s ethical code overrides their obligation to respond to a lawful subpoena.

Another possible pitfall for clients in this arena is failing to understand the legal difference between a licensed professional they consult for therapy or other services and one who has been hired or appointed to provide an assessment to the court. From the client’s perspective, the interactions are often similar, and the general rule that “licensed social worker communications are privileged” may well be what sticks in their minds. But whenever a psychologist or other licensed professional is used in a non-privileged capacity, the client must be prepared for that encounter with a clear understanding of the purpose of the sessions and how the information gathered will be used.

Avoid privilege pitfalls to preserve attorney-client privilege (and the attorney-client relationship)

Finally, it is important for matrimonial attorneys to discuss with their clients what is required to extend the privilege to experts, such as accountants, appraisers, valuation experts, and others. The extension of attorney-client privilege to outside agents is an area that can be especially confusing to the client if not thoroughly explained and not managed correctly by the attorney. By way of example, communications with an accountant properly retained by the attorney would preserve the privilege, but conferring with the client’s personal accountant would not.

The best way to protect privilege in working with an expert is for the attorney to retain the expert, and for the attorney to enter into a Kovel agreement with the expert, clarifying that the expert is working for and at the direction of the attorney, detailing the scope of services, and deeming the expert’s work papers property of the attorney. Kovel agreements are based on the Second Circuit’s decision in U.S. v. Kovel, 296 F.2d 918 (2d Cir. 1961).

Unintentionally waiving privilege or engaging in communications that fall outside privilege from the start can put both the client’s interests and the attorney-client relationship at risk. Thoroughly educating clients about the limits of privilege and reminding them of the issues specific to encounters that arise, such as their interactions with a potential witness or a session with a court-appointed counselor, can help avoid issues that may compromise attorney-client privilege, the client’s divorce case, and the attorney’s representation.

Jillian E. Gross is a founding partner of Mosberg Sharma Stambleck Gross LLP, a leading Manhattan matrimonial law firm specializing in representing high-net-worth individuals and other professionals in their divorces. She can be reached at gross@mssglaw.com.

Reprinted with permission from the August 3, 2023, edition of the New York Law Journal © 2023 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-257-3382 or reprints@alm.com.