CLIENTS, COUNSEL, AND SPOUSES
CLIENTS, COUNSEL, AND SPOUSES: CASE STUDIES AT THE UNCERTAIN JUNCTION OF THE ATTORNEY-CLIENT AND MARITAL PRIVILEGES
Jared S. Sunshine*
© Jared S. Sunshine, 2018
Most attorneys have encountered this situation: at a meeting with a client, the client shows up with his or her spouse. The spouse is not a client. Normally, what you tell your clients is privileged against disclosure. And what your clients tell their legally-recognized spouses is generally privileged too. But what happens when the two privileges bump into each other?1
INTRODUCTION
Justice Samuel Alito recently wrote: Our legal system has many rules that restrict the admission of evidence of statements made under circumstances in which confidentiality is thought to be essential. Statements made to an attorney in obtaining legal advice, statements to a treating physician, and statements made to a spouse or member of the clergy are familiar examples. Even if a criminal defendant whose constitutional rights are at stake has a critical need to obtain and introduce evidence of such statements, long- established rules stand in the way. The goal of avoiding interference with confidential communications of great value has long been thought to justify the loss of important evidence and the effect on our justice system that this loss entails.2
* J.D., cum laude, Fordham University School of Law, 2008; B.A., Columbia College of Columbia University in the City of New York, 2004. Grateful acknowledgements are made to the editors and staff of the Albany Law Review who labored so diligently on preparing this work for publication. The views expressed in this Article are the author’s alone, and do not represent those of the abovesaid persons or any other. 1 Jason Miller, Advising Clients and Their Spouses: An Issue of Privilege, LAWYERIST.COM (May 13, 2013), https://lawyerist.com/advising-clients-and-their-spouses-an-issue-of-privilege/. 2 Pena-Rodriguez v. Colorado, 137 S. Ct. 855, 874 (2017) (Alito, J., dissenting) (citations omitted). N.b., although the petitioner’s surname was Peña-Rodriguez, the case caption
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The four examples cited—the attorney-client, physician-patient, marital,3 and priest-penitent privileges—are not merely familiar; they have been the principal communicational privileges recognized at law for centuries.4 Of these, the attorney-client privilege is “the most ancient and revered[,]”5 but the evidentiary protections arising from marriage must be considered a close second in both regards.6 As Justice Alito observed, the unifying factor is that all four relationships are ones for which society is prepared to protect confidences, not every exchange with a lawyer, doctor, spouse, or cleric.7 The law thus asks that each communication in fact be strictly confidential in order to merit protection.8 But flesh-and-blood humans generally do not consult with their confidantes in such a neatly compartmentalized fashion.9 Facing problems of a legal nature, many will confide in both spouses and lawyers, seeking different sorts of solace and advice from each.10 And clients unquestionably have a right to converse privily with their counsel
replaced the eña with an en. 3 This privilege has been variously called the husband-wife privilege, marital privilege, or spousal privilege. Compare Wyatt v. United States, 362 U.S. 525, 534 (1960) (Warren, C.J., dissenting) (“[T]he husband-wife privilege.”), with Hawkins v. United States, 358 U.S. 74, 81 n.2 (1958) (Stewart, J., concurring) (citation omitted) (“[T]he marital privilege covering confidential communications between husband and wife.”), and Jaffee v. Redmond, 518 U.S. 1, 11 (1996) (“[T]he spousal privilege . . . is justified.”). For the sake of consistency and in recognition that not all modern marriages involve a husband and wife, this Article adopts the terminology “marital privilege” throughout. This paper will discuss the distinction between this marital communicational privilege and the separate marital testimonial privilege, which have at times been conflated to a degree but are doctrinally distinct. See infra section I. 4 See Trammel v. United States, 445 U.S. 40, 51 (1980) (citations omitted); see also David W. Louisell, Confidentiality, Conformity and Confusion: Privileges in Federal Court Today, 31 TUL. L. REV. 101, 107–08 (1956) (“[T]he principal confidential communication privileges [are] husband-wife, client-attorney, penitent-clergyman, and perhaps to a lesser extent, patient- physician.”). 5 Jared S. Sunshine, Seeking Common Sense for the Common Law of Common Interest in the D.C. Circuit, 65 CATH. U. L. REV. 833, 833 & n.2 (2016); see also Swidler & Berlin v. United States, 524 U.S. 399, 403 (1998) (citations omitted) (contending that attorney-client privilege is the most widely known privilege); Teri J. Dobbins, Great (and Reasonable) Expectations: Fourth Amendment Protection for Attorney-Client Communications, 32 SEATTLE U. L. REV. 35, 35 (2008) (“The privilege is the oldest common law confidential communication privilege.”). 6 See Trammel, 445 U.S. at 43–44; Stein v. Bowman, 38 U.S. 209, 222–23 (1839). 7 See Pena-Rodriguez, 137 S. Ct. at 874; Louisell, supra note 4, at 111–12 (“[C]ommunications must originate in a confidence that they will not be disclosed.”). 8 See Louisell, supra note 4, at 111, 112. 9 See 1 EDNA SELAN EPSTEIN, THE ATTORNEY-CLIENT PRIVILEGE AND THE WORK PRODUCT DOCTRINE 266 (5th ed. 2007); 1 EDWARD J. IMWINKELRIED, THE NEW WIGMORE: EVIDENTIARY PRIVILEGES § 6.8.1 n.84 (3d ed. 2016) [hereinafter NEW WIGMORE]. 10 See, e.g., United States v. Rakes, 136 F.3d 1, 2–3 (1st Cir. 1998) (noting communications sought to be suppressed between a married couple that jointly owned a company and their attorney). CLIENTS, COUNSEL, AND SPOUSES
2017/2018] Clients, Counsel, and Spouses 491 and spouses—separately.11 The predicament arises when these privileges intersect: when exchanges between clients, counsel, and spouse are commingled or communications with one are repeated to the other.12 To the layperson, it may be counterintuitive that conversations with counsel or spouse are protected but that the involvement of both might somehow compromise that protection.13 Even for attorneys, dissecting the meaning of the precedent at this uncertain junction of multiple doctrines is hardly straightforward.14 Aside from a discursive annotation from the American Law Reports series,15 focused scholarship on these thorny intersections appears limited to a few brief online notes and blog postings.16 The subject often receives no more than a passing mention in the treatises.17 Although these sources offer a valuable starting point for investigation, such a complicated and potentially hazardous junction deserves a more searching inquiry to discern whether any predictable results can be extracted from the cases. To be sure, resolution of the quandaries attendant to conversations involving clients, counsel, and spouses is unlikely to shift any great axes of jurisprudence. But as cases and commentators illustrate vividly, a mistaken reliance on privilege in such a posture can be devastating, exposing a criminal
11 See Upjohn Co. v. United States, 449 U.S. 383, 389 (1981) (citing 8 JOHN HENRY WIGMORE, EVIDENCE IN TRIALS AT COMMON LAW § 2290 (John T. McNaughton rev. vol. 1961)) (discussing the attorney-client privilege); Blau v. United States, 340 U.S. 332, 333–34 (1951) (citing Wolfle v. United States, 291 U.S. 7, 14 (1934)); 8 JOHN HENRY WIGMORE, EVIDENCE IN TRIALS AT COMMON LAW § 2636 (3d ed. 1940)) (discussing the marital privilege). 12 See Stephen P. Hurley & Marcus J. Berghahn, Straw, Sticks or Bricks: How Strong is the Attorney-Client Privilege? A Cautionary Tale for Defense Counsel, HURLEY, BURISH, & STANTON, S.C. (July 6, 2015), https://hbslawfirm.com/straw-sticks-or-bricks-how-strong-is-the- attorney-client-privilege-a-cautionary-tale-for-defense-counsel/; Seth L. Laver & Michael P. Luongo, Is Three a Crowd? The Intersection Between Attorney-Client and Spousal Privileges, PROF. LIABILITY MATTERS (June 27, 2013), http://professionalliabilitymatters.com/2013/06/ 27/is-three-a-crowd-the-intersection-between-attorney-client-and-spousal-privileges/; Miller, supra note 1. 13 See, e.g., Laver & Luongo, supra note 12 (“If a spousal communication is protected from disclosure, and an attorney-client communication is also protected, wouldn’t the client’s communication to an attorney in the presence of a spouse be equally protected?”). 14 See Miller, supra note 1. 15 See Jay M. Zitter, Annotation, Applicability of Attorney-Client Privilege to Communications Made in Presence of or Solely to or by Family Members or Companion, Confidant, or Friend of Attorneys or Client or Attesting Witnesses for Client’s Will, 67 A.L.R.6th 341 § 2 (2011). 16 See Hurley & Berghahn, supra note 12; Laver & Luongo, supra note 12; Miller, supra note 1. 17 See 1 KENNETH S. BROUN ET AL., MCCORMICK ON EVIDENCE § 90, 555 n.15 (7th ed. 2013) [hereinafter MCCORMICK]; THOMAS E. SPAHN, A PRACTITIONER’S GUIDE TO THE ATTORNEY- CLIENT PRIVILEGE AND THE WORK PRODUCT DOCTRINE 127 & n.5 (2001); 9 JACK B. WEINSTEIN, HAROLD L. KORN & ARTHUR R. MILLER, NEW YORK CIVIL PRACTICE: CPLR ¶ 4503.16 (David L. Ferstendig ed., 2d ed. 2017) [hereinafter WEINSTEIN-KORN-MILLER]. CLIENTS, COUNSEL, AND SPOUSES
492 Albany Law Review [Vol. 81.2 defendant to defeat and incarceration,18 and the lawyer to malpractice claims.19 Given the persistent uncertainty in this area, counsel must prepare proactively to advise his clients accurately on the risks involved, and to position any multi-party conversations so as to maximize the arguments for preserving privilege.20 The individual characteristics of the attorney-client and marital privileges animate any discussion of their intersection, and thus the Article glances first over the contours of these doctrines in Part I.21 Critical to discerning order in the precedent is distinguishing three discrete postures where the privileges intersect. In Part II, the Article examines cases where all three parties are simultaneously present, raising the question of whether any privilege can arise in the first place given there is nominally a third party present vis-à-vis each of the privileges. Part III turns to retransmitted communications, as when an attorney’s advice is later divulged by husband to wife. In such postures, the question is not whether the advice was privileged ab initio, but whether the divulgence waives or forfeits an existing privilege despite being itself a protected communication. And in Part IV, the Article takes up an idiosyncratic occurrence: what result when a client’s spouse is also the lawyer? Although it might seem such situations can only multiply the arguments for privilege, there is more nuance in the outcomes. Finally, Part V endeavors to reconcile the various authorities with the rationales underlying privilege and distill a measure of consistency in proceedings involving clients, counsel, and spouses.22
18 See, e.g., United States v. Rothberg, 896 F. Supp. 450, 454–55 (E.D. Pa. 1995) (citations omitted) (discussing the crime-fraud exception). 19 See, e.g., Laver & Luongo, supra note 12 (“Prudent attorneys can protect their clients, and themselves from malpractice exposure, however, by taking proactive steps to guard against unwitting waiver.”); Miller, supra note 1 (“The loss of the attorney client privilege could hurt your client and place you on the hook for malpractice, unless you handle it the right way.”). 20 See EPSTEIN, supra note 9, at 266; Hurley & Berghahn, supra note 12; Miller, supra note 1. 21 Given that the focus of the Article is on the intersection of the privileges, this review is of necessity brief. E.g., Jared S. Sunshine, The Secrets of Corporate Courtship and Marriage: Evaluating Common Interest Privilege When Companies Combine in Mergers, 69 S.C. L. REV. 301 (2017). Many authors have described and discussed these privileges in depth should the reader seek further detail. See generally DAN MARKEL ET AL., PRIVILEGE OR PUNISH: CRIMINAL JUSTICE AND THE CHALLENGE OF FAMILY TIES 36–37 (2009); EPSTEIN, supra note 9 at 3–4; SPAHN, supra note 17, at 6; Anne N. Deprez, Pillow Talk, Grimgribbers and Connubial Bliss: The Marital Communication Privilege, 56 IND. L.J. 121, 147–48 (1980); Charles W. Jakopich, Marital Privileges, 46 CHI.-KENT L. REV. 71, 76 (1969); Milton C. Regan, Jr., Spousal Privilege and the Meanings of Marriage, 81 VA. L. REV. 2045, 2052–53 (1995). 22 This author has previously written on analogues between shared attorney-client privilege in the merger context and the marital communications privilege. See Sunshine, supra note 21, at 302. CLIENTS, COUNSEL, AND SPOUSES
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At the end of the day, there are few cases directly on point. The Article therefore reviews the more substantive cases in some detail, so that practitioners may note any parallels or points of differentiation. In most jurisdictions, no court has grappled squarely with the questions that arise at the uncertain junction of the two oldest privileges. The Article necessarily also looks to the preeminent treatises to provide an informed opinion of what courts lacking controlling precedent may take into consideration in fashioning judgments.23 But given the sparsity of guidance, some residual uncertainty in this area is inescapable.24 Nonetheless, clients will continue to seek succor from their counsel and spouses—and inevitably, sometimes both—and their attorneys should consequently forearm themselves with the relevant rationales and risks to offer the best advice to their clients.25
I. THE ATTORNEY-CLIENT AND MARITAL PRIVILEGES
John Henry Wigmore’s classically concise formulation prescribes that attorney-client privilege applies: (1) Where legal advice of any kind is sought (2) from a professional legal adviser in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or by the legal adviser, (8) except the protection be waived.26 The attorney-client privilege is naturally the most familiar to the bar and little elaboration is warranted here.27 It is worth observing, however, that the confidentiality between attorney and client must be diligently maintained28 and only communications for a legal
23 See infra sections II.B & III.B. Cf. Swidler & Berlin v. United States, 524 U.S. 399, 406– 07 (1998) (citations omitted) (consulting treatises on evidence to discern boundaries of privilege in uncertain circumstances). To be sure, the omission of a treatise from these discussions is not a critique of its eminence, but likely a matter of limited space or the brevity (or absence) of commentary on the relevant issues of privilege. 24 See Miller, supra note 1. 25 See EPSTEIN, supra note 9, at 266; Miller, supra note 1. 26 United States v. Kovel, 296 F.2d 918, 921 (2d Cir. 1961) (quoting WIGMORE, supra note 11, § 2292); accord, e.g., Cavallaro v. United States, 284 F.3d 236, 245 (1st Cir. 2002); United States v. Martin, 278 F.3d 988, 999 (9th Cir. 2002); United States v. Rockwell Int’l, 897 F.2d 1255, 1264 (3d Cir. 1990); Simon v. GD Searle & Co., 816 F.2d 397, 403 n.7 (8th Cir. 1987); United States v. Lawless, 709 F.2d 485, 487 (7th Cir. 1983); United States v. El Paso Co., 682 F.2d 530, 538 n.9 (5th Cir. 1982); United States v. Goldfarb, 328 F.2d 280, 281 (6th Cir. 1964). 27 See Dobbins, supra note 5, at 41 (“The attorney-client privilege is well-known to the public as well as to attorneys and judges.”). 28 See Swidler & Berlin v. United States, 524 U.S. 399, 403 (1998) (citations omitted); CLIENTS, COUNSEL, AND SPOUSES
494 Albany Law Review [Vol. 81.2 purpose can obtain privilege,29 consultations for other reasons (social, business, or otherwise) with someone who happens to be an attorney cannot be shoehorned into the privilege.30 These boundaries follow from the privilege’s dual mandates to permit clients to communicate freely with counsel in service of compliance with the law and effective representation,31 but also to interdict no more evidence than necessary.32 The marital privileges lack so succinct a definition as Dean Wigmore provided for attorney-client privilege.33 The most fundamental point is that two distinct evidentiary protections arise from matrimony.34 The elder of the two,35 the marital testimonial or “anti-marital facts” privilege, has long protected one spouse from testifying against the other.36 Like the Fifth Amendment privilege
Upjohn Co. v. United States, 449 U.S. 383, 389 (1981) (citations omitted); Hunt v. Blackburn, 128 U.S. 464, 470 (1888); see also Paul R. Rice, Attorney-Client Privilege: The Eroding Concept of Confidentiality Should Be Abolished, 47 DUKE L.J. 853, 853–55 (1998) (discussing the attorney-client privilege and arguing that confidentiality should be abolished). 29 See Upjohn Co., 449 U.S. at 394 (“The communications at issue were made by Upjohn employees to counsel for Upjohn acting as such, at the direction of corporate superiors in order to secure legal advice from counsel.”). 30 See, e.g., United States v. Johnson, 146 F.3d 785, 794 (10th Cir. 1998) (quoting Motley v. Marathon Oil Co., 71 F.3d 1547, 1550–51 (10th Cir. 1995)) (“[T]he mere fact that an attorney was involved in a communication does not automatically render the communication subject to the attorney-client privilege.”). 31 See Fisher v. United States, 425 U.S. 391, 403 (1976) (“As a practical matter, if the client knows that damaging information could more readily be obtained from the attorney following disclosure than from himself in the absence of disclosure, the client would be reluctant to confide in his lawyer and it would be difficult to obtain fully informed legal advice.”); Swidler & Berlin, 524 U.S. at 403 (quoting Upjohn, 449 U.S. at 389). 32 Fisher, 425 U.S. at 403. 33 See Louisell, supra note 4, at 101 (“[T]he current analysis of the privileges is unsatisfactory and is contributing to confusion in judicial opinions, notably in federal cases.”). 34 See id. at 107 n.38 (“Careful distinction must be made between . . . privilege against adverse marital testimony . . . and the privilege of confidential communication between husband and wife.”); see generally Trammel v. United States, 445 U.S. 40, 43–46 (1980) (describing the history of marital privileges). 35 In older precedent, spouses were not so much privileged against testifying as legally incompetent to do so, and some courts have viewed spousal incompetence as a third (and now no longer extant) privilege arising from marriage. E.g., United States v. Allery, 526 F.2d 1362, 1365 (8th Cir. 1975) (“Three types of marital privilege were recognized at common law: (1) incompetency, where a spouse is determined to be incompetent to testify in civil or criminal proceedings for or against the other; (2) anti-marital facts, whereby one spouse could prevent the other from testifying against the other although otherwise competent; and (3) marital confidential communications, which prohibits testimony concerning intra-spousal, confidential communications arising from the marital relationship.”); see Deprez, supra note 21, at 123; Jakopich, supra note 21, at 71. Perhaps better is to view the spousal incompetence as having transmuted into the modern marital testimonial privilege. See Trammel, 445 U.S. at 44 (citing JOHN MACAUTHUR MAGUIRE, EVIDENCE: COMMON SENSE AND COMMON LAW, 90–91 (1947)). 36 See Trammel, 445 U.S. at 43; Hawkins v. United States, 358 U.S. 74, 75 (1958), overruled in part by, Trammel, 445 U.S. 40. The marital testimonial privilege was more often referred as the “anti-marital facts” privilege in older cases. E.g., Allery, 526 F.2d at 1367; Deprez, supra CLIENTS, COUNSEL, AND SPOUSES
2017/2018] Clients, Counsel, and Spouses 495 against self-incrimination, the testimonial privilege does not regulate which communications can be inquired into, but affords blanket immunity against being compelled to testify at all.37 The marital testimonial privilege is tied to the marriage itself, and thus can no longer be invoked should the marriage end, whether by divorce or death.38 Moreover, it usually applies only in criminal matters, echoing the privilege against self-incrimination.39 And relatively recently, the Supreme Court has clarified that one spouse cannot force the other to invoke the testimonial privilege: spouses may freely elect to testify should they so desire.40 The other marital privilege is communicational, like the attorney- client, physician-patient, and priest-penitent: it prevents the interlocutor in whom secrets are reposed from divulging them, but does not preclude the interlocutor from testifying more generally.41 And unlike the testimonial privilege, the communicational privilege continues to apply even after the marriage ends.42 As with the attorney-client communicational privilege, the conversation must have been conducted confidentially, and during the course of the applicable relationship—here, the marriage.43 The Supreme Court has repeatedly applied a presumption of confidentiality to any private exchange between spouses.44 Some lower courts have nonetheless tried to carve out exemptions for categories thought to be unconnected to marital intimacies, notably business communications.45 Such exemptions, however, are rife with
note 21, at 125. 37 See Trammel, 445 U.S. at 53; Hawkins, 358 U.S. at 77. 38 E.g., Pereira v. United States, 347 U.S. 1, 6 (1954) (“[D]ivorce removes the bar of incompetency [for a spouse to testify.]”); Jakopich, supra note 21, at 72–73. 39 See Katherine O. Eldred, “Every Spouse’s Evidence”: Availability of the Adverse Spousal Testimonial Privilege in Federal Civil Trials, 69 U. CHI. L. REV. 1319, 1320 (2002); see also Hawkins, 358 U.S. at 81 (Stewart, J., concurring) (defining the testimonial privilege as that of criminal defendants). 40 See Trammel, 445 U.S. at 52–53. 41 See id. at 45 (citation omitted); Deprez, supra note 21, at 126–27; see also Eldred, supra note 39, at 1320 (comparing marital communicational privilege to the priest-penitent and physician-patient privileges). 42 See Pereira, 347 U.S. at 6 (“[D]ivorce . . . does not terminate the privilege for confidential marital communications.”); see also Deprez, supra note 21, at 131–32; Jakopich, supra note 21, at 72–73. 43 See Pereira, 347 U.S. at 6; Wolfle v. United States, 291 U.S. 7, 14 (1934) (citations omitted); Jakopich, supra note 21, at 72, 80. 44 See Pereira, 347 U.S. at 6; Blau v. United States, 340 U.S. 332, 333 (1951) (citation omitted); Wolfle, 291 U.S. at 14; Deprez, supra note 21, at 128–29; Jakopich, supra note 21, at 75. 45 See, e.g., G-Fours, Inc. v. Miele, 496 F.2d 809, 811 (2d Cir. 1974) (assessing availability of the so-called “ordinary business matters” exception); Parkhurst v. Berdell, 18 N.E. 123, 127 (N.Y. 1888) (noting how conversations between husband and wife were regular conversations CLIENTS, COUNSEL, AND SPOUSES
496 Albany Law Review [Vol. 81.2 exemptions of their own where the exchange does suggest a nexus to the marital unit.46 Indeed, the Supreme Court found that even purely logistical information such as a wife reporting her location to her husband is protected.47 Apart from a third party’s presence, the presumption of marital privilege in spousal conversations is quite robust.48 Throughout this Article, reference to marital privilege denotes this communicational subspecies, focusing as it does on whether shared conversations enjoy privilege, not whether the spouse can ultimately invoke blanket testimonial immunity at trial.49 Some contours of the attorney-client and marital privileges are the same, reflecting similar models.50 Both, for example, are subject to certain public policy exceptions, the most notable of which is called the crime-fraud doctrine.51 Under this rule, an otherwise privileged communication that itself evidences an ongoing or future crime or fraud loses its protection, because whatever the public policy favoring
relating to business matters and thus there was no reason to believe that such conversations would not have been held in the presence of another); see also Deprez, supra note 21, at 128 n.50 (“The presumption of confidentiality does not apply to interspousal communications concerning business matters.”). 46 See, e.g., United States v. Rakes, 136 F.3d 1, 3 (1st Cir. 1998) (rejecting challenge to marital privilege based on financial nature of discussion to sell a store based on the couple’s joint interest therein); Flatworld Interactives LLC v. Apple Inc., No. C-12-01956-JSW-EDL, 2013 WL 11319071, at *5 (N.D. Cal. Dec. 24, 2013) (upholding marital privilege for documents described as business communications); Atlantic Richfield Co. v. Triad Petroleum, Inc., 120 F.R.D. 471, 473 (S.D.N.Y. 1988) (upholding order denying further depositions because plaintiff failed to establish that communications were non-confidential business communications that were not subject to the marital privilege). 47 See Blau, 340 U.S. at 334 (“Several of the witnesses who appeared were put in jail for contempt of court. Under such circumstances, it seems highly probable that Mrs. Blau secretly told her husband where she could be found. Petitioner’s refusal to betray his wife’s trust therefore was both understandable and lawful. We have no doubt that he was entitled to claim his privilege.”). 48 See id. at 333 (citation omitted); Wolfle, 291 U.S. at 13–14 (citations omitted); Deprez, supra note 21, at 128–29; Jakopich, supra note 21, at 76–77. The other major species of exceptions are communications thought to contravene or undermine the marriage itself. See Deprez, supra note 21, at 132; infra notes 488–93 and accompanying text. 49 As such, rather than recite the cumbersome formulation “marital communicational privilege” ad nauseum, the briefer phrase “marital privilege” is used hereinafter. See, e.g., Louisell, supra note 4, at 107 n.38 (“It is of course elementary that careful distinction must be made between the obsolescent disqualification of one spouse to testify for the other, . . . the privilege against adverse marital testimony called by Wigmore the anti-marital privilege, . . . and the privilege of confidential communication between husband and wife with which we are now concerned.”). 50 See Trammel v. United States, 445 U.S. 40, 45 (1980) (citation omitted) (“Wigmore and others suggested a privilege protecting only private marital communications, modeled on the privilege between priest and penitent, attorney and client, and physician and patient.”). 51 See Kendall C. Dunson, The Crime-Fraud Exception to the Attorney-Client Privilege, 20 J. LEGAL PROF. 231, 232 (1996); Article, CPLR 4502(b): Spousal Privilege Does Not Extend to Conversations Which Advance Joint Criminal Activity, 51 ST. JOHN’S L. REV. 810, 810–11 (1977) [hereinafter CPLR 4502(b)]. CLIENTS, COUNSEL, AND SPOUSES
2017/2018] Clients, Counsel, and Spouses 497 protection, it does not reach so far as to shield active lawbreaking.52 Critically, however, disclosures of prior criminal or fraudulent acts remain privileged; the attorney-client privilege in particular would be nugatory if the client could not freely relate potentially illegal actions to his attorney.53 On the other hand, were a client (or spouse) to conspire with an attorney (or spouse) to commit a future crime, such discussions represent an ongoing criminal enterprise and receive no protection.54 Of foundational relevance to the present inquiry are the repercussions to both privileges of third parties, as the spouse is seemingly a stranger to attorney-client privilege, and an attorney a stranger to marital privilege.55 Writing of the latter privilege, the Supreme Court declared tersely: “[t]he presence of a third party negatives the presumption of privacy. So too, the intention that the information conveyed be transmitted to a third person.”56 As for the former, there are even more holdings of similar definitude: “[O]rdinarily, statements made by a client to his attorney in the presence of a third person do not fall within the privilege, even when the client wishes the communication to remain confidential . . . .”57 and “[V]oluntary disclosure to a third party of purportedly privileged communications has long been considered inconsistent with an assertion of the privilege.”58 The question this Article ultimately seeks to answer is whether the peculiar posture and rationale for privilege when clients, counsel, and spouses interact suffices to overcome the general rule denying protection when third parties are involved.59
52 See, e.g., In re Grand Jury Investigation (Schroeder), 842 F.2d 1223, 1226 (11th Cir. 1987) (citations omitted) (providing test for crime-fraud exception to attorney-client privilege); G- Fours, Inc. v. Miele, 496 F.2d 809, 812 (2d Cir. 1974) (“We think New York would follow the lead of other jurisdictions which have held that the marital privilege is not available to refuse disclosure of communications designed to perpetrate frauds.”). 53 See In re Federal Grand Jury Proceedings 89-10, 938 F.2d 1578, 1582 (11th Cir. 1991) (“The client’s ability to defend against charges in connection with the past crime or fraud would accordingly be severely hampered, if not rendered impossible.”). 54 See id. at 1581 (quoting Grand Jury Investigation (Schroeder), 842 F.2d at 1226); In re Grand Jury Subpoena 92-1(SJ), 31 F.3d 826, 831 (9th Cir. 1994) (quoting United States v. Hodge Zweig, 548 F.2d 1347, 1354 (9th Cir. 1977)); United States v. Estes, 793 F.2d 465, 468 (2d Cir. 1986). 55 See People v. Allen, 427 N.Y.S.2d 698, 699 (Sup. Ct. 1980). 56 Pereira v. United States, 347 U.S. 1, 6 (1954) (citations omitted); see Wolfle v. United States, 291 U.S. 7, 16–17 (1934). 57 Jenkins v. Bartlett, 487 F.3d 482, 490 (7th Cir. 2007). 58 Westinghouse Electric Corp. v. Republic of the Philippines, 951 F.2d 1414, 1424 (3d Cir. 1991) (citing United States v. AT&T, 642 F.2d 1285, 1299 (D.C. Cir. 1980)). 59 The Article returns to the contours and rationales for the intersecting privileges in its final Part, armed with a fuller understanding of the relevant case law. See infra section V. CLIENTS, COUNSEL, AND SPOUSES
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II. THREE-WAY CONVERSATIONS:60 PRIVILEGE AMONGST CLIENT, COUNSEL, AND SPOUSE
When client, counsel, and spouse are all present, there are two communicational privileges simultaneously at issue.61 The analysis for the exchanges between counsel and client are different than that between spouses; although confidentiality is an element of both privileges, its exact application differs both in precedent and rationale.62 Unlike the posture when a privileged communication is retransmitted, in a three-way conversation the question is whether the requisite confidentiality exists for privilege to arise at all.63 Proponents have rightly pointed courts to “several cases which set forth the principle that the presence of a client’s spouse or relative at a meeting with an attorney does not automatically destroy the privileged nature of the communication.”64 Tellingly, in most of the three-way conversation cases, the urged privilege is attorney-client rather than marital; the case then turns on whether the spousal relationship allows the attorney-client privilege to attach.65 Perhaps this is because the attorney-client privilege is both more familiar and flexible than the marital.66 Yet regardless of emphasis, the paucity and ambivalence of the relevant cases render a definitive rule elusive.67
A. Case Studies in Three-Way Conversations
Examining the cases carefully, it is possible to tease apart three approaches. The more restrictive does not accord any particular status to spouses in three-way conversations, but permits privilege to be upheld consistent with general principles68 when the third-
60 People v. Allen, 427 N.Y.S.2d 698, 699 (Sup. Ct. 1980). The case from which this useful shorthand derives is described at greater length below. See infra section II.A.1. 61 See In re Sosnow, No. 312365, 2007 N.Y. Misc. LEXIS 4709, at *2–3 (N.Y. Sur. Ct. June 21, 2007) (citations omitted). 62 See infra section V.A. 63 See People v. Osorio, 549 N.E.2d 1183, 1186–87 (N.Y. 1989) (citations omitted). 64 United States v. Hudson, No. 13-20063-01-JWL, 2013 WL 4768084, at *3 n.1 (D. Kan. Sept. 5, 2013) (citations omitted). 65 See infra Table 1. 66 For a fuller discussion of this phenomenon, see infra section V.A.2. 67 See, e.g., Wesp v. Everson, 33 P.3d 191, 199 n.13 (Colo. 2001) (“[T]he effect of a spouse’s presence on a communication between attorney and client is not entirely clear.”). 68 See, e.g., Jenkins v. Bartlett, 487 F.3d 482, 490–91 (7th Cir. 2007) (citations omitted) (“However, there is an exception to the general rule that the presence of a third party will defeat a claim of privilege when that third party is present to assist the attorney in rendering legal services . . . . This exception applies both to agents of the attorney, such as paralegals, CLIENTS, COUNSEL, AND SPOUSES
2017/2018] Clients, Counsel, and Spouses 499 party spouse is acting effectively as an agent or either the client or counsel; determining whether privilege applies is therefore a rather factbound exercise.69 The second arises where both spouses share an interest in legal representation and therefore can both be considered protected clients, applying well-settled principles of general privilege law.70 And the most permissive line of cases appears to view the marital privilege as being incorporated into or meshing with the attorney-client privilege such that a spouse’s presence ipso facto cannot abrogate otherwise valid attorney-client privilege.71 Such cases can be decided as a matter of law once attorney-client privilege is found, and thus tend to offer scant elaboration beyond the statement that a spouse’s presence does not preclude privilege.72
1. Analyzing Spouses Under Agency Theory
It will be helpful to begin with a New York surrogate’s court decision in In re Sosnow,73 as the opinion provides a well-written distinction between relying on marital privilege per se and analyzing the relationship via agency.74 The grandchildren of the decedent, who had left an estate of roughly $130 million,75 sought to penetrate the attorney-client privilege between the executrix, Sheila Sosnow, and the estate’s attorneys, based on Sosnow’s husband’s involvement in their discussions.76 The court concisely laid out the legal framework: Generally, conversations between attorney and client made in
investigators, secretaries and members of the office staff responsible for transmitting messages between the attorney and client, and to outside experts engaged ‘to assist the attorney in providing legal services to the client,’ such as accountants, interpreters or polygraph examiners. Additionally, this exception reaches retained experts, other than those hired to testify, when the expert assists the attorney by transmitting or interpreting client communications to the attorney or formulating opinions for the lawyer based on the client’s communications.”). 69 See infra section II.A.1. 70 See infra section II.A.2. 71 See infra section II.A.3. 72 See, e.g., In re Grand Jury Subpoenas Dated March 24, 2003, 265 F. Supp. 2d 321, 332 n.51 (S.D.N.Y. 2003) (citations omitted); United States v. Rothberg, 896 F. Supp. 450, 454 n.7 (E.D. Pa. 1995); In re Katz, 81 N.Y.S.2d 21, 22 (Sur. Ct. 1948). 73 See generally In re Sosnow, No. 312365, 2007 N.Y. Misc. LEXIS 4709, at *1–10 (N.Y. Sur. Ct. June 21, 2007). Confusingly, some authorities miscite this case as In re Horowitz. See, e.g., United States v. Hudson, No. 13-20063-01-JWL, 2013 U.S. Dist. LEXIS 126655, at *8 n.1 (D. Kan. Sept. 5, 2013) (citations omitted). Even more confusingly, Weinstein-Korn-Miller cites a later but identically worded version of the holding entered in a different surrogate’s court. See WEINSTEIN-KORN-MILLER, supra note 17, ¶ 4503.16 n.7 (citing In re Estate of Morris Sosnow, 2007 N.Y. Misc. LEXIS 5565 (N.Y. Sur. Ct. July 19, 2007)). 74 See Sosnow, 2007 N.Y. Misc. LEXIS 4709, at *7. 75 Id. 76 Id. at *1–2. CLIENTS, COUNSEL, AND SPOUSES
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the presence of third parties are not privileged. In some states, the presence of a spouse does not negate the confidentiality of an attorney-client communication, on the theory that the marital communications privilege is incorporated into the transaction. This is not the law in New York. In New York, confidential communications between spouses are protected from disclosure by CPLR 4502(b). Where a client discloses a prior attorney-client communication to a spouse, the disclosure is protected by CPLR 4502. Nevertheless, communications between an attorney and client are generally not privileged in New York if the client’s spouse is present at the time of the transaction. The exception would be where the spouse is an agent of the client.77 Thus equipped, the court went on to find that the husband was properly viewed as an agent, noting the fact that he was well-suited to provide information to Sosnow and counsel on the status of the decedent’s business operations.78 Moreover, the court quoted New York’s highest court for the proposition that the scope of privilege is defined by the client’s reasonable expectation of confidentiality, not the absolute legal niceties of agency law.79 And “it would be unreasonable to discern any expectation on the part of Sheila Sosnow or her attorneys other than that their conversations in the presence of Richard Nagler would remain strictly confidential.”80 Privilege was therefore upheld.81 Despite the stark declaration that the legal rule in New York stands opposed to privilege when client, counsel, and spouse are all present, the agency exception as applied seems to swallow much of the general rule. The court in In re Sosnow recited several cases in which privilege was upheld under agency when clients’ daughters’ attended legal meetings, in some cases on little more evidence than that the child was present to “provide moral support” to her mother.82
77 Id. at *2–3 (internal citations omitted). 78 See id. at *6–7. 79 Id. at *6 (quoting People v. Osorio, 549 N.E.2d 1183, 1186 (N.Y. 1989)) (“[T]he scope of the privilege is not defined by the third parties’ employment or function . . . it depends on whether the client had a reasonable expectation of confidentiality under the circumstances.”). 80 Sosnow, 2007 N.Y. Misc. LEXIS 4709, at *7. 81 Id. at *9. 82 See id. at *5–6 (first citing In re Weinberg, 509 N.Y.S.2d 240, 242 (Sur. Ct. 1986); then citing In re Nigro, N.Y.L.J., Oct. 5, 2004, 17 at 20, col. 1 (N.Y. Sur. Ct. 2004); then citing Stroh v. General Motors Corp., 623 N.Y.S.2d 873, 875 (App. Div. 1995)). CLIENTS, COUNSEL, AND SPOUSES
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If such arrangements suffice to establish agency, then it will be the rare consultation between spouses and counsel that does not qualify under New York law, as one would hardly bring one’s spouse to a legal meeting unless one had a reasonable expectation of at least amorphous moral support.83 Of course, where the spouse has a more tangible role to play, as in In re Sosnow, the case for spousal agency, and thus privilege, is all the stronger.84 Some cases still stand for New York’s general rule. In People v. Allen,85 the defendants Jimmie Lee Allen and Junius Gray stood accused of a quadruple homicide.86 Defense counsel had objected to the prosecution’s demand that he produce any written statements from anticipated witnesses when it became clear that would include notes from a conversation with Allen’s wife Rose,87 explaining that in view of the fact that his conversation with Mrs. Allen had taken place in jail, in the course of a three-way conversation between himself, Mrs. Allen, and the defendant, that any turnover of his notes would be in violation of the husband-wife privilege, or alternatively, in violation of the attorney-client privilege, which counsel urges, became “meshed” with the husband-wife privilege by virtue of this three-way conversation.88 The court disposed of this objection in two sentences, as neatly as could be: the presence of the attorney precluded any marital privilege, and the presence of the spouse precluded any attorney- client privilege.89 Such reasoning, of course, is at the heart of any hostility to privilege in the three-way conversation context and comports with New York’s rejection of the idea that the marital privilege can be somehow incorporated (or meshed, as Allen had it) with the attorney-client privilege.90 Even if spouses may well qualify as agents, New York declines to accord husband or wife ipso facto special status by virtue of marriage; as In re Sosnow put it, “agency between a husband [and] wife is not to be implied from the mere fact
83 See Charal v. Pierce, No. CV-81-0042, 1981 U.S. Dist. LEXIS 17497, at *28–29 (E.D.N.Y. Nov. 3, 1981) (citations omitted). 84 See Sosnow, 2007 N.Y. Misc. LEXIS 4709, at *2, *6–8. 85 People v. Allen, 427 N.Y.S.2d 698 (Sup. Ct. 1980). 86 Id. at 699. 87 Id. 88 Id. 89 Id. at 699–700 (citations omitted) (“Additionally, the law is clear that communications between husband and wife made in the known presence of a third person are not confidential and, hence, are not privileged. The attorney-client privilege is similarly waived.”). 90 See In re Sosnow, No. 312365, 2007 N.Y. Misc. LEXIS 4709, at *2–3 (Sur. Ct. June 21, 2007) (citations omitted). CLIENTS, COUNSEL, AND SPOUSES
502 Albany Law Review [Vol. 81.2 of marriage, [but] actual agency may be implied from the conduct of the parties or established by proof of subsequent ratification.”91 Still, no other New York cases have squarely reached the issue of three- way conversations,92 except for one muddled early case that seems to actually abjure New York’s strict rule.93 The sort of weakened agency analysis for relatives suggested by In re Sosnow is on display in Charal v. Pierce, where the plaintiff in a securities fraud class action suit, Adele Charal, refused to answer questions in a deposition regarding a meeting between herself, her husband Harry, and her counsel, Richard Danneberg.94 Defendants argued Harry Charal was not an agent, being unnecessary to facilitate communications, and therefore abrogated privilege.95 The court, however, relied on Weinstein’s and McCormick’s treatises in treating relatives as a special class for determining attorney-client privilege, turning on whether Charal reasonably viewed the three- way conversation as confidential and needed her husband’s presence to protect her interests.96 Thus, the court readily found that “[i]t is clear that Mrs. Charal understood the January 5, 1981 conference among herself, her husband, and her attorney to be confidential. It is equally clear that Mrs. Charal relied on her husband of 45 years for advice, as no doubt he did on her in other matters.”97 Uniquely, the court went on to separately uphold the marital privilege for communications directly between Adele and Harry Charal during the meeting with Danneberg.98 Invoking the same test regarding reasonable intent, the court relied on a line of Supreme Court cases to hold that “communications between a husband and wife, when clearly intended to be confidential, are privileged and that the presence of a third person does not defeat this privilege as long as the communication was still intended to be confidential.”99
91 Id. at *4 (quoting Kozecke v. Humble Oil & Refining Co., 362 N.Y.S.2d 272, 274 (N.Y. Sup. Ct. App. Div. (1974)). 92 But see WEINSTEIN-KORN-MILLER, supra note 17, ¶ 4503.16 n.7 (proposing that three other New York surrogate’s court decisions demonstrate New York’s rule, although one involves a retransmitted communication and offers no written opinion on appeal, In re Von Gontard’s Will, 39 N.E.2d 939, 940 (N.Y. 1942), and the other two are at best garbled as to the principles being applied). 93 See In re Estate of Katz, 81 N.Y.S.2d 21, 22 (Sur. Ct. 1948). 94 Charal v. Pierce, No. CV-81-0042, 1981 U.S. Dist. LEXIS 17497, at *1, *28 (E.D.N.Y. Nov. 3, 1981). 95 Id. at *28. 96 See id. at *28–29 (citations omitted). 97 Id. at *29. 98 Id. (citations omitted). 99 Id. at *29–30 (citing Trammel v. United States, 445 U.S. 40, 53 (1980); Hawkins v. United States, 358 U.S. 74, 80 (1958); Blau v. United States, 340 U.S. 332, 334 (1951); Wolfle v. United CLIENTS, COUNSEL, AND SPOUSES
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Leaving New York, but not agency theory, a Connecticut court alighted on intersecting privileges in Baeder v. Fourth of July Celebration Committee,100 where the plaintiff Janice Baeder sought damages for a slip and fall accident at the local Taste of Enfield fair.101 Her husband Brian (who was a member of the Committee) was to be deposed, and she sought a protective order in advance to preclude his testifying to any communications she may have had with him, as well as any discussions he attended with her and counsel.102 The court partially granted the motion on grounds of marital privilege but denied as to the attorney-client privilege.103 As to the latter, the court observed that “even if Mr. Baeder were present for his wife’s meetings with counsel, there is no claim that he was acting as her attorney’s assistant,” and thus would constitute a third party vitiating privilege.104 Unclear, however, was whether any communications between the Baeders in the presence of counsel would enjoy the sustained marital privilege, as the court added to that holding the caveat that the “communications were made during the marriage and that they were intended to be private.”105 Echoing the logic of In re Sosnow106 and Charal,107 one would think privacy is expected in communications amongst husband, wife, and counsel, but the court did not elaborate further.108 Nonetheless, the court’s reliance on the Connecticut Supreme Court’s opinion in State v. Gordon109 intimates otherwise, as does the opinion by the Virginia Circuit Court in Brownfield v. Hodous.110 In Gordon, William and Janet Gordon had both participated in extensive planning with the former’s counsel Robert Casale in connection with charges that William had conspired in burglary, unlawful restraint, robbery, and larceny.111 Janet Gordon was not a
States, 291 U.S. 7, 14–15 (1934).). 100 Baeder v. Fourth of July Celebration Comm., Inc., No. CV-04-5000893, 2007 WL 360707 (Conn. Super. Ct. Jan. 24, 2007). 101 Id. at *1. 102 Id. 103 Id. at *2. 104 Id. 105 Id. (citing State v. Christian, 841 A.2d 1158, 1174 (Conn. 2004)). 106 In re Sosnow, No. 312365, 2007 N.Y. Misc. LEXIS 4709, at *1 (Sur. Ct. June 21, 2007). 107 Charal v. Pierce, No. CV-81-0042, 1981 LEXIS 17497, at *28–30 (E.D.N.Y. Nov. 3, 1981). 108 Baeder, 2007 WL 360707, at *2. 109 State v. Gordon, 504 A.2d 1020 (Conn. 1985). 110 See Brownfield v. Hodous, 82 Va. Cir. 315, 317 (Va. Cir. 2011) (citations omitted) (construing Baeder as finding no privilege in the three-way conversation, marital or attorney- client); see also Wesp v. Everson, 33 P.3d 191, 199 (Colo. 2011) (en banc) (finding no privilege in a three-way conversation). 111 Gordon, 504 A.2d at 1021 (citations omitted). CLIENTS, COUNSEL, AND SPOUSES
504 Albany Law Review [Vol. 81.2 passive observer: Outwardly, she was stalwart in maintaining her husband’s innocence. She regularly accompanied the defendant on weekly, and often daily, visits to Casale’s office, and was present during attorney-client discussions between the defendant and Casale. At home, she participated in three-way phone conversations with the defendant and Casale. More important, it appears that Janet Gordon was an active participant in the planning of defense strategy, including the decision of whether she or the defendant would take the stand, the discussion of which other witnesses might be helpful to the case and how these witnesses could be located, and the preparation of a list of alibi witnesses.112 In fact, however, she had gone to the police and disclosed a defense strategy in an effort to obtain witness protection for herself and her children.113 Once this emerged, William Gordon sought dismissal based on the theory that his wife acted as an agent of the state in penetrating his privileged consultations, but the trial court found no violation given the police had instructed her to dissociate herself from the case and keep private any further meetings with counsel, even though she continued to attend the legal meetings thereafter.114 On appeal, the Connecticut Supreme Court discerned no error.115 Besides affirming the finding that Janet Gordon had not betrayed any confidences as an agent of the police, the court also considered the argument that her extensive involvement in planning made her effectively an agent of counsel, and therefore her initial disclosure of attorney-client confidences violated the defendant’s Sixth Amendment right to counsel.116 The court found this argument to be foreclosed by the facts, as the impetus for her participation appeared to be the defendant’s rather than counsel’s: no agency existed, and thus the general rule that a third party’s presence precluded privilege applied.117 To his potential detriment, William Gordon lodged no claim that Janet’s status as his wife implied that the communications
112 Id. at 1022–23. 113 See id. at 1023. 114 See id. at 1023–24. 115 See id. at 1022. 116 See id. at 1025 (“The defendant has raised the additional and related argument that Janet Gordon became so intimately involved in the planning of defense strategy that she was bound to respect the same attorney-client confidentiality requirement as if she had been a legal associate of defense counsel.”). 117 See id. at 1025. CLIENTS, COUNSEL, AND SPOUSES
2017/2018] Clients, Counsel, and Spouses 505 were separately protected under the marital privilege.118 Finally, in Rao v. Board of Trustees of the University of Illinois,119 the defendants sought to compel the production of correspondence involving the plaintiff’s counsel Jeff Rock, his wife Siva Jasti, and their two children, who were also lawyers.120 Jasti advanced three arguments for privilege. First, she claimed she was represented by the three lawyers on the communications, but this the court rejected off hand because she had testified to the contrary previously.121 Second, she claimed she shared a common interest with her husband, but the court again demurred: “If Plaintiff is simply arguing that Ms. Jasti has a common interest with the Plaintiff because it is important to both of them that Plaintiff prevail in the instant law suit, this Court has found no case that bends the common interest doctrine to such an extreme definition.”122 Third, the court considered at length whether Ms. Jasti was an agent of either counsel or plaintiff, considering her help in managing documents, refreshing the plaintiff’s memory, preparing information for the case, and conducting internet searches.123 The court was ultimately unpersuaded, admitting it could find “no case in this circuit where the privilege has extended to family members of parties who are primarily assisting with basic ministerial and administrative tasks, which appears to [be] Ms. Jasti’s role in this litigation.”124 The court found Jasti an “important” amanuensis rather than a “necessary” agent and thus her presence precluded privilege.125
2. When the Spouses Are Co-Clients
As Rao intimates, in perhaps the least troublesome cases, attorney- client privilege can attach because both spouses have a common interest in the legal matter on which counsel is consulted.126 Without reaching the intersection with the marital privilege, therefore, attorney-client privilege will be upheld based on traditional
118 See id. at 1024 n.1 (citation omitted). 119 Rao v. Bd. of Tr. of the Univ. of Ill., No. 14-cv-0066, 2016 U.S. Dist. LEXIS 145298 (N.D. Ill. Oct. 20, 2016). 120 Id. at *2. 121 Id. at *7. 122 Id. at *9. 123 See id. at *11–12. 124 Id. at *13. The court expressly declined to rely on decisions from New York and Rhode Island holding to the contrary. Id. at 13 n.3. 125 See id. at *14 (citation omitted). 126 See id. at *9 (citations omitted). CLIENTS, COUNSEL, AND SPOUSES
506 Albany Law Review [Vol. 81.2 standards of joint representation.127 Indeed, even commentators who have cast doubt on the viability of multi-client privilege in general have offered no objection to protecting privilege when two clients retain the same attorney for the same matter.128 That said, at times, common interest has been inferred rather blithely of family members.129 DiPalma v. Medical Mavin, Ltd.130 provides a useful segue by juxtaposing analyses in both agency and common interest, like Rao.131 Michael LaLiberte engaged a firm led by attorney Kevin Ryan to assist in selling his medical practice.132 The attempt did not turn out as planned, and Dr. LaLiberte, his wife Patricia, and Ryan were all deposed at length, and eventually counsel applied to the court to terminate Ryan’s notably endless examination.133 Collaterally, the court also reviewed Ryan’s refusal to testify as to conversations involving Patricia LaLiberte based on attorney-client privilege.134 Whilst acknowledging that a privileged communication may occur via an agent, the court took the strict view that such agency applies only if an agent’s presence be absolutely necessary (à la interpreters).135 The court saw no such basis for Patricia LaLiberte’s presence, but nonetheless seemed deferential to privilege because “there was a commonality of interest between the LaLibertes. Thus, had Mrs. LaLiberte merely been present at and privy to conversations between Dr. LaLiberte and Mr. Ryan, her presence would not vitiate the privilege.”136 The court did not provide the exact (or any) basis for the LaLibertes’ common interest, revealing the readiness with which some courts assume spouses are aligned.137 That said, the court warned that were Patricia LaLiberte
127 See id. at *10 (citation omitted). 128 See generally Grace M. Giesel, End the Experiment: The Attorney-Client Privilege Should Not Protect Communications in the Allied Lawyer Setting, 95 MARQ. L. REV. 475, 519–20, 522 (2012) (discussing joint client representation and the attorney-client privilege). 129 See, e.g., Schreiber v. Kellogg, No. 90–5806, 1992 U.S. Dist. LEXIS 16180, at *3 (E.D. Pa. Oct. 19, 1992) (citations omitted) (“[A] third person who has a commonality of interest with a party does not vitiate the privilege. From the first page of the memorandum, it appears that defendant’s father was taking an ordinary parental interest and advisory role in his son’s legal affairs. The presence of a parent in such a capacity at a meeting with his son and his attorney does not defeat the attorney-client privilege.”). 130 DiPalma v. Medical Mavin, Ltd., No. 95-8094, 1998 WL 123009 (E.D. Pa. Feb. 10, 1998). 131 See id. at *2, *3; Rao, 2016 U.S. Dist. LEXIS 145298, at *9–10. 132 See DiPalma, 1998 WL 123009, at *1. 133 See id. 134 See id. 135 See id. at *2. 136 Id. at *3 (citing In re Grand Jury Investigation, 918 F.2d 374, 386 (3d Cir. 1990); Schreiber v. Kellogg, No. 90-5806, 1992 U.S. Dist. LEXIS 16180, at *3 (E.D. Pa. Oct. 19, 1992)). 137 See id.; Giesel, supra note 128, at 479. CLIENTS, COUNSEL, AND SPOUSES
2017/2018] Clients, Counsel, and Spouses 507 a more active participant, common interest might not extend to her own exchanges with counsel.138 In DeGeer v. Gillis,139 Randall DeGeer sued his partners in a management consulting business based on failure to pay an allegedly due bonus.140 In the course of discovery, DeGeer claimed privilege over a handful of emails between himself and counsel, a few of which were copied to his wife Tara, asserting both the marital privilege and that the couple were co-clients under attorney-client privilege.141 An Illinois district court, however, relied only on the second argument in finding that the DeGeers shared a common interest in the suit and therefore privilege was maintained.142 Reaching the opposite result in State v. Rhodes,143 the Minnesota Supreme Court confronted a defendant accused of murdering his wife who sought to block the testimony of his lawyer regarding a three-way conversation with his wife as to the financial concomitants of divorce, reasoning he and his wife were effectively co-clients.144 The trial court refused and was affirmed succinctly on appeal, with the court crediting the lawyer’s testimony that the couple were not joint clients, and applying the standard rule that a third party vitiates privilege.145 Meanwhile, in an early case, the Kansas Supreme Court also encountered a husband and wife contemplating separation in O’Brien v. New England Mutual Life Insurance Co.146 James O’Brien had initiated divorce proceedings with his wife and a few months later was found dead of a gunshot wound; a lawsuit eventuated against his life insurance company to determine whether the death was a suicide that would void payment.147 The insurance company sought to compel the testimony of O’Brien’s wife’s attorney during a conference involving all three to attempt to reconcile—and they had indeed patched things up by the time of O’Brien’s death.148 The court first recited the standard rule that if counsel “acted as attorney for both parties their communications although admissible in a controversy
138 See DiPalma, 1998 WL 123009, at *3. 139 DeGeer v. Gillis, No. 09-C-6974, 2010 WL 3732132 (N.D. Ill. Sept. 17, 2010). 140 See id. at *1. 141 See id. at *7. 142 See id. (citing Grochocinski v. Mayer Brown Rowe & Maw LLP, 251 F.R.D. 316, 326–27 (N.D. Ill. 2008)). 143 State v. Rhodes, 627 N.W.2d 74 (Minn. 2001), aff’d, 657 N.W.2d 823 (Minn. 2003). 144 See id. at 77, 85. 145 See id. (“Because Jane was a nonclient third party, her presence prevented the attorney- client privilege from attaching.”) 146 O’Brien v. New England Mutual Life Ins. Co., 197 P. 1100 (Kan. 1921). 147 See id. at 1101. 148 See id. at 1101, 1101–02. CLIENTS, COUNSEL, AND SPOUSES
508 Albany Law Review [Vol. 81.2 between each other, would be privileged from disclosure at the instance of a third person.”149 Even construing the attorney as representing only the wife, however, the court upheld privilege, finding “no room for presuming that statements made to his attorney by one party to a divorce action in the presence of the other in the course of a conference looking to an adjustment of the controversy are not intended to be confidential.”150 Crucially, the court discerned a public policy in encouraging the “fullest freedom of utterance” between spouses seeking to reconcile.151 And separating statements by the non-represented husband from those of the wife and attorney was infeasible given they were “interwoven” by the nature of a three- way conversation.152 Last but not least, the facts of United States v. Rakes153 are too sensational not to detail: Stephen Rakes was charged with numerous counts of obstruction of justice and perjury, despite being the putative victim of racketeering and extortion.154 Rakes and his wife Julie had once been small business owners after opening a liquor store with the assistance of their counsel John Sullivan.155 Under the government’s theory, they incurred the enmity of unnamed violent criminals in South Boston by undercutting other local dramshops and were the target of unspecified threats.156 The notorious James “Whitey” Bulger then (allegedly) visited Rakes at his home and threatened to murder him, unless he and his associates were given a financial stake in the store.157 It was undisputed that the Rakeses did sell the store, again with Sullivan’s assistance, though the government viewed the sale price as too favorable to be bona fide.158 The indictments against Rakes arose after he repudiated the
149 Id. at 1102 (citations omitted). The caveat noted here—that where husband and wife are co-clients, no privilege can exist as between them—came to pass in In re Buckhardt’s Estate. 129 N.Y.S.2d 340 (Sur. Ct. 1954). There, an attorney testified he had represented both August and Catherine Buckhardt jointly for forty years, and thus after August Buckhardt’s death, when Catherine sought to elicit his testimony regarding a three-way conversation, the court had no trouble finding that the decedent’s own privilege was no impediment. See id. at 342 (first citing Doheny v. Lacy, 61 N.E. 255, 259 (N.Y. 1901); then citing Hurlburt v. Hurlburt, 28 N.E. 651, 652 (N.Y. 1891); then citing In re Cunnion’s Will, 94 N.E. 648, 651 (N.Y. 1911); and then citing Baumann v. Steingester, 107 N.E. 578, 579 (N.Y. 1915)); see also Duncan v. Duncan, 56 Va. Cir. 264 (Cir. Ct. 2001). 150 O’Brien, 197 P. at 1102. 151 Id. 152 Id. 153 United States v. Rakes, 136 F.3d 1 (1st Cir. 1998). 154 Id. at 2. 155 Id. 156 Id. 157 Id. 158 Id. CLIENTS, COUNSEL, AND SPOUSES
2017/2018] Clients, Counsel, and Spouses 509 government’s theory before two grand juries and instead testified he had found the liquor store too much effort to maintain and sold it for profit, not under duress.159 The government sought to introduce conversations both between Stephen and Julie Rakes, as well as between the Rakeses and Sullivan, but the district court would have none of it; the government then took an interlocutory appeal.160 The First Circuit Court of Appeals was equally unpersuaded.161 As for communications solely between the Rakeses, the court found them paradigmatic examples of marital privilege, notwithstanding the financial nature of any discussions regarding the sale of the liquor store.162 And not even the government appeared to suggest that both spouses’ presence in consultations with Sullivan compromised the attorney-client privilege: both, after all, had legal interests in the sale of their liquor store and thus were viewed as co-clients.163 The court thus found no cause to deny the requisite confidentiality or privilege: “Rakes intended his conversations, with both his wife and his attorney, to be confidential. Further, if Stephen Rakes had been threatened, as the government alleges, he had ample reason over and above any ordinary interest in privacy to want them to be kept confidential.”164 Notably, however, the Rakeses claimed only attorney-client privilege in conversations between themselves and counsel, not marital privilege, so the court had no cause to pass on whether the latter existed.165 Parenthetically, the government’s main arguments centered on the crime-fraud exception to privilege: that both the attorney-client and marital privileges were vitiated because the parties were participating in a crime—namely the alleged extortion.166 The court
159 Id. 160 Id. at 2–3. 161 Id. at 6 162 Id. at 2, 3. These discussions, however, were solely between the Rakeses and therefore do not implicate any intersection of privilege. Id. at 3. Interestingly, the court observed that “the government properly makes nothing of the possibility that one of the conversations occurred in the presence of their infant children.” Id. This reflects a general rule that a couple’s minor children generally do not breach confidentiality, as they are a party of the family unit that the privilege protects. See Zitter, supra note 15, at 8. 163 See Rakes, 136 F.3d at 3 (“Sullivan’s representation of Rakes . . . w[as] related to legal services, and no one was present except one or both of the Rakeses and attorney Sullivan.”). 164 Id. 165 See id. at 2 (“Asserting the privilege for confidential marital communications, Stephen Rakes moved to suppress evidence of conversations in December 1983 and January 1984 between him and Julie Rakes concerning alleged threats and the sale of Stippo’s. He also asked the court to suppress, on grounds of attorney-client privilege, conversations between Stephen Rakes or both Rakeses and Sullivan concerning the sale of Stippo’s, Inc. and the purpose of the sale.”). 166 Id. at 4. CLIENTS, COUNSEL, AND SPOUSES
510 Albany Law Review [Vol. 81.2 rejected this adamantly, observing that on the government’s own version of events, the Rakeses were not participants in the extortion in any capacity other than that of victim. The Rakeses were participants only in the very specialized sense that the victim of a robbery “participates” by handing over his wallet under threat of violence, or the victim of a rape “participates” by offering no further resistance when resistance appears futile or dangerous. This is not the kind of participation in an offense that, in our view, vitiates the privilege.167 Similar logic applied in the court finding no threat to privilege even if one spouse might have encouraged the other not to report the alleged threats to the police.168 In the end, the court concluded that the “notion that the Rakeses could properly be treated as participating in their own extortion is Orwellian. An appeal for which such a proposition had to be the linchpin ought never to have been brought.”169
3. A Per Se Rule: Meshing Attorney-Client and Marital Privileges
In the third line of cases, courts construe the availability of the marital privilege as rendering a spouse no stranger to the attorney- client communication.170 Put another way, the marital privilege meshes into the attorney-client privilege to create a unit of three persons where confidentiality remains unbroken.171 In all these cases, however, the question is whether the marital privilege can be incorporated into the attorney-client, rather than vice versa.172 Ultimately, however, which of the two privileges ends up on top in preserving the communications’ inviolability is semantic; the result remains the same.173
167 Id. 168 Id. at 4–5. 169 Id. at 6. Perhaps the government’s notion was not so outrageous, however: two decades later, the Supreme Court would find it possible for a corrupt police officer exacting payment under color of law to conspire with the party making the payment for the purpose of proving a conspiracy. See Ocasio v. United States, 136 S. Ct. 1423, 1436 (2016). 170 See United States v. Rothberg, 896 F. Supp. 450, 454 n.7 (E.D. Pa. 1995); Brownfield v. Hodous, 82 Va. Cir. 315, 317 (Cir. Ct. 2011) (citation omitted). 171 See Rothberg, 896 F. Supp. at 454 n.7; Brownfield, 82 Va. Cir. at 317. 172 See Rothberg, 896 F. Supp. at 454 n.7; Brownfield, 82 Va. Cir. at 316. 173 See Brownfield, 82 Va. Cir. at 317, 318 (citations omitted); United States v. Rakes, 136 F.3d 1, 5 (1st Cir. 1998). Of course, the rationale for which privilege ends up on top may be meaningful, but the consequence is identical: the communication is protected. See infra notes 495–505 and accompanying text. CLIENTS, COUNSEL, AND SPOUSES
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In what might be considered the other side of the crime-fraud coin from Rakes, a federal district court in Pennsylvania also faced the government seeking incriminating testimony based on a meeting between husband, wife, and counsel in United States v. Rothberg.174 Michael Rothberg was indicted for arson of a nightclub he owned in service of an insurance fraud scheme, and eventually convicted following two mistrials.175 Understandably, a key piece of evidence was a conversation prior to the fire amongst Rothberg, his wife Yvonne, and his attorney, seeking “his counsel’s advice ‘so he wouldn’t be legally responsible for the bills and involving himself in the fire,’ should the club be burned down.”176 The court noted that “[b]ecause of spousal confidentiality, it was ruled that there was no third-party waiver,”177 agreeing on that much with Rakes.178 But unlike Rakes, the court held that the underlying attorney-client privilege was vitiated nonetheless per the crime-fraud doctrine, given that the conversation was so clearly intended to facilitate Rothberg’s commission of the arson scheme.179 The attorney was by the time of trial deceased, and so the conversation was attested to by his wife.180 More helpfully, a Virginia court surveyed much of the meager law on point to date in Brownfield v. Hodous & Hodous, LLP.181 Pamela Brownfield and her husband had met with her lawyer Edward Lowry, and left certain marked-up documents in his care, which Lowry later inadvertently produced to the defendants; Brownfield sought a finding they were privileged.182 The defendants argued that Lowry’s presence defeated the crucial marital privilege, citing Allen and Baeder.183 But the court followed the Restatement and endorsed a meshing of the two privileges, rejecting the defendants’ argument
174 See Rothberg, 896 F. Supp. at 454. 175 See id. at 452. 176 Id. at 455. 177 Id. at 454 n.7. 178 See Rakes, 136 F.3d at 3. 179 See Rothberg, 896 F. Supp. at 455 (citation omitted). 180 See id. at 454 n.7. Normally, the marital adverse testimonial privilege would have allowed Yvonne Rothberg to refuse to testify against her husband in a criminal case, but by the time of trial she was “estranged” from her husband and evidently appeared voluntarily. See id. at 454; Trammel v. United States, 445 U.S. 40, 52–53 (1981) (establishing that the marital adverse testimonial privilege does not apply where a spouse elects to testify willingly). 181 See Brownfield v. Hodous, 82 Va. Cir. 315, 317 (Cir. Ct. 2011) (citing Rothberg, 896 F. Supp. at 454 n.7; In re Grand Jury Subpoenas Dated March 24, 2003, 265 F. Supp. 2d 321, 332 n.51 (S.D.N.Y. 2003); People v. Allen, 427 N.Y.S.2d 698, 699 (Sup. Ct. 1980); Baeder v. Fourth of July Celebration Comm., Inc., No. CV045000893, 2007 Conn. Super. LEXIS 204, at *5–6 (Super. Ct. Jan. 24, 2007)). 182 See Brownfield, 82 Va. Cir. at 315–16. 183 See id. at 317 (citing Allen, 427 N.Y.S.2d at 699; Baeder, 2007 Conn. Super. LEXIS 204, at *5–6). CLIENTS, COUNSEL, AND SPOUSES
512 Albany Law Review [Vol. 81.2 and finding dispositive whether Virginia law recognizes a marital privilege “that protects the communications in the same way as the attorney-client privilege.”184 Finding it did, the court upheld attorney-client privilege, reasoning that Brownfield “intended that the communications would remain confidential and did not manifest any contrary intent by permitting her husband to review the documents or attend the meeting.”185 In short, the very existence of the marital privilege meant a spouse’s presence could not vitiate the confidentiality of attorney-client protections.186 Unexpectedly, New York provided an early example of the categorical theory in the probate case In re Estate of Katz.187 There, Rosa Katz, the wife and executrix of her husband Frank, sought a commission to take the testimony of her late husband’s solicitor in London in connection with probating the estate, as she claimed the right to half of a business in which her husband had interest.188 The question was complicated because she herself had apparently attended meetings with both her husband and his solicitor.189 The court found that if she attended in a co-client posture as her husband’s business partner, then no privilege could apply as between her and her husband, and she was therefore entitled to the commission.190 On the other hand, “[i]f she appeared with the decedent merely in the capacity of his wife and not as a business associate then the communications between the attorneys and the decedent would be privileged.”191 Her capacity in the appearance being unclear from the record, the case was continued to make the determination.192 The district court in In re Grand Jury Subpoenas Dated March 24, 2003 touched only briefly on the subject, but the breadth of its holding is striking.193 The preponderance of the opinion focused on a claim of
184 See Brownfield, 82 Va. Cir. at 317–18 (quoting RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS § 71 cmt. b (AM. LAW INST. 2000) [hereinafter RESTATEMENT]). 185 Brownfield, 82 Va. Cir. at 318. 186 See id. 187 In re Estate of Katz, 81 N.Y.S.2d 21 (Sur. Ct. 1948). 188 See id. at 22. 189 See id. 190 See id. Under well-established law, conversations between co-clients are not privileged as against one another. Other cases in the marital context have reached the same conclusion. See e.g., In re Buckhardt’s Estate, 129 N.Y.S.2d 340, 342 (N.Y. Sur. Ct. 1954) (citing Doheny v. Lacy, 61 N.E. 255, 259 (N.Y. 1901)); In re Cunnion’s Will, 94 N.E. 648, 651 (N.Y. 1911); Baumann v. Steingester, 107 N.E. 578, 579–80 (N.Y. 1915)). 191 Katz, 81 N.Y.S.2d at 22. 192 See id. 193 In re Grand Jury Subpoenas Dated March 24, 2003, 265 F. Supp. 2d 321, 324, 332 n.51 (S.D.N.Y. 2003) (citations omitted). CLIENTS, COUNSEL, AND SPOUSES
2017/2018] Clients, Counsel, and Spouses 513 attorney-client privilege between a client and the public relations firm her counsel had hired to assist in legal representation, construing the privilege broadly to allow for the professional specialists to advance the engagement as agents of counsel without forfeiting protection.194 Given such leniency, it is unsurprising that the court did not elaborate further in adding: “[t]hat Target’s spouse was present during some of these conversations does not destroy any applicable privilege.”195 Indeed, at some meetings no lawyers were in attendance at all, yielding the rather novel result that a conversation solely amongst a husband, wife, and public relations firm enjoyed attorney-client privilege.196 It seems safe to say that In re Grand Jury Subpoenas represents a high water mark of judicial extension of attorney-client privilege in the marital context.197 Finally, one would be remiss to overlook Wesp v. Everson, where the Colorado Supreme Court confronted appalling circumstances: after Heather Wesp sued her mother Cheryl Brewer and stepfather, alleging the latter had sexually abused her, both parents prepared wills and took their own lives.198 The case continued with their estates substituted as defendants, and Wesp sought to call her stepfather’s attorney to testify regarding a joint meeting he had attended with both Brewer and her husband.199 The court allowed the testimony under the standard rule that a third party abrogates privilege,200 but the holding offers little precedential value, for as the court noted, “[b]ecause the parties do not dispute whether the attorney-client communications made in Cheryl Brewer’s presence are privileged, we decline to address this issue.”201 In doing so, however, the court sua sponte noted the fundamental lack of clarity in existing precedent, citing the divergent approaches taken and results obtained in Rothberg, Charal, and Allen.202
194 See id. at 326. 195 Id. at 332 n.51 (citations omitted); see Solomon v. Sci. Am., Inc., 125 F.R.D. 34, 36 (S.D.N.Y. 1988). Of note, Solomon was not in the posture of a simultaneous conversation between client, counsel, and spouse, but rather involved retransmission of privileged information to a spouse. Solomon, 126 F.R.D. at 36–38. 196 See In re Grand Jury Subpoenas Dated March 24, 2003, 265 F. Supp. 2d at 332. 197 See id. 198 Wesp v. Everson, 33 P.3d 191, 193–95 (Colo. 2001) (en banc). 199 See id. at 195. 200 See id. at 197 (citing D.A.S. v. People, 863 P.2d 291, 295 (Colo. 1993)). 201 Wesp, 33 P.3d at 199 n.13. 202 See id. (citing United States v. Rothberg, 896 F. Supp. 450, 454 n.7 (E.D. Pa. 1995); Charal v. Pierce, No. CV-81-0042, 1981 U.S. Dist. LEXIS 17497, at *28–30 (E.D.N.Y. Nov. 3, 1981); People v. Allen, 427 N.Y.S.2d 698, 699–700 (App. Div. 1980)). CLIENTS, COUNSEL, AND SPOUSES
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A. Guidance from Preeminent Secondary Sources
Like the commentators discussed in the introduction, treatises on evidence and privilege have recognized the potential presence of family in supposedly confidential meetings as presenting a serious dilemma for counsel.203 Many of the preeminent authors have therefore addressed whether conversations between clients, counsel, and spouses can obtain privilege.204 With considerable homogeneity, however, they have taken the third approach, pronouncing categorically that a spouse’s presence at a legal meeting does not preclude the attorney-client privilege if the jurisdiction also recognizes a marital privilege. Epstein, for instance, observes that that “individual clients often appear at an attorney’s office with a ‘significant other’ be it a friend, lover, spouse, or parent” and therefore “an attorney would be well advised to explain that the continued presence of that third party would be sufficient to waive the privilege and to inquire if the client is prepared to run that risk.”205 That is measured advice to be sure, but Epstein then propounds in no uncertain terms that “[i]f the significant other is a spouse, the marital privilege extends to protect the communication with the attorney.”206 Rather, it is the other categories of significant others (for example, children, in-laws, and friends) that run the risk of vitiating privilege.207 Intimating an agency analysis, Epstein advises that for those categories, one should assess the “need for the presence of a particular family member to be present or . . . need to have a communication with an attorney funneled through a family member[,]” but reiterates that no such analysis need be done for one who enjoys the marital privilege, being protected automatically.208 A few more exemplars suffice to illustrate the consensus. Weinstein agrees with characteristic terseness,209 whilst the
203 See, e.g., Laver & Luongo, supra note 12; see also Hurley & Berghahn, supra note 12. 204 See, e.g. Hurley & Berghahn, supra note 12; see also Louisell, supra note 4, at 10102. 205 EPSTEIN, supra note 9, at 266. 206 Id. 207 See id. at 267 (“But where there is neither an espousal privilege nor some type of age infirmity, the presence of a family member at a confidential communication . . . will vitiate the existence of any otherwise available privilege.”). 208 EDNA SELAN EPSTEIN, THE ATTORNEY-CLIENT PRIVILEGE AND THE WORK PRODUCT DOCTRINE 66 (5th ed. Supp. 2012) [hereinafter EPSTEIN SUPPL.]. 209 JACK B. WEINSTEIN & MARGARET A. BERGER, STUDENT EDITION OF WEINSTEIN’S EVIDENCE MANUAL § 18.08 (9th ed. 2011) [hereinafter WEINSTEIN’S EVIDENCE] (“A privilege is not waived by disclosing a privileged communication during another communication that is also privileged, either under either the same or a different privilege.”). In fairness, Weinstein’s CLIENTS, COUNSEL, AND SPOUSES
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Restatement explains at greater length: The presence of a stranger to the lawyer-client relationship does not destroy confidentiality if another privilege protects the communications in the same way as the attorney-client privilege. Thus, in a jurisdiction that recognizes an absolute husband-wife privilege, the presence of a wife at an otherwise confidential meeting between the husband and the husband’s lawyer does not destroy the confidentiality required for the attorney-client privilege.210 And the New Wigmore poses a didactic hypothetical: However, suppose that a client brings his or her wife to the meeting, but the clear understanding is that the first spouse is the only client. The question arises whether the presence of the client’s spouse negates confidentiality. There is a separate communications privilege for the spousal relationship. Given the existence of that privilege, there is an inference of intent to maintain confidentiality notwithstanding the other spouse’s presence. The inference arises from the holder’s selection of a companion with whom he or she has a privileged relation.211 What these treatises also have in common is that they cite very little precedent for their authoritative guidance that a spouse’s presence does not vitiate attorney-client privilege.212 That is, they do not purport to be privy to a lode of jurisprudence beyond the sparse holdings found in the reporters. It is thus difficult to square the certitude conveyed by these pronouncements ex cathedra with the ambivalence and brief treatment in the cases themselves.213 The venerable McCormick better represents holdings like those from New York and Connecticut, employing a more instrumental analysis, but at the cost of glossing over the crucial differentiation between spouses who enjoy a marital communicational privilege and other relations who receive no such protection:
formulation can equally well be taken as endorsement of privilege in the retransmission context, and it arguably fits better there given the focus on waiver. 210 RESTATEMENT, supra note 184, § 71 cmt. b. 211 NEW WIGMORE, supra note 9, § 6.8.1. 212 See EPSTEIN, supra note 9, at 266; NEW WIGMORE, supra note 9, § 6.8.1 nn.83 & 84; WEINSTEIN & BERGER, supra note 209, § 18.08. 213 Moreover, in several cases they conflate the three-way conversation posture with that of retransmitted communications, despite the fact that the considerations are quite different: whether privilege arises in the first place versus whether it is waived because of a later disclosure. See EPSTEIN supra note 9, at 267; see also NEW WIGMORE, supra note 9, § 6.8.1 nn.83 & 84. CLIENTS, COUNSEL, AND SPOUSES
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As to relatives and friends of the client, the results of the cases are not consistent, but it seems that here not only might it be asked whether the client reasonably understood the conference to be confidential but also whether the presence of the relative or friend was reasonably necessary for the protection of the client’s interests in the particular circumstances.214 It is understandable that a survey of cases involving such a miscellany of interlocutors—ranging from privileged helpmeets to acquaintances of happenstance—would yield inconsistency of results.215 Perhaps the omission of spouses as a special class within relatives (contra the treatment in, for example, Epstein216) may be taken to endorse the New York approach of denying any particular protection to spouses and relying instead on agency generally.217 On the other hand, McCormick expresses doubt as to the propriety of the agency analysis undertaken in Gordon, the primary case it cites specifically addressing spouses rather than other relations.218 A more contrarian voice can also be found in the American Law Reports series, which places emphasis on the agency and common interest theories whilst omitting any mention of the per se meshing theory advocated by the other treatises: [I]n a number of cases, the courts have held that matters communicated between client and attorney were privileged, notwithstanding the presence of the client’s spouse . . . such as where the spouses shared a common legal interest in pursuing civil claims, or where the nonclient spouse essentially functioned as the client spouse’s agent. However, other courts have found that the presence of one spouse at a conference between the other spouse and an attorney vitiated the privilege, in accordance with the general rule, and especially where the spouse was found not to be the client spouse’s agent.219 This omission may result from the ALR’s not addressing the key cases relevant to the meshing theory, depending instead on cases
214 MCCORMICK, supra note 17, § 91, at 558–60, 559 n.15. 215 See id. 216 See e.g., EPSTEIN SUPPL., supra note 208, at 66. 217 See In re Sosnow, No. 312365, 2007 N.Y. Misc. LEXIS 4709, at *3 (N.Y. Sur. Ct. June 21, 2007) (citations omitted). 218 See MCCORMICK, supra note 17, § 91 at 559 n.15; see also Gordon, 504 A.2d 1020, 1025 (Conn. 1985). 219 Zitter, supra note 15, § 2. CLIENTS, COUNSEL, AND SPOUSES
2017/2018] Clients, Counsel, and Spouses 517 resting on agency and common interest.220 Notably, moreover, a number of the holdings denying privilege involved not merely the presence of a spouse, but also children or friends,221 whose presence the authorities (except perhaps McCormick222) agree calls for a different and stricter analysis.223 Be that as it may, the foremost treatise on New York law at least harbors no doubt that privilege cannot apply in three-way conversations absent agency or co-client arrangements.224 All in all, however, to disregard the greater consensus because of limited or inapposite citations would sell short opinions of persuasive erudition and eminence. Moreover, treatises matter to decisions: several of the cases rely on secondary sources for their holdings.225 Likely the best lesson to be drawn is that the authorities broadly view the cases finding for the categorical preservation of privilege in three- way conversations as better founded in law and policy.226 As Justice Scalia once reminded of the Restatement, hornbooks can be prescriptive rather than descriptive, reflecting a more aspirationally consistent and cogent jurisprudence than the bench has in fact delivered.227 Given the sparsity of case law, such aspirations are valuable normative guidance from the doyennes and doyens of the bar.
B. Summing Up Precedent in Three-Way Conversations
In theory, both the agency and common interest theories reject or at least ignore any unique result in privilege law arising from the intersection of the attorney-client and marital privileges.228 Any two
220 See id. §§ 4–5. 221 See id. § 5. 222 See MCCORMICK, supra note 17, § 91, at 558–60, 559 n.15. 223 See, e.g., EPSTEIN, supra note 9, at 267–68; EPSTEIN SUPPL., supra note 208, at 66. 224 See WEINSTEIN-KORN-MILLER, supra note 17, ¶ 4503.16 (“The question of whether a third person is unnecessarily present or is a joint-client is often a close question of fact for the court. When the third person present is the husband or wife of the client, neither the spousal nor attorney-client privilege protects the conversation: the attorney’s presence prevents the spouses from speaking in confidence and the spouse’s presence prevents the attorney and client from talking confidentially.”). 225 See, e.g., Brownfield v. Hodous, 82 Va. Cir. 315, 317–18 (Cir. Ct. 2011) (citing RESTATEMENT, supra note 184, § 71 cmt. b; Charal v. Pierce, No. CV-81-0042, 1981 U.S. Dist. LEXIS 17497, at *28–29 (E.D.N.Y. Nov. 3, 1981) (citing In re Horowitz, 482 F.2d 72, 81 (2d Cir. 1973); United States v. Aronoff, 466 F. Supp. 855, 862 (S.D.N.Y. 1979); WEINSTEIN’S EVIDENCE, supra note 209, at 503-29–3; MCCORMICK, supra note 17, § 91 at 189). 226 See, e.g., MCCORMICK, supra note 17, § 91, at 558–60; EPSTEIN, supra note 9, at 266. 227 Kansas v. Nebraska, 135 S. Ct. 1042, 1064 (2015) (Scalia, J., dissenting). 228 See, e.g., In re Sosnow, No. 312365, 2007 N.Y. Misc. LEXIS 4709, at *3 (Sur. Ct. June 21, 2007) (citing Doe v. Poe, 677 N.Y.S.2d 770, 771 (1998); State v. Rhodes, 627 N.W.2d 74, 85 CLIENTS, COUNSEL, AND SPOUSES
518 Albany Law Review [Vol. 81.2 persons can function as principal and agent or share common interest in a matter, regardless of their marital status.229 New York, at least, positively disavows the meshing theory that has been applied elsewhere,230 whilst the Connecticut cases proceed under agency theory without commenting one way or the other—though one would presume that if they viewed the meshing theory as viable, the judges would say so.231 Yet In re Sosnow and Charal both illustrate that the bar for agency when the agent is a spouse may be low indeed: no more than the presumption than married couples may justifiably rely on one other, by Charal’s telling,232 or vague “moral support” from the cases cited in In re Estate of Sosnow.233 Even if New York rejects any per se special treatment of spouses, the conjugal relationship makes it more likely that agency can be argued.234 DiPalma and Rao, by contrast, both demonstrate a more traditionally skeptical view of agency (even whilst diverging sharply on their acceptance of a common interest argument).235 But less can be inferred from the cases upholding three-way conversation privilege on a common interest theory, for resting on that basis does not necessarily imply that privilege might not also have been available even absent a common interest.236 Indeed, the alternative analyses presented in O’Brien demonstrate how a single
(Minn. 2001)). 229 Cf. Sosnow, 2007 N.Y. Misc. LEXIS 4709, at *3 (citing Poe, 677 N.Y.S.2d at 771) (noting no special treatment for husband and wife in agency). 230 See, e.g., Sosnow, 2007 N.Y. Misc. LEXIS 4709, at *3 (citing Poe, 677 N.Y.S.2d at 771); People v. Allen, 427 N.Y.S.2d 698, 699 (N.Y. Sup. Ct. 1980) (citing People v. Dudley, 248 N.E.2d 860, 862 (N.Y. 1969); People v. Ressler, 269 N.Y.S.2d 414, 416 (N.Y. 1966)); see WEINSTEIN- KORN-MILLER, supra note 17, ¶ 4503.16 n.7. 231 See Baeder v. Fourth of July Celebration Comm., Inc., No. CV-04-5000893, 2007 Conn. Super. LEXIS 204, at *5–6 (Conn. Super. Ct. Jan. 24, 2007); State v. Gordon, 504 A.2d 1020, 1025 (Conn. 1985) (citing State v. Cascone, 487 A.2d 186, 189 n.3 (Conn. 1985)). 232 Charal v. Pierce, No. CV-81-0042, 1981 U.S. Dist. LEXIS 17497, at *29 (E.D.N.Y. Nov. 3, 1981). In fairness, an argument could be made that the special rule for relatives that Charal employs is more akin to a meshing theory than agency. But since it does not distinguish categorically between relatives and those enjoying a spousal privilege, it seems the question still rotates around the role of the spouse, and therefore is best viewed as a form of agency inquiry. 233 See Sosnow, 2007 N.Y. Misc. LEXIS 4709, at *5–6 (citing Stroh v. General Motors Corp., 213 A.D.2d 267, 267–68 (N.Y. Sup. Ct. 1995)). 234 See Sosnow, 2007 N.Y. Misc. LEXIS 4709, at *6–7. 235 See DiPalma v. Medical Mavin, No. 95-8094, 1998 U.S. Dist. LEXIS 1747, at *7–8 (E.D. Pa. Feb. 9, 1998) (citing Advanced Tech. Assocs. Inc. v. Herley Indus. Inc., no. CV-96-0132, 1996 U.S. Dist. LEXIS 17931, at *8 (E.D. Pa. Dec. 5, 1996)); Rao v. Bd. of Trs., No. 14-cv-0066, 2016 U.S. Dist. LEXIS 145298, at *12, *13 (N.D. Ill. Oct. 20, 2016) (citing LG Elecs. U.S.A., Inc. v. Whirlpool Corp., 661 F. Supp. 2d 958, 691–93 (N.D. Ill. 2009)). 236 See Boehner v. Heise, 734 F. Supp. 2d 389, 400–01 (S.D.N.Y. 2010) (citing Phelan v. Huntington Tri-Village Little League, Inc., 868 N.Y.S.2d 737, 738 (App. Div. 2008)). CLIENTS, COUNSEL, AND SPOUSES
2017/2018] Clients, Counsel, and Spouses 519 factual posture might be reviewed under two different theories.237 Whether the second analysis in O’Brien is truly a meshing argument or whether it represents a unique allowance based on the precise context of mending broken marriages is indeterminate, but it is not unreasonable to view it as an early precursor to the modern meshing cases.238 Given the tenor of discussion, there is good reason to think the courts in DeGeer and Rakes would have been sympathetic to upholding privilege even if the spouses were not co-clients,239 and DiPalma essentially assumes spouses enjoy sufficient commonality to maintain privilege.240 Yet DiPalma, in balance, seems philosophically chary of broad privilege protections,241 and in Rhodes and Rao, where the court rejected privilege under a common interest analysis, one can deduce that no meshing argument was available as a backstop.242 The per se meshing cases themselves offer but scant explanation for their holdings.243 Only Brownfield and O’Brien provide any elaboration as to a rationale, and O’Brien’s explanation obfuscates as much as explicates in many ways.244 Brownfield, by contrast, does good service in explaining why the existence of marital privilege permits a three-way conversation to remain privileged: if the touchstone is confidentiality, then the choice to involve an
237 See O’Brien v. New England Mut. Life Ins. Co., 197 P. 1100, 1102 (Kan. 1921) (citations omitted); see also DiPalma, 1998 U.S. Dist. LEXIS 1747, at *10–11 (citing Emejota Eng’g Corp. v. Kent Polymers Inc., No. 80-3523, 1985 U.S. Dist. LEXIS 13415, at *2 (E.D. Pa. Nov. 7, 1985); Frieman v. USAir Group, Inc., No. CV-93-3141, 1994 U.S. Dist. LEXIS 16994, at *7 (E.D. Pa. Nov. 23, 1994); Barr Marine Prods. Co. Inc. v. Borg Warner Corp., 84 F.R.D. 631, 635 (E.D. Pa. 1979)) (showing the use of twin analyses that yielded different results and yet only one positive finding is necessary for privilege to accrue). 238 See O’Brien, 197 P. at 1102 (citation omitted). 239 See DeGeer v. Gillis, No. 09-C-6974, 2010 U.S. Dist. LEXIS 97457, at *20 (N.D. Ill. Sept. 17, 2010) (“Communications containing Ms. DeGeer as a copied recipient remain privileged pursuant to the attorney-client privilege doctrine since Ms. DeGeer is a client in this case, and also pursuant to the marital privilege doctrine since she is DeGeer’s wife.”); United States v. Rakes, 136 F.3d 1, 3 (1st Cir. 1998) (“Both the content and context of the communications support the implicit finding by the district judge that Rakes intended his conversations, with both his wife and his attorney, to be confidential.”). 240 DiPalma, 1998 U.S. Dist. LEXIS 1747, at *8–9 (citing In re Grand Jury Investigation, 918 F.2d 374, 386 (3d Cir. 1990); Schreiber v. Kellogg, No. 90-5806, 1992 U.S. Dist. LEXIS 16180, at *2 (E.D. Pa. Oct. 19, 1992)). 241 See DiPalma, 1998 U.S. Dist. LEXIS 1747, at *9. 242 See State v. Rhodes, 627 N.W.2d 74, 85 (Minn. 2001) (citations omitted); Rao v. Bd. of Trs., No. 14-cv-00662016, U.S. Dist. LEXIS 145298, at *9–10 (N.D. Ill. Oct. 20, 2016) (citing McCullough v. FOP, 304 F.R.D. 232, 237–39 (N.D. Ill. 2014)). 243 See e.g., In re Grand Jury Subpoenas Dated March 24, 2003, 265 F. Supp. 2d 321, 332 n.51 (S.D.N.Y. 2003); United States v. Rothberg, 896 F. Supp. 450, 454 n.7 (E.D. Pa. 1995); In re Estate of Katz, 81 N.Y.S.2d 21, 22 (N.Y. Sur. Ct. 1948). 244 See O’Brien v. New England Mut. Life Ins. Co., 197 P. 1100, 1102 (Kan. 1921); Brownfield v. Hodous, 82 Va. Cir. 315, 316 (Va. Cir. Ct. 2011) (citation omitted). CLIENTS, COUNSEL, AND SPOUSES
520 Albany Law Review [Vol. 81.2 interlocutor enjoying the strictest of privacy protections does not alter the calculus of privilege in a meaningful way.245 This very logic is repeated in the treatises embracing the categorical meshing theory.246 O’Brien, meanwhile, usefully emphasizes the inextricably “interwoven” nature of three-way conversations, providing a doctrinal basis for the entirety of a three-way conversation obtaining privilege, and thus avoiding the need to dissect exactly which statements were exchanged between counsel and client, between counsel and spouse, and between the spouses themselves.247 Finally, it is noteworthy that few cases expressly passed on the availability of marital privilege in three-way conversations, as opposed to attorney-client privilege.248 Brownfield, indeed, deliberately avoided holding one way or the other whether marital privilege applied, instead upholding the attorney-client privilege based on the normative expectations of confidentiality embodied in the promulgation of a marital privilege.249 The two cases that did clearly reach the question split: Allen firmly rejected the notion,250 whilst Charal equally firmly endorsed it,251 and neither offered much by way of rationale. Meanwhile, although Baeder may be best read as rejecting marital privilege in the three-way context given its reliance on Gordon, the opinion does not make itself abundantly clear.252 At the very least, however, Baeder did uphold marital privilege as between husband and wife, though that is hardly a revolutionary holding.253
245 Brownfield, 82 Va. Cir. at 316, 318 (citations omitted). 246 See, e.g., RESTATEMENT, supra note 184, § 71 cmt. b; NEW WIGMORE, supra note 9, § 6.8.1 & nn.83–84. 247 O’Brien, 197 P. at 1102. 248 See, e.g., Brownfield, 82 Va. Cir. at 318 (citation omitted). 249 See, e.g., id. 250 People v. Allen, 427 N.Y.S.2d 698, 699–700 (N.Y. Sup. Ct. 1980) (citations omitted). 251 Charal v. Pierce, No. CV-81-0042, 1981 U.S. Dist. LEXIS 17497, at *29–30 (E.D.N.Y. Nov. 3, 1981) (citations omitted). 252 See Baeder v. Fourth of July Celebration Comm., Inc., No. CV-04-5000893, 2007 Conn. Super. LEXIS 204, at *5 (Super. Ct. Jan. 24, 2007) (quoting State v. Gordon, 504 A.2d 1020, 1025 (Conn. 1985)). 253 Baeder, 2007 Conn. Super. LEXIS 204, at *4. CLIENTS, COUNSEL, AND SPOUSES
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Table 1: Mapping Results to Reasoning in Three-Way Conversations
Reasoning Agency Common Interest Meshing/Per Se Result Three-Way Brownfield (Va. Cir.) DiPalma‡ (E.D. Pa.) Attorney- GJ Subpoenas (S.D.N.Y.) DeGeer (N.D. Ill.) Client Sosnow (N.Y. Sur.) Katz (N.Y. Sur.) O’Brien‡ (Kan.) Privilege O’Brien‡ (Kan.) Rakes (1st Cir.) Sustained Rothberg† (E.D. Pa.) Three-Way Attorney- Client and Charal (E.D.N.Y.) — — Marital Privilege Sustained Three-Way Attorney- Gordon (Conn.) Rao** (N.D. Ill.) Client DiPalma‡ (E.D.Pa.) Wesp** (Colo.) Rhodes (Minn.) Privilege Rao‡ (N.D. Ill.) Denied Three-Way Attorney- Allen (N.Y. Super.) Client and Baeder* (Conn. — — Marital Super.) Privilege Denied * Holding is not unambiguous; see main text for details. † In Rothberg, the three-way privilege was deemed initially valid under the meshing theory but failed under the crime-fraud exception.254 ** Wesp did not recognize three-way conversation privilege, but did not actually reach the question as neither party advocated it.255 ‡ These cases featured multiple theories.
If a unifying thread of logic can be discerned from the cases, it is that the reasonable expectation of confidentiality in three-way
254 United States v. Rothberg, 896 F. Supp. 450, 453, 454, 455–56 (E.D. Penn. 1995). 255 Wesp v. Everson, 33 P.3d 191, 203 (Colo. 2001). CLIENTS, COUNSEL, AND SPOUSES
522 Albany Law Review [Vol. 81.2 conversations weighs heavily on the result.256 In cases of every stripe, whether resting on agency, common-interest, or the meshing theory, the opinions underscore the clients’ beliefs that their conversations would remain private.257 Under agency reasoning, this appears as the policy that the spouses may properly rely on one another’s discretion;258 in common-interest cases, it takes the form of bolstering the cogency of the couple’s common front;259 and in the meshing cases, it is the justification for allowing the two privileges to coexist and supplement one another.260 And those cases that rejected privilege faced postures where confidentiality was less clearly defensible: a jailhouse conversation in Allen,261 a husband who was potentially adverse in Baeder,262 a wife who turned state’s evidence in Gordon,263 and a couple in the throes of divorce in Rhodes.264 The distinction is further reinforced by other cases sharply rejecting privilege when a client spoke with his attorney along with his wife notwithstanding that she was the opposing party.265 Rao is the most difficult to explain, though deficient advocacy may be partly to blame.266 Such considerations likely animate the treatises’ approach. In categorically proponing that attorney-client privilege survives a spouse’s presence, they reify the principle that spouses may
256 Cf., e.g., Robert P. Mosteller & Kenneth S. Broun, The Danger to Confidential Communications in the Mismatch Between the Fourth Amendment’s “Reasonable Expectation of Privacy” and the Confidentiality of Evidentiary Privileges, 32 CAMPBELL L. REV. 147, 156, 164 (2010) (privilege depends on reasonable expectation of confidentiality). 257 See Charal, 1981 U.S. Dist. LEXIS 17497, at *29 (citing In re Horowitz, 482 F.2d 72, 81 (2d Cir. 1973)); United States v. Aronoff, 466 F. Supp. 855, 862 (S.D.N.Y. 1979)); see also In re Sosnow, No. 312365, 2007 N.Y. Misc. LEXIS 4709, at *3 (N.Y. Sur. Ct. June 21, 2007); United States v. Rakes, 136 F.3d 1, 3 (1st Cir. 1998); Brownfield v. Hodous, 82 Va. Cir. 315, 316 (Va. Cir. Ct. 2011); O’Brien v. New England Mut. Life Ins. Co., 197 P. 1100, 1102 (Kan. 1921). 258 See Charal, 1981 U.S. Dist. LEXIS 17497, at *29 (citing Horowitz, 482 F.2d at 81; Aronoff, 466 F. Supp. at 862); see also Sosnow, 2007 N.Y. Misc. LEXIS 4709, at *3. 259 See Rakes, 136 F.3d at 3; see also DeGeer v. Gillis, No. 09-C-6974, 2010 U.S. Dist. LEXIS 97457, at *20–21 (N.D. Ill. Sept. 17, 2010) (citing Grochocinski v. Mayer Brown Rowe & Maw LLP, 251 F.R.D. 316, 326–27 (N.D. Ill. 2008)). 260 See Brownfield, 82 Va. Cir. at 316; O’Brien, 109 Kan. at 1102. 261 People v. Allen, 427 N.Y.S.2d 698, 699 (N.Y. Sup. Ct. 1980). 262 Baeder v. Fourth of July Celebration Comm., Inc., No. CV-04-5000893, 2007 Conn. Super. LEXIS 204, at *1 (Conn. Super. Ct. Jan. 24, 2007). 263 State v. Gordon, 504 A.2d 1020, 1023 (Conn. 1985). 264 State v. Rhodes, 627 N.W.2d 74, 85 (Minn. 2001) (citation omitted). 265 See, e.g., Morgan v. Morgan, 704 S.E.2d 764, 767 (Ga. 2011) (citing Bryan v. Barnett, 52 S.E.2d 613, 616–17 (Ga. 1949)) (“[W]here communications between attorney and client made in presence of opposing party, no privilege attaches[].”); Jones v. Jones, 620 P.2d 850, 852 (Mont. 1980) (citation omitted). 266 See Rao v. Bd. of Trs., No. 14-cv-0066, 2016 U.S. Dist. LEXIS 145298, at *8–9, *10–12, *13–14 (N.D. Ill. Oct. 20, 2016) (citations omitted). The result seems at least partially driven by the failure to clearly articulate for which party the wife was an agent—counsel or her husband—thus undermining arguments for confidentiality in both postures. CLIENTS, COUNSEL, AND SPOUSES
2017/2018] Clients, Counsel, and Spouses 523 justifiably expect that their legal-cum-marital conversations shall remain confidential.267 That normative judgment may well affect individual outcomes, as it informs courts’ assessment of the reasonableness of the expectation of privacy.268 Indeed, the meshing theory declares that (absent extraordinary circumstances) married couples’ expectation of confidentiality with counsel is presumptively reasonable given the marital privilege.269 And even if courts in New York and perhaps Connecticut do not embrace the treatises’ consensus,270 the cases suggest that spouses may receive favorable treatment under nominal agency analysis pursuant to similar normative judgments that a wife may “rel[y] on her husband of 45 years for advice, as no doubt he did on her in other matters.”271 Only where the factual underpinnings of the case rebut a presumption of confidentiality ought three-way conversations be jeopardized.272 Nevertheless, despite considerable consensus in the treatises, agreement is not universal, and more problematically, the consensus is not built on a broad and deep precedential foundation. Treatises may persuade, but are not controlling.273 Whilst the logic underlying the meshing of privileges appears largely sound, “the life of the law has not been logic but experience[.]”274 And the existing cases are too few, terse, and ambivalent to afford complete comfort to client or counsel that conversations involving a spouse will necessarily remain undiscoverable.275 In many jurisdictions, the question is one of first impression.276 Even in more experienced jurisdictions, different
267 See RESTATEMENT, supra note 184, § 71 cmt. b; NEW WIGMORE, supra note 9, § 6.8.1 & nn.83–84 (citations omitted). 268 See supra note 224 and accompanying text. 269 See Brownfield v. Hodous, 82 Va. Cir. 315, 317–18 (2011) (citation omitted) (“Virginia recognizes a spousal privilege ‘that protects the communications [between spouses] in the same way as the attorney-client privilege.’”). 270 See Baeder v. Fourth of July Celebration Comm., Inc., No. CV-04-5000893, 2007 Conn. Super. LEXIS 204, at *1 (Super. Ct. Jan. 24, 2007); WEINSTEIN-KORN-MILLER, supra note 17, ¶ 4503.16 n.7 (citations omitted). 271 Charal v. Pierce, No. CV-81-0042, 1981 U.S. Dist. LEXIS 17497, at *29 (E.D.N.Y. Nov. 3, 1981); see also In re Sosnow, No. 312365, 2007 N.Y. Misc. LEXIS 4709, at *3 (Sur. Ct. June 21, 2007) (citations omitted) (expanding the meshing theory’s applicability to filial relationships when agency may be implied from the conduct of the parties involved). 272 See supra Table 1 and accompanying text. 273 See, e.g., Swidler & Berlin v. United States, 524 U.S. 399, 406–07 (1998) (citations omitted) (“Despite the scholarly criticism, we think there are weighty reasons that counsel in favor of posthumous application.”). 274 Neder v. United States, 527 U.S. 1, 15 (1999) (citations omitted). 275 See In re Sosnow, No. 312365, 2007 N.Y. Misc. LEXIS 4709, at *2–3 (Sur. Ct. June 21, 2007) (citing Doe v. Poe, 700 N.E.2d 309 (N.Y. 1998)); People v. Allen, 427 N.Y.S.2d 698, 699– 700 (1980) (citations omitted). 276 See supra Table 1; e.g. Rao v. Bd. of Tr. of the Univ. of Ill., No. 14-cv-0066, 2016 U.S. Dist. LEXIS 145298, at *12, *13 (N.D. Ill. Oct. 20, 2016) (“[T]he Court has found no case law that CLIENTS, COUNSEL, AND SPOUSES
524 Albany Law Review [Vol. 81.2 courts have applied different theories.277 All things considered, one must return to where one started, with the Colorado Supreme Court’s conclusion that “the effect of a spouse’s presence on a communication between attorney and client is not entirely clear.”278
III. THE GAME OF TELEPHONE:279 PRIVILEGE IN RETRANSMITTED COMMUNICATIONS
The game of telephone is an apt analogy for privilege in retransmitted communications: the message is repeated in secrecy, and does not always come through unscathed. The premise in all such postures is that a validly privileged communication existed ab initio: either between attorney and client or between spouses. That communication, however, was then disclosed further, to either a spouse or counsel, respectively. Because both privileges require not only that confidentiality exist at the formation, but that it be actively maintained, such a disclosure would ordinarily waive or forfeit the underlying privilege.280 The question posed is whether the fact that a privileged communication is disclosed under the ægis of another privileged communication prevents waiver from occurring, since confidentiality is not compromised—or at least, is less compromised. Unlike the three-way conversation posture, the cases and treatises are essentially unanimous that such retransmissions preserve
would stretch the exception to reach Ms. Jasti’s role in this case [and] has found no case in this circuit where the privilege has extended to family members of parties who are primarily assisting with basic ministerial and administrative tasks[.]”). 277 See supra Table 1; compare DiPalma v. Medical Mavin, Ltd., No. 95-8094, 1998 U.S. Dist. LEXIS 1747, at *7, *9 (E.D. Pa. Feb. 10, 1998) (agency and common interest), with United States v. Rothberg, 896 F. Supp. 450, 454 n.7 (E.D. Pa. 1995) (per se) and DeGeer v. Gillis, No. 09-C-6974, 2010 U.S. Dist. LEXIS 97457, at *21 (N.D. Ill. Sept. 17, 2010) (citation omitted) (common interest), with Rao, 2016 U.S. Dist. LEXIS 145298, at *6, * 9, *10, *11, *12, *13–14 (citations omitted) (common interest and agency). 278 Wesp v. Everson, 33 P.3d 191, 199 n.13 (Colo. 2001) (en banc). 279 In the children’s game of telephone, “[s]everal children stand in a circle and, one by one, pass along a message or phrase by whispering it in their neighbor’s ear.” David A. Garvin, How the Baldrige Award Really Works, HARV. BUS. REV., Nov.–Dec. 1991, at 80, 87. For those outside the United States, the game is often elsewhere nomenclated as “Chinese whispers,” a label reflecting objectionable stereotypes. See ROSALIND BALLASTER, FABULOUS ORIENTS: FICTIONS OF THE EAST IN ENGLAND 1662–1785, at 202–03 (2005) (“The sinophobic name points to the centuries-old tradition in Europe of representing spoken Chinese as an incomprehensible and unpronounceable combination of sounds.”); Oliver Kutz et al., Chinese Whispers and Connected Alignments, 689 CEUR WORKSHOP PROCEEDINGS 25, 27 n.9 (2010) (“In the United States, ‘Telephone’ is the most common name for the game. The name ‘Chinese whispers’ reflects the former stereotype in Europe of the Chinese language as being incomprehensible. Although it is sometimes considered offensive in the US, it remains the common British English name for the game and is not generally regarded as being offensive.”). 280 See Miller, supra note 1. CLIENTS, COUNSEL, AND SPOUSES
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A. Case Studies in Retransmitted Communications
The mainstream of cases in the retransmission context involve one spouse informing the other of legal advice.282 That is, the retransmission in dispute is of an attorney-client communication within a marital communication.283 At first one might think this predominance reflects the greater utility of legal advice to couples than spouses’ conversations to counsel, and that may be the case. Or perhaps the content of discussions with counsel are more frequently germane to discovery than discussions with a spouse. Also worth recalling, however, is that spouses may independently refuse to testify against their better halves—which means that even if the underlying marital privilege is waived when a conversation is disclosed to counsel, the spouse cannot be compelled to testify, at least in a criminal case.284 On the other hand, if legal advice is disclosed to a spouse, then litigants can force the attorney to attest to the underlying conversation if the marital disclosure waived the attorney-client privilege.285 Courts therefore may also be called upon to decide such matters with greater frequency on a procedural basis.
1. Nesting Privilege Within Privilege
Once again, the readiest place to begin is with In re Sosnow, although its comments are only dictum in the telephone posture.286 One may recall that it observed that under New York law, “[w]here a client discloses a prior attorney-client communication to a spouse, the disclosure is protected by CPLR 4502,” that is, the New York statute regarding marital privilege.287 This is hardly controversial; the unenunciated question is whether the disclosure waives the underlying attorney-client privilege, allowing counsel to be forced to testify or a record of the attorney-client conversation to be subpoenaed.
281 See, e.g., Solomon v. Sci. Am., Inc., 125 F.R.D. 34, 38 (S.D.N.Y. 1988) (citations omitted); In re Estate of Pretino, 567 N.Y.S.2d 1009, 1011 (Sur. Ct. 1991) (citations omitted). 282 See e.g., Pretino, 567 N.Y.S.2d at 1010, 1011. 283 See id. at 1011. 284 See Trammel v. United States, 445 U.S. 40, 53 (1981). 285 See Miller, supra note 1. 286 See In re Sosnow, No. 312365, 2007 N.Y. Misc. LEXIS 4709, at *2, *6–7 (Sur. Ct. June 21, 2007). 287 Id. at *3 (citing In re Estate of Pretino, 567 N.Y.S.2d 1009, 1011 (Sur. Ct. 1991); Solomon v. Sci. Am., Inc., 125 F.R.D. 34, 38 (S.D.N.Y. 1988)). CLIENTS, COUNSEL, AND SPOUSES
526 Albany Law Review [Vol. 81.2
Obligingly, In re Sosnow recognized that the New York Surrogate’s Court had previously answered that very question in In re Pretino, some fifteen years before.288 In a will contest, one of the objectants— Gina DeRise, the decedent’s daughter—revealed the existence of a diary documenting her relationship with her father.289 The will’s proponent—the decedent’s wife by a second marriage—demanded its production, but the court found it enjoyed attorney-client privilege because DeRise had prepared it for her counsel in connection with the litigation.290 The proponent then argued privilege was nonetheless waived because DeRise had provided the diary to her husband and mother for review.291 The court disagreed, writing that “[w]here the disclosure of information protected by the attorney- client privilege is disclosed in a communication which is itself privileged, there is no waiver. Thus, the disclosure to a spouse with the intention of preserving confidentiality does not amount to a waiver of the attorney-client privilege.”292 The court relied squarely on Solomon v. Scientific American, a well- cited decision of the Southern District of New York.293 The plaintiff in a case for securities fraud, Dr. Arthur Solomon, had prepared a memorandum for his counsel “intended as the equivalent of an ‘intake interview,’ to apprise the lawyer of everything the client knew while it was fresh in his memory, as a basis for decision and action in furtherance of his rights.”294 It was accordingly held privileged.295 The defendants nonetheless sought production because Solomon had separately shared the memorandum with his wife.296 The court
288 See In re Sosnow, 2007 N.Y. Misc. LEXIS 4709, at *3 (citing In re Estate of Pretino, 567 N.Y.S.2d at 1011; Solomon, 125 F.R.D. at 38). 289 See Pretino, 567 N.Y.S.2d at 1010. 290 Id. at 1010–11 (citations omitted) (“Where legal advice is sought from an attorney, the communications relating to that purpose, made in confidence by the client, are permanently protected from disclosure absent a waiver and the privilege applies regardless of whether litigation was pending. The court accepts the trial testimony that the client was directed to prepare the diary in connection with the instant litigation. The diary was a privileged communication.”). 291 See id. at 1011. 292 Id. at 1011 (citing Solomon, 125 F.R.D. at 38). The court did not reach the question of whether there was a valid parent-child privilege available in the case’s circumstances. See Pretino, 567 N.Y.S.2d at 1011. Ultimately, the case was resolved on grounds of material prepared for litigation under CPLR 3101(d). See id. at 1011. 293 See Lorber v. Winston, No. 12-CV-3571 (ADS) (ETB), 2012 U.S. Dist. LEXIS 167368, at *37 (E.D.N.Y. Nov. 24, 2012) (citing Solomon, 125 F.R.D. at 38; Murray v. Bd. of Educ., 199 F.R.D. 154, 155 (S.D.N.Y. 2001)); In re Sosnow, 2007 N.Y. Misc. LEXIS 4709, at *3 (citing Solomon, 125 F.R.D. at 38; Pretino, 567 N.Y.S.2d at 1011). 294 Solomon, 125 F.R.D. at 36. 295 See id. at 37–38 (citation omitted). 296 See id. at 38. CLIENTS, COUNSEL, AND SPOUSES
2017/2018] Clients, Counsel, and Spouses 527 declined to find the privilege waived, citing McCormick, Weinstein, and the Supreme Court Standards to find that the marital disclosure was “consistent with the maintenance of the confidential attorney- client relationship” given it occurred within another privileged communication.297 The Eastern District of New York similarly cited Solomon in the rather more complex posture of Lorber v. Winston.298 Jonathan Winston was sued by Annette Lorber on claims of fraud and theft associated with Winston’s ingratiation into Lorber’s inner circle, beginning with his marriage to Lorber’s youngest daughter Eve.299 Despite having pled guilty to criminal charges involving securities fraud and money laundering, Winston persuaded the Lorber clan of his innocence and accrued substantial control over Lorber’s finances, and thereby allegedly employed his position of trust to Lorber’s detriment.300 Lorber selected as her counsel in her suit against Winston an attorney who had represented Winston previously, Ira Lee Sorkin.301 This situation became awkward when a draft memorandum on probation prepared in Winston’s criminal case was cited in the civil complaint, leading Winston to seek Sorkin’s disqualification and dismissal of the case based on abuse of his confidences with counsel.302 Much discussion ensued as to how exactly Sorkin came to possess the memorandum, and the testimony was inconsistent, particularly that of Sorkin himself.303 Winston claimed he had only ever shared it with his then-wife Eve, before contemplating any troubles in their marriage; Eve, for her part, did not recall seeing the memorandum.304 The court found that at least the memorandum enjoyed work product privilege, and that its disclosure to Winston’s wife did not forfeit that privilege because work product privilege is only waived by disclosure tending to reach an adversary (which his wife, at the time, was
297 Id. The Southern District would follow the same rule, albeit in the context of disclosing attorney-client privilege to a psychotherapist, in Murray v. Board of Education. Murray v. Bd. of Ed. of N.Y., 199 F.R.D. 154, 155 (S.D.N.Y. 2001) (citing Solomon, 125 F.R.D. at 38) (“[D]isclosure of communications protected by the attorney-client privilege within the context of [another] privilege does not constitute waiver of the attorney-client privilege.”). 298 Lorber, 2012 U.S. Dist. LEXIS 167368, at *37 (citing Murray, 199 F.R.D. at 155; Solomon, 125 F.R.D. at 38). 299 See Lorber, 2012 U.S. Dist. LEXIS 167368, at *2–3, *4–5. 300 See id. at *5–6. 301 Id. at *3. 302 See id. at *12–13. 303 Id. at *13–14 (“Attorney Sorkin has provided the Court with varying accounts of how he obtained the Probation Memo referenced in his Original Complaint.”). 304 See id. at *12. CLIENTS, COUNSEL, AND SPOUSES
528 Albany Law Review [Vol. 81.2 not).305 The court then went on to write, citing Solomon, that “[i]n addition, Winston’s disclosure of the Probation Memo to Eve is protected by the marital communications privilege, since at the time of the disclosure, their marriage was still viable. Accordingly, the disclosure of the Probation Memo is a privileged communication and no waiver is applicable.”306 Ultimately, the court denied dismissal but disqualified Sorkin, and barred any use of the memorandum.307 Moving afield from New York, the district court in Kansas joined the consensus in Hiskett v. Wal-Mart Stores.308 Quite similar in factual posture to Solomon, the plaintiff in Hiskett withheld from producing a document titled “Possible Case Intake” detailing “the events which led her to seek legal assistance” in an employment discrimination suit.309 As in Solomon, the court held such a document memorializing a client’s overtures and provision of information to counsel to obtain legal advice to be privileged.310 The court went on to address the issue of retransmission: Defendant suggests plaintiff waived the attorney-client privilege by showing the document to her husband. Neither Federal law, nor the laws of Kansas, support such suggestion. “It is not a waiver when the disclosure is made in the course of another privileged relationship, as when the client tells his wife that he told his lawyer.” Kansas recognizes the marital privilege. Federal law also recognizes the privilege. Plaintiff has shown that the marital privilege applies to her showing her husband the document in question. The court thus finds no waiver of the attorney-client privilege by such disclosure.311 Also echoing Solomon, the court relied on secondary sources to undergird its reasoning and precedents cited, quoting Wright & Graham’s Federal Practice and Procedure.312 Curiously enough, however, no citation to Solomon appeared, despite closely parallel facts strongly supporting the holding.313
305 See id. at *36–37. 306 Id. at *37. The court’s citation of two privilege-within-privilege cases strongly suggests it viewed the situation at hand similarly, even though its holding could be taken to reflect solely on the marital privilege. 307 Id. at *39. 308 Hiskett v. Wal-Mart Stores, Inc., 180 F.R.D. 403 (D. Kan. 1998). 309 Id. at 405. 310 See id.; Solomon v. Sci. Am., Inc., 125 F.R.D. 34, 37–38 (S.D.N.Y. 1988). 311 Hiskett, 189 F.R.D. at 406 (citations omitted). 312 See id. (quoting 24 CHARLES ALAN WRIGHT & KENNETH W. GRAHAM JR., FEDERAL PRACTICE AND PROCEDURE § 5507, at 581–82 (1986)); Solomon, 125 F.R.D. at 38 (citation omitted). 313 Hiskett, 180 F.R.D. at 408. CLIENTS, COUNSEL, AND SPOUSES
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A Colorado magistrate judge offered one of the more thoughtful reviews of the law regarding retransmitted communications in Kirzhner v. Silverstein.314 In a vigorously contested case, the defendants had issued subpoenas to the plaintiff’s counsel, occasioning a skeptical review of the material sought by the magistrate overseeing discovery in the case.315 Naturally, plaintiff’s counsel had withheld much of the desired material as privileged.316 Defendants focused on their “claim that one category of subpoenaed documents withheld as privileged—communications copied to Mish Vikhman, the plaintiff’s husband—certainly are not subject to the attorney-client privilege and must be produced.”317 The magistrate disagreed, quoting Hiskett in full as well as the Spahn and Epstein treatises for the proposition that subsequent disclosure of legal advice within the marital privilege works no waiver.318 Tellingly, the defense briefing could cite only mischaracterized holdings and inapposite cases lacking any intersection of the attorney-client and marital privileges in support of waiver, and the magistrate denied the motion to compel production in short order.319 The defendants filed objections to the magistrate’s rulings, but the Colorado district court agreed fully that “disclosure of documents to one’s spouse does not waive the attorney-client privilege.”320 And in the most recent case, Colorado rejoined the question of retransmitted communications in 2014 with L-3 Communications Corp. v. Jaxon Engineering & Maintenance.321 The defendants had asserted privilege over a large number of emails involving one of the
314 See Kirzhner v. Silverstein, No. 09–cv–02858-CMA-BNB, 2011 U.S. Dist. LEXIS 40467, at *15–16 (D. Colo. Apr. 5, 2011). 315 Id. at *5–7 (“We view the increasing practice of taking opposing counsel’s deposition as a negative development in the area of litigation, and one that should be employed only in limited circumstances.”). The reviewing district court was displeased with the conduct of counsel either, writing that “it was clear to me that the acrimony and incivility between counsel has been a continual blight on what should be a zealously contested but professionally litigated case.” Kirzhner v. Silverstein, 870 F. Supp. 2d 1145, 1151 (D. Colo. 2012). 316 See Kirzhner, 2011 U.S. Dist. LEXIS 40467, at *12. 317 Id. at *13–14. 318 See id. (citing Hiskett, 180 F.R.D. at 406; 1 THOMAS E. SPAHN, A PRACTITIONER’S GUIDE TO THE ATTORNEY-CLIENT PRIVILEGE AND THE WORK PRODUCT DOCTRINE 127 n.5 (2001); EPSTEIN, supra note 9, at 266 (5th ed. 2007)). 319 See Kirzhner, 2011 U.S. Dist. LEXIS 40467, at *15 (“[Defendant] mischaracterizes the holding in Mullin–Johnson, misquoting it . . . [and its] citation to Iwerks v. People, 108 Colo. 556, 120 P.2d 961 (Colo. 1941), is similarly misleading. Iwerks involved the physician-patient privilege, not the attorney client privilege, and holds that statements by a patient to a doctor in the presence of a deputy sheriff are not privileged.”). 320 Kirzhner, 870 F. Supp. 2d at 1153. 321 See L-3 Commc’ns Corp. v. Jaxon Eng’g & Maint., Inc., No. 10–cv–02868, 2014 U.S. Dist. LEXIS 103157, at *9–11 (D. Colo. July 29, 2014) (citations omitted). CLIENTS, COUNSEL, AND SPOUSES
530 Albany Law Review [Vol. 81.2 defendants, James Youngman, and his wife, Marisa Neuzil, citing Kirzhner and Hiskett.322 The court approved the application of the privilege-within-privilege doctrine to email: “if he had shared privileged information with his wife, for instance by forwarding an email to her that was otherwise protected by attorney client privilege, that forwarded email does not act as a waiver of the attorney client privilege.”323 The court found one email sent directly from Youngman to Neuzil therefore qualified for privilege, as a message “forwarded in this manner goes from one protected form, to wit: attorney client privileged, to another: spousal privilege.”324 In the overwhelming majority of emails under dispute, however, the posture was different: another Jaxon employee had been the sender to Neuzil, and thus “this final communication is from Joni White as the sender sharing an otherwise privileged communication with Marisa Neuzil who is not Joni White’s spouse, not a Jaxon employee and to whom no other claimed privilege flows.”325 The standard rule that disclosure to a third party waives privilege thus applied, and the court found that the lion’s share of the emails at issue enjoyed no attorney-client privilege.326 The court went on to find them independently protected from discovery as attorney work product.327 Finally, Wertenbaker v. Winn328 presents an upside-down posture where it was the attorney who passed on legal advice to a spouse.329 Nancy and Fredson Bowers had each prepared reciprocal wills under the legal guidance of the same attorney, Wendall Winn, Jr.330 After Nancy’s death, funds were to pass to Fredson in a trust during his lifetime, and thereafter to Nancy’s son, William Wertenbaker.331 Wertenbaker claimed that Fredson breached an agreement reached with Nancy that estate taxes would not be drawn from the trust that would ultimately pass to him; he sought to compel the discovery of communications between Fredson Bower and Winn and to depose Winn, whilst Winn asserted privilege on behalf of his client.332 The
322 See id. at *9 (citing Kirzhner, 870 F. Supp. 2d at 1153; Hiskett, 180 F.R.D. at 406). 323 L-3 Commc’ns Corp., 2014 U.S. Dist. LEXIS 10315, at *10. 324 Id. 325 Id. at *11. 326 See id. at *14–15. 327 Id. at *20–21. 328 Wertenbaker v. Winn, 30 Va. Cir. 327 (Cir. Ct. 1993). 329 See id. at 330. 330 See id. at 327, 330. 331 See id. at 327–28. 332 See id. at 328. CLIENTS, COUNSEL, AND SPOUSES
2017/2018] Clients, Counsel, and Spouses 531 court concluded that attorney-client privilege applied ab initio, but that “[t]o the extent that confidential information concerning Mr. Bowers’ estate plans was divulged to Mrs. Bowers, a stranger to the attorney-client relationship, the privilege will have been waived with regard to the disclosed information.”333 The Bowerses each had a separate engagement with Winn, and their marriage did not allow the attorney to pass secrets between them without abrogating privilege.334
2. An Historical Aside: One Spouse Acting for the Other
In a handful of arguably relevant cases, the posture involves not legal advice being retransmitted from one spouse to another, but one spouse for whatever reason acting (or purporting to act) on behalf of the other with counsel; the analysis thus turns on principles of agency.335 As such, courts reach different results based on whether the spouse communicating with counsel was truly standing in the shoes of the other.336 In some instances, the channel is a two-way street, with the non-represented spouse both transmitting and receiving messages for the represented spouse.337 These cases, however, are a century or more old, inspiring some doubt as to the applicability of their analysis.338 In the earliest, Bingham v. Walk, the Indiana Supreme Court was asked to adjudicate privilege in the familiar context of a probate matter.339 The decedent’s wife, Harriet Bingham, was sued by the administrator of the estate in connection with dissolution of a jewelry enterprise; the question went to which of the Binghams was the partner in the enterprise.340 Ultimately the questions revolved around the testimony of the attorneys who had drawn up articles of partnership.341 Over objection, the attorney testified that the wife was the partner noted in the articles, not her husband, but that all his interactions were with the decedent, Wheelock Bingham,
333 Id. at 330. 334 See id. at 331. 335 See, e.g., Bingham v. Walk, 27 N.E. 483, 485 (Ind. 1891). 336 See, e.g., id. 337 See, e.g., Leyner v. Leyner, 98 N.W. 628, 629 (Iowa 1904). 338 See Bingham, 27 N.E. at 483; Leyner, 98 N.W. at 628; see also Rafael Gely, Of Sinking and Escalating: A (Somewhat) New Look at Stare Decisis, 60 U. PITT. L. REV. 89, 138 n.303 (“It is conventionally accepted that it should be easier to overrule older cases since they represent outdated interpretations of the law.”). 339 See Bingham, 27 N.E. at 483. 340 See id. 341 See id. at 484–85. CLIENTS, COUNSEL, AND SPOUSES
532 Albany Law Review [Vol. 81.2 expressing the attorney’s view that Wheelock and not Harriet had been his client.342 Unexpectedly, given that the witness-attorney had since become a fellow judge, the supreme court did not defer to his conclusion as to the client’s identity: The facts elicited by the examination show that the conference related to the legal rights and business of Harriet A. Bingham, rather than that of her husband. The relation of attorney and client existed between her and the witness, rather than between her agent and the witness. It is not necessary that a party shall be bodily present in the office of an attorney in order to employ him. An attorney may be employed by agent, and all consultations carried on between the attorney and client through such agent. Mrs. Bingham could, if she desired, have objected to the competency of the witness, and insisted that all communication between her and her attorney was privileged, whether they were carried on through her agent, in person, or by letter.343 Presumably because Harriet Bingham was pleased to have her partnership confirmed, she made no such objection.344 Nonetheless, the opinion makes clear that the fact that the business was transacted via agent in no way impaired the attorney-client privilege.345 No particular importance, however, accrued from the fact that the agent was her husband—apparently the result would be the same for any agent.346 A parallel posture presented itself in Leyner v. Leyner, an action regarding property in a divorce ultimately appealed to the Iowa Supreme Court.347 The plaintiff sought vindication of a divorce decree awarding her certain property of her husband, but her husband’s son maintained the property was not in fact the husband’s but his own.348 To that point, her husband’s attorney gave testimony regarding conversations she had with him in the course of defending
342 See id. at 485. 343 Id. 344 See id. The objectants were the appellants, namely two children of the decedent by an earlier marriage who stood to lose should the partnership interest be judged Harriet Bingham’s rather than her husband’s. See id. at 483, 484. 345 See id. at 485. 346 The court did go on to note of the couple that “[t]here was no community of interest between the husband and wife in the transaction in which the attorney was engaged, and about which he was called to testify.” Id. This, however, serves only to establish that husband and wife were not co-clients, not to imply any allusion to the marital privilege itself. See id. 347 Leyner v. Leyner, 98 N.W. 628, 628 (Iowa 1904). 348 See id. CLIENTS, COUNSEL, AND SPOUSES
2017/2018] Clients, Counsel, and Spouses 533 against an employee’s earlier lawsuit.349 The court first noted the conversations could not be subject to marital privilege as they were between wife and lawyer, not wife and husband.350 However, as in Bingham, they were subject to attorney-client privilege: “communications by her as her husband’s agent to his attorney would be privileged as between the attorney and the husband, but in this case the husband expressly waived the privilege, and the testimony thereupon became competent.”351 In passing, the court noted that the husband was evidently selective in his waiver, having preserved privilege in certain other transactions between his lawyer and wife.352 The final case is Le Long v. Siebrecht,353 a decision of the New York Supreme Court’s Appellate Division.354 The only question on appeal was whether Henry Siebrecht, in writing a letter to his wife’s counsel regarding the property at issue, had been acting as her agent.355 As in the other cases, the court readily affirmed that “[t]he privilege also extends to a communication made by an agent, and to a letter written to the attorney by one who was the agent of the client for that purpose.”356 The court went on: The mere fact that he was her husband is not sufficient, nor is the fact that he acted as her agent in making the sale of the property. It must be shown that this letter was authorized by the then defendant in the action and was practically her communication to the attorney.357 This the court found unproven, and thus the general rule that third-party communications with counsel obtain no privilege
349 Id. at 629. 350 See id. (“The statements which the defendant sought to prove were not made in the presence of the husband, and it is not necessary to decide whether, if so made, they would be admissible as against her. As the statements were not made by plaintiff to her husband, or in his presence, there can be no contention that they were privileged communications.”). 351 Id. 352 Id. (“Had the husband waived the privilege also, as to the pleading prepared by the attorney in response to the plaintiff’s communications made in her husband’s behalf, this also would doubtless have been admissible; but, as far as the record discloses, there was no such waiver, and the action of the court in ruling out the pleading was correct.”). Id. Whether such selective waiver of privilege would be permissible today, or was properly held permissible then, is an entirely different question. 353 Le Long v. Siebrecht, 187 N.Y.S. 150 (App. Div. 1921). 354 Id. 355 See id. at 76. 356 Id. (citing State v. Loponio 88 A. 1045, 1048 (N.J. 1913); Anderson v. Bank of British Columbia, L. R. 2 Ch. D. 644, 649 (Ch. 1876)). 357 Le Long, 187 N.Y.S. at 76. CLIENTS, COUNSEL, AND SPOUSES
534 Albany Law Review [Vol. 81.2 applied.358 Importantly, the case thus expressly rejected the idea that a spouse has any special claim on agency in the context of privilege.359 A few other early cases touch tangentially on the subject of spouses representing one another in obtaining legal counsel, but offer even less detail.360 Taken together, these holdings stand for little relevant here beyond the factual posture they present. The reviewing courts deferred to the rules of agency with only passing consideration of the underlying marital confidence.361 Perhaps this is because the matters were commercial in nature and poor examples of marital intimacies, or perhaps this was because the proponent of privilege argued agency and that the court simply disintermediated the go- between spouse as irrelevant to the analysis. Moreover, the fact that two cases involved voluntary waivers by the principal obscures the analysis further.362 Although raising interesting questions regarding agency law, they offer relatively little insight on the intersection of the attorney-client and marital privileges.363
B. Accord in the Cases and Treatises Upholding Privilege
The cases thus agree that retransmission of attorney-client privilege within a privileged marital communication effects no waiver.364 For that matter, where statutes expressly address the issue, they too adopt the privilege-within-privilege theory.365 Further, although there is no shortage of treatises addressing three- way conversations, their numbers are still beggared by those commenting on the privilege-within-privilege theory for
358 See id. at 76–77 (citations omitted). 359 See id. 360 See State v. Bell, 111 S.W. 24, 27 (Mo. 1908) (“This witness was also examined at great length as to the conferences she had had with the counsel for the defendant at the residence of the latter before the trial over the objection of the defendant and his counsel. She had a perfect right to consult with her husband’s counsel for the preparation of his defense and the State had no right to make her disclose the confidential conversations between her and her counsel and the objection to this evidence should have been sustained.”); City of Indianapolis v. Scott, 72 Ind. 196, 204 (1880) (citation omitted) (“[T]he communication of Scott to [his wife’s counsel] was clearly privileged, if Scott was acting as the agent of his wife in laying the matter before the witness as a lawyer or as an agent of the firm for whom he was a clerk or agent. If Scott was not the agent of his wife, his statements were not competent evidence against her.”). 361 See Bell, 111 S.W. at 27; Scott, 72 Ind. at 204 (citation omitted). 362 See Leyner v. Leyner, 98 N.W. 628, 629 (Iowa 1904); Bingham v. Walk, 27 N.E. 483, 484– 85 (Ind. 1891). 363 See Leyner, 98 N.W. at 629; Bingham 27 N.E. at 484–85. For what it is worth, however, all three are discussed briefly in the American Law Reports’ annotation on the effect of relatives’ presence on attorney-client privilege. See Zitter, supra note 15, at 4. 364 See Leyner, 98 N.W. at 629; Bingham, 27 N.E. at 485. 365 See, e.g., CAL. EVID. CODE § 912(c) (Deering 2017). CLIENTS, COUNSEL, AND SPOUSES
2017/2018] Clients, Counsel, and Spouses 535 retransmitted communications.366 To begin again with Epstein: “Disclosure of the attorney-client privilege within another privilege context, such as the spousal privilege, psychiatrist privilege, or confessional privilege, in jurisdictions where such other privileges are recognized, does not waive the attorney-client privilege.”367 Like the cases and statutes, the treatises are broadly in accord, often using strikingly similar formulations.368 Weinstein’s Evidence Manual advises that “[a] privilege is not waived by disclosing a privileged communication during another communication that is also privileged, either under the same or a different privilege[,]”369 whilst its close cousin Weinstein’s Federal Evidence notes that “[t]here is no waiver when the disclosure is made in another communication that is itself privileged. For example, a person does not waive the lawyer- client privilege by telling a psychotherapist in confidence what the person told the lawyer.”370 Wright & Graham addresses the situation specifically, advising that “it is not a waiver when the disclosure is made in the course of another privileged relationship, as when the client tells his wife that he told his lawyer,”371 as does the New Wigmore: “If the outcome of the legal matter could affect the family unit, the spousal privilege would attach to the subsequent revelation to the husband; and that revelation would not waive the original attorney-client privilege.”372 A few texts offer additional observations in an attempt to clarify the principle, as does Mueller & Kirkpatrick in noting that “a privilege is waived if its holder ‘voluntarily discloses or consents to disclosure of any significant part of the matter of communication,’ except that the privilege is not lost ‘if the disclosure is itself a privileged communication.’”373 As attorneys are their clients’ agents, Mueller & Kirkpatrick apparently proposes that they can act within their clients’ marital privilege when it comes to the retransmission of legal advice without effecting waiver.374 The application of marital
366 See EPSTEIN, supra note 9, at 482; JACK B. WEINSTEIN & MARGARET A. BERGER, WEINSTEIN’S EVIDENCE MANUAL §18.08 (8th ed. 2007). 367 EPSTEIN, supra note 9, § 1(IV)(L). 368 Compare WEINSTEIN & BERGER, supra note 366, §18.08, with MARK S. BRODIN ET AL., WEINSTEIN’S FEDERAL EVIDENCE § 511.07 (2d ed. 2016). 369 WEINSTEIN & BERGER, supra note 366, § 18-08. 370 BRODIN ET AL., supra note 368, § 511.07. 371 24 CHARLES ALAN WRIGHT & KENNETH W. GRAHAM, JR., FEDERAL PRACTICE AND PROCEDURE § 5507, at 581–82 (1986). 372 NEW WIGMORE, supra note 9, § 6.8.1 n.84. 373 CHRISTOPHER B. MUELLER & LAIRD C. KIRKPATRICK, FEDERAL EVIDENCE UNDER THE RULES 922 (4th ed. 2013). 374 See id. at 922–23. CLIENTS, COUNSEL, AND SPOUSES
536 Albany Law Review [Vol. 81.2 privilege to a conversation lacking one of the spouses may seem contradictory, but to hold otherwise would jeopardize privilege when it is the attorney rather than spouse who shares the legal advice; though the cases to take up the question have held just that.375 At the very least, the question is not so straightforward as Mueller & Kirkpatrick imply.376 One particularly prominent authority in agreement is the Supreme Court itself, whose published evidentiary standards are of value in assessing the direction of future jurisprudence.377 Specifically, Weinstein observes that “[a]lthough Supreme Court Standards are not part of the Federal Rules of Evidence, Standard 511 retains considerable utility as a guide to the federal common law referred to in Rule 501” regarding privilege.378 And Standard 511, regarding the waiver of privilege by voluntary disclosure, teaches a rule and an exception: A person upon whom these rules confer a privilege against disclosure of the confidential matter or communication waives the privilege if he or his predecessor while holder of the privilege voluntarily discloses or consents to disclosure of any significant part of the matter or communication. This rule does not apply if the disclosure is itself a privileged communication.379 The Supreme Court Standards thus squares scrupulously with the other authorities.380 The noted scholar of attorney-client privilege Paul R. Rice is the most begrudging in his acknowledgement that the cases reliably endorse privilege in the retransmission context—but acknowledge it he does: The voluntary disclosure of confidential attorney-client communications to a spouse presents a difficult problem for courts. On the one hand, the spouse is theoretically no different than any other third party. Therefore, disclosure to them should affect a waiver. On the other hand, disclosures
375 See Wertenbaker v. Winn, 30 Va. Cir. 327, 330 (Cir. Ct. 1993). By implication, Leyner also reached the issue with similar results in finding that no marital privilege could apply when a wife spoke to her husband’s attorney, who was presumably an agent for the husband. See Leyner v. Leyner, 98 N.W. 628, 629 (Iowa 1904). 376 See infra section V.A.2 & V.B. 377 See Michael Coenen, Rules Against Rullification, 124 YALE L.J. 644, 691 (2014). 378 JACK B. WEINSTEIN & MARGARET A. BERGER, WEINSTEIN’S EVIDENCE MANUAL § 18.08 (9th ed. 2011). 379 Id. (emphasis added). 380 See, e.g., EPSTEIN, supra note 9, at 189. CLIENTS, COUNSEL, AND SPOUSES
2017/2018] Clients, Counsel, and Spouses 537
to a spouse are also protected under the marital communications privilege. This would ensure the continued protection of the communication. However, it is not apparent why this fact should compel a different result. If confidentiality is fundamental to the continuation of the attorney-client privilege protection, disclosure has breached that confidentiality, albeit on a limited basis, to the same extent that it would have had the disclosure been made to any other non-agent third party. To continue to recognize the privilege sanctions a form of “limited waiver” that courts have expressly rejected when directly confronted with the concept. Nevertheless, without persuasive authority it has been held that when one privileged communication is disclosed in the course of another privileged relationship, the initial privilege survives.381 And tellingly, the contrarian annotation in the American Law Reports, which had recognized that cases came down on both sides of the privilege question if a spouse was present in a three-way conversation, cites solely to cases upholding privilege if it was only later that “the communications were revealed to the client’s spouse.”382 Moreover, the retransmission cases rely on the broad array of treatises even more frequently than the three-way conversation cases.383 Epstein,384 Spahn,385 Wright & Graham,386 McCormick,387 Weinstein,388 and the Supreme Court Standards389 all make appearances in one case or another. Likely the variety reflects the profusion of comments on the subject and the homogeneity of the recommended rules. Future cases may likewise be expected to rely on such treatises as well as the meager precedent, though of course
381 PAUL R. RICE ET AL., ATTORNEY-CLIENT PRIVILEGE IN THE UNITED STATES § 9:27, at 83– 84 (2d ed. 1999). 382 Zitter, supra note 15, at 2. 383 See, e.g., Kirzhner v. Silverstein, 09-cv-02858-CMA-BNB, 2011 U.S. Dist. LEXIS 40467, at *13–14 (D. Colo. Apr. 5, 2011), objections sustained in part and overruled in relevant part, 870 F. Supp. 2d 1145 (D. Colo. 2012); Hiskett v. Wal-Mart Stores, Inc., 180 F.R.D. 403, 406 (D. Kan. 1998). 384 Kirzhner, 2011 U.S. Dist. LEXIS 40467, at *14 (citing EPSTEIN, supra note 9, at 266). 385 Kirzhner, 2011 U.S. Dist. LEXIS 40467, at *14. (citing SPAHN, supra note 17, at 127). 386 Hiskett, 180 F.R.D. at 406 (citing WRIGHT & GRAHAM, supra note 312, § 5507). 387 Solomon v. Sci. Am., Inc., 125 F.R.D. 34, 36, 38 (S.D.N.Y. 1988) (citing MCCORMICK, supra note 17, § 91). 388 Solomon, 125 F.R.D. at 38 (citing WEINSTEIN & BERGER, supra note 209, § 511-1). 389 Solomon, 125 F.R.D. at 38 (citing Supreme Court Standard 511- Waiver of Privilege by Voluntary Disclosure.). CLIENTS, COUNSEL, AND SPOUSES
538 Albany Law Review [Vol. 81.2 the approach of the many jurisdictions in which the question is one of first impression cannot be assured. But the singular accord amongst the cases and treatises suggests that clients, counsel, and spouses may reasonably expect that retransmitted legal conversations will remain protected so long as they remain within the protection of the marital confidence.390 One potential caveat to that general principle must be inserted. L- 3 Communications presents a frequent occurrence in modern corporate practice: legal advice subject to attorney-client privilege being circulated amongst businesspersons needful of the guidance within a company email system.391 The retransmission for which privilege was upheld was that of a husband forwarding an internal corporate document to the external email address used by his wife.392 A number of cases have raised a potential problem: when spouses communicate using a corporate email system, they may lack the requisite expectation of confidentiality because companies typically reserve the right to monitor any communications using their platforms.393 Put another way, the seemingly-private email between the spouses in L-3 Communications may not have been private at all; Jaxon overseers could have been reading every word.394 The court in L-3 Communications did not reach this issue,395 but other courts have, as will be discussed in Part IV.396
IV. WEARING TWO HATS:397 PRIVILEGE WHEN COUNSEL AND SPOUSE ARE THE SAME
Whom better than one’s most reliable confidante to call upon in the
390 See, e.g., Kirzhner, 2011 U.S. Dist. LEXIS 40467, at *13–14 (citation omitted). 391 See L-3 Commc’ns Corp. v. Jaxon Eng’g & Maint., Inc., No. 10–cv–02868-MSK-KMT, 2014 U.S. Dist. LEXIS 103157, at *3, *13 (D. Colo. July 29, 2014) (citations omitted). 392 See id. at *9–10 (citations omitted). 393 See, e.g., L-3 Commc’ns Corp. v. Jaxon Eng’g & Maint., Inc., No. 10–cv–02868-MSK-KMT, 2014 U.S. Dist. LEXIS 4364, at *22–23 (D. Colo. Jan. 12, 2014) (citation omitted), objections sustained in part and overruled in part, L-3 Commc’ns, 2014 U.S. Dist. LEXIS 103157, at *23– 25, *36, *40, *58, *60, *63, *64–65, *66–67, *68; see also infra section IV.B (discussing cases addressing such issues). 394 Cf. L-3 Commc’ns Corp., 2014 U.S. Dist. LEXIS 4364, at *22. 395 Oddly, the special master who originally reviewed the claims of privilege had enunciated some of the concerns attendant to emails on corporate systems, but reached no definitive conclusions. L-3 Commc’ns, 2014 U.S. Dist. LEXIS 103157, at *3, *5, *9. The magistrate adjudicating the objections to the special master’s report offered no reference to or reliance on corporate email issues. 396 See, e.g., Flatworld Interactives LLC v. Apple Inc., No. C-12-01956 JSW (EDL), 2013 U.S. Dist. LEXIS 180405, at *2–3 (N.D. Cal. Dec. 24, 2013) (citations omitted); infra section IV.B. 397 This felicitous idiom was famously employed by the Supreme Court in Mistretta v. United States, 488 U.S. 361 (1989), in the context of judges’ admixing judicial and administrative CLIENTS, COUNSEL, AND SPOUSES
2017/2018] Clients, Counsel, and Spouses 539 event of legal troubles? That presumably is the rhetorical question contemplated by clients who avail themselves of their spouses’ statuses as lawyers. Many such representations undoubtedly proceed efficiently and perhaps better than most by virtue of the unique trust and familiarity accruing to the attorney-client relationship. Certainly the old maxim about lawyers who represent themselves having fools for clients does not apply with equal force to those represented by their better halves,398 but clients still incur some risk when they ask their spouses to don a second hat as their advocate, because the question of which hat the spouse-cum-counsel is wearing may engender risks.399 Nonetheless, the intuition that two privileges are better than one appears generally correct in the handful of cases that addresses it squarely, so long as the professional hat is clearly distinguished.400
A. Case Studies Involving Counsel-cum-Spouse
The relevant facts as given by Knepp v. United Stone Veneer401 are somewhat unclear, bespeaking the typical problems of wearing multiple hats.402 David Barrett had been sued for workplace sexual harassment, and during the deposition of his wife Robin, an attorney, the defense counsel from Post & Schell asserted objections based on both attorney-client and marital privileges.403 Robin Barrett’s status is difficult to glean from the opinion with certainty: the court first observed that she “was retained by defense counsel for the purposes of representation at the deposition,”404 whilst later the court notes that she also “retained defense counsel in order to represent her at the deposition.”405 From these comments, it appears Robin Barrett
duties: “[T]he Constitution, at least as a per se matter, does not forbid judges to wear two hats; it merely forbids them to wear both hats at the same time.” Id. at 404. See generally Ronald J. Krotoszynski, On the Danger of Wearing Two Hats: Mistretta and Morrison Revisited, 38 WM. & MARY L. REV. 417, 417 (1997). 398 See, e.g., Drew A. Swank, Note and Comment, The Pro Se Phenomenon, 19 BYU J. PUB. L. 373, 373 & 373 n.2 (2005) (“Attorneys’ own lexicon even encourages against proceeding pro se with the adage that ‘one who is his own lawyer has a fool for a client.’”). 399 See United States v. Griffin, 440 F.3d 1138, 1144–45 (9th Cir. 2006) (citing CAL. PENAL CODE § 2601(b)); Rickley v. Goodfriend, 145 Cal. Rptr. 3d 13, 14, 19–20 (Ct. App. 2012); Gorman v. Tassajara Dev. Corp., 100 Cal. Rptr. 3d 152, 193 (Ct. App. 2009). 400 See, e.g., Flatworld, 2013 U.S. Dist. LEXIS 180405, at *2–5 (citations omitted). 401 Knepp v. United Stone Veneer, LLC., No. 4:06-CV-1018, 2007 U.S Dist. LEXIS 65423 (M.D. Pa. Sept. 5, 2007). 402 See id. at *1–2. 403 Id. at *1–2. 404 Id. at *2. 405 Id. at *4. CLIENTS, COUNSEL, AND SPOUSES
540 Albany Law Review [Vol. 81.2 may have been both a client represented by Post & Schell in her capacity as a witness as well as counsel to her husband in tandem with Post & Schell.406 Regardless of the convoluted representational posture, the court readily found attorney-client privilege applicable to discussions between Robin Barrett and Post & Schell.407 The result was quite different as to the Barretts’ spousal communications, however.408 Predictably, a key issue was what David had told Robin about his feelings for the plaintiff.409 But the answer itself had already admitted that David confessed to having “strong feelings” for the plaintiff to his wife.410 The court was briefly sidetracked by the question of who was responsible for that disclosure, but ultimately found it of no moment: one of the Barretts had already voluntarily disclosed the subject matter of the spousal communication, and thus Robin could no longer assert any privilege over it.411 The court rejected the argument that that the perfunctory reference in the answer was insufficient to constitute disclosure, and applying the subject-matter-waiver doctrine, ordered “that the privilege has been waived as to all communications on the same subject matter, which would be David Barrett’s feelings for plaintiff.”412 Confronting a different posture in United States v. Griffin, the Ninth Circuit resolved an interlocutory appeal from Robert Lee Griffin, incarcerated whilst awaiting trial on charges of racketeering and murder.413 Federal agents had seized six boxes of documents
406 Id. at *5–6 n.2 (internal citations omitted) (“Plaintiff makes the separate argument that because defense counsel now represents a third-party witness, a conflict of interest has arisen and defense counsel should be disqualified from the case. Yet, plaintiff does not elaborate on why a conflict exists. Rather, she supports this conflict argument by arguing that defense counsel ‘should not be permitted to discover relevant and necessary information from [Robin Barrett] while at the same time preventing the plaintiff from discovering said information based upon the assertion of the attorney-client relationship.’ Because plaintiff does not present any legal basis for this disqualification argument, and because we rule in the ‘Spousal Privilege’ section of this memorandum that Robin and David Barrett have waived the marital communications privilege with respect to the subject matter of David Barrett’s feelings for plaintiff, which likely solves plaintiff’s dilemma, we see no need to consider this argument any further.”). 407 See id. at *5 (“Plaintiff has conceded in her opposition brief that if Robin Barrett has retained defense counsel to represent her for the purpose of seeking a legal opinion, she has a right to assert the attorney-client privilege to protect those conversations. That is exactly what appears to have occurred here and we find that such conversations are therefore protected by the attorney-client privilege.”). 408 See id. at *16–17. 409 See id. at *6. 410 See id. at *5, *7. 411 See id. 412 Id. at *16 (citing Murray v. Gemplus Int’l, S.A., 217 F.R.D. 362, 366 (E.D. Pa. 2003)). 413 See United States v. Griffin, 440 F.3d 1138, 1140 (9th Cir. 2006). CLIENTS, COUNSEL, AND SPOUSES
2017/2018] Clients, Counsel, and Spouses 541 from his wife and attorney, Pamela, which a special master reviewed and redacted for material protected by attorney-client or work product privileges.414 Robert Griffin, however, moved to prevent the remainder being divulged, on grounds of marital privilege, but both the special master and district court denied his motion.415 The Ninth Circuit observed that if Griffin had sent a letter to his wife not containing any privileged attorney-client or work-product material, prison authorities would have had the right to read the letter[, as t]here is no free-standing marital communications privilege . . . allowing a California prisoner to send confidential letters from prison to his or her spouse.416 This resolved the case, for Griffin could then argue only that his letters were protected simply because he had addressed them to his wife as “Attorney at Law”; the court refused to countenance such a subterfuge and misuse of the attorney-client relationship.417 Pamela Griffin could only wear one hat at a time, and those letters she received as wife rather than counsel were unprotected.418 Similarly addressing the issue of multiple hats was Rickley v. Goodfriend,419 which highlighted the foundational issue of whether one spouse is representing the other at all.420 There, Rebecca Rickley and her spouse, Natasha Roit, obtained a judgment for nuisance and assorted property claims, with Roit representing the couple.421 Roit then sought attorney’s fees, but the trial court held that an attorney cannot recover fees when proceeding in propria persona.422 Looking to precedent on privilege,423 the appellate court saw the dispositive factor as “whether there was an attorney-client relationship between Roit as an attorney and Roit and her spouse Rickley as homeowners[,]”424 and found it must “determine whether Rickley
414 See id. at 1140–41. 415 Id. at 1141. 416 Id. at 1144. 417 See id. at 1144, 1145. 418 See id. at 1145 (“Under these circumstances, we hold that Griffin has no right to protect from disclosure to the government as privileged marital communications those portions of his letters to his wife/attorney that were improperly included in the envelopes on which he wrote ‘Attorney at Law.’”). 419 Rickley v. Goodfriend, 145 Cal. Rptr. 3d 13 (Ct. App. 2012). 420 See id. at 14. 421 See id. 422 See id. at 15 (“The court explained it denied Roit’s request for fees as there was ‘no binding authority’ for an award of fees in a contempt proceedings [sic] to a pro se plaintiff, whether the plaintiff-attorney was the sole plaintiff or also sued with her partner.”). 423 See id. at 19 (citations omitted). 424 Id. CLIENTS, COUNSEL, AND SPOUSES
542 Albany Law Review [Vol. 81.2 consulted Roit in her professional capacity and whether their relationship in terms of this lawsuit, was for the purposes of obtaining legal advice[,]” remanding to the trial court for that determination.425 Rickley thus stands for the real threat to clients represented by spouses that their personal relationship may weigh against finding a professional relationship as well: an earlier California appellate court facing closely parallel facts in Gorman v. Tassajara Development Corp. had allowed that “[w]e can certainly imagine cases in which a true attorney-client relationship exists between spouses[;]” but found it was not so under the facts sub judice.426
B. Flatworld: Counsel, Spouses, and Corporate Email Systems
In addition to presenting a paradigmatic multiple-hat posture, Flatworld Interactives LLC v. Apple Inc. grappled thoughtfully with the problem left unaddressed in L-3 Communications: the impact of corporate email systems on privilege.427 The court had under consideration seventeen documents referred for in camera review, and resolved essentially all under the same principles.428 Specifically, Apple sought production of documents sent by attorney John McAleese to his wife Jennifer, a co-founder of Flatworld, whilst Flatworld asserted both the attorney-client and marital privileges.429 (As an aside, the court had previously found that John McAleese violated his ethical duties to Apple in advising his wife because he was a former partner of Morgan Lewis & Bockius, Apple’s own law firm.)430 In some cases, the court simply upheld attorney-client privilege;431 in many others, however, it found no such protection because the communication was likely for business rather than legal purposes.432
425 Id. at 20. 426 Gorman v. Tassajara Dev. Corp., 100 Cal. Rptr. 3d 152, 193 (Ct. App. 2009). Unlike Rickley, the Gorman court rejected privilege because the spouses’ interests and damages were “joint and indivisible” and the husband-lawyer thus represented solely his own common interests with his wife, precluding recovery of fees. Id. 427 See Flatworld Interactives LLC v. Apple Inc., No. C-12-01956 JSW (EDL), 2013 U.S. Dist. LEXIS 180405, at *3–5 (N.D. Cal. Dec. 24, 2013). 428 See id. at *2, *4–7. 429 See id. at *2–3, *4–5 (citations omitted). 430 See Flatworld Interactives LLC v. Apple Inc., No. C-12-01956-WHO, 2013 U.S. Dist. LEXIS 111496, at *19 (N.D. Cal. Aug. 7, 2013). 431 See Flatworld, 2013 U.S. Dist. LEXIS 180405, at *6–7 (finding that documents PRIV0857/PRIV1035, JMPriv1039, PRIV1093, and PRIV1290 are privileged). 432 See id. at *2, *5–7 (documents JMPriv137A/MLB_F0000045, JMPriv141, PRIV0293, PRIV0426, MLB_F0000280, PRIV1037, PRIV0851, MLB_F000024). CLIENTS, COUNSEL, AND SPOUSES
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The court thus turned to the marital privilege claim, which Apple resisted by arguing that “there was no expectation of privacy in communications sent or received through Mr. McAleese’s law firm email account, and so the communications were not protected by the spousal privilege.”433 The framework for analysis was simply stated: In determining whether an employee’s communications transmitted or stored on a work computer are privileged, courts typically consider four factors as set forth in In re Asia Global, 322 B.R. 247, 257 (Bankr. S.D.N.Y. 2005): (1) does the company maintain a policy banning personal or other objectionable use, (2) does the company monitor the use of the employee’s computer or email, (3) do third parties have a right of access to the computer or emails, and (4) did the corporation notify the employee, or was the employee aware, of the policy.434 The court focused heavily on the second factor, noting that even if there were a policy against personal use or notification that the company could monitor the emails, there was no evidence that the company actually monitored the email system or McAleese in particular.435 The court accordingly endorsed the marital privilege for those communications that did not qualify for attorney-client privilege.436 The In re Asia Global factors are ubiquitously acknowledged as the proper framework of analysis.437 Fewer are as generous as Flatworld in their application, however; Bingham v. Baycare Health System provides a recent analysis of the divergent approaches on the factors.438 Some courts, like Flatworld, “have required some evidence
433 Flatworld, 2013 U.S. Dist. LEXIS 180405, at *4. 434 Id. at *4–5 (citing In re Asia Glob. Crossing, Ltd., 322 B.R. 247, 257 (Bankr. S.D.N.Y. 2005)). 435 See Flatworld, 2013 U.S. Dist. LEXIS 180405, at *5 (“Most significantly, even if there is a policy banning personal use of the firm email system and the firm had the right to access Mr. McAleese’s email, there has been no showing under the second factor that the firm actually monitored the email system or Mr. McAleese’s email in particular. The importance of the spousal privilege and the lack of evidence showing that the firm actually monitored the email system supports the application of privilege here.”) (citing In re High-Tech Emp. Antitrust Litig., No. 11-CV-2509-LHK-PSG, 2013 U.S. Dist. LEXIS 28623, at *7 (N.D. Cal. Feb. 28, 2013)). 436 See id. at *5–7. The court went on to address issues of subject matter waiver, but those are not particularly salient here. See id. at *8. 437 See In re Reserve Fund Sec. & Deriv. Litig., 275 F.R.D. 154, 159–60 (S.D.N.Y. 2011) (citations omitted) (collecting cases); John Gergacz, Employees’ Use of Employer Computers to Communicate with Their Own Attorneys and the Attorney-Client Privilege, 10 COMPUT. L. REV. & TECH. J. 269, 274, 276, 279 (2006) (discussing In re Asia Global). 438 See Bingham v. Baycare Health Sys., No. 8:14-cv-73-T-23JSS, 2016 U.S. Dist. LEXIS CLIENTS, COUNSEL, AND SPOUSES
544 Albany Law Review [Vol. 81.2 that the employer in fact monitored the employee’s communications[]” to vitiate privilege.439 But the lion’s share of courts are stricter, permitting the promulgation of a monitoring policy to employees or a reservation of rights to search employee email to negate the required expectation of privacy.440 Weighing the merits of the two approaches thoughtfully, Bingham sided with the majority.441 The special master in L-3 Communications itself had invoked a Fourth Circuit case reaching the same conclusion, United States v. Hamilton.442 And courts have made clear that the same considerations apply to both attorney-client and marital privileges asserted over communications on company computers.443 The use of corporate email systems therefore injects an at least potentially fatal flaw into the interlocking claims of privilege upon which protection depends; clients, counsel, and spouses are well-advised to carry on sensitive conversations elsewhere.444 In any event, as Flatworld indicates, the availability of both attorney-client and marital privileges can be a boon for those seeking to protect their confidences: if attorney-client privilege fails, the marital privilege may survive.445 The reverse is also true: the defendants in Griffin and Knepp ended up no worse than they started; their claims of marital privilege were rejected, but those of attorney-client privilege were sustained.446 All three cases thus
94590, at *8 (M.D. Fla. July 20, 2016). 439 See id. at *8. 440 See Bingham, 2016 U.S. Dist. LEXIS 94590, at *10–11 (citing Pure Power Boot Camp, Inc. v. Warrior Fitness Boot Camp, LLC, 587 F. Supp. 2d 548, 559–60 (S.D.N.Y. 2008)). 441 See Bingham, 2016 U.S. Dist. LEXIS 94590, at *11. 442 See L-3 Commc’ns Corp. v. Jaxon Eng’g & Maint., Inc., No. 10–cv–02868-MSK-KMT, 2014 U.S. Dist. LEXIS 4364, at *22 (D. Colo. Jan. 12, 2014) (citing United States v. Hamilton, 701 F.3d 404, 407–09 (4th Cir. 2012), objections sustained in part and overruled in part, 2014 U.S. Dist. LEXIS 103157, at *89 (D. Colo. July 29, 2014). 443 See e.g., Sprenger v. Rector & Bd. of Visitors of Va. Tech, No. 7:07cv502, 2008 U.S. Dist. LEXIS 47115, at *7–8 (W.D. Va. June 17, 2008) (citing Upjohn Co. v. United States, 449 U.S. 383, 389 (1981)). 444 This Article does not purport to exhaustively survey the case law where privilege and corporate email systems interact, but others have. See, e.g., Edward J. Inwinkelried, The Applicability of Privileges to Employees’ Personal E-mails: The Errors Caused by the Confusion between Privilege Confidentiality and Other Notions of Privacy, 2014 MICH. ST. L. REV. 1, 3–4 (2014); Gergacz, supra note 437, at 269–70. It could conceivably be argued that if the attorney- client privilege is held by the corporation, then its ability to monitor spousal communications implicates no more than a three-way-conversation posture, in which many courts have upheld privilege. See supra section II.C. But even if that is theoretically so, the invisible nature of the monitoring casts serious doubt on the presumptions that the married couple has any intent to involve the company in their exchange. 445 See Flatworld Interactives LLC v. Apple Inc., No. C-12-01956 JSW (EDL), 2013 U.S. Dist. LEXIS 180405, at *5 (N.D. Cal. Dec. 24, 2013). 446 See United States v. Griffin, 440 F.3d 1138, 1145 (9th Cir. 2006); Knepp v. United Stone Veneer, LLC, No. 4:06-CV-1018, 2007 U.S. Dist. LEXIS 65423 at *16–17 (M.D. Pa. Sept. 5, CLIENTS, COUNSEL, AND SPOUSES
2017/2018] Clients, Counsel, and Spouses 545 stand for the general principle that two privileges should be no worse than one, if not better.447 Yet the Ninth Circuit’s opinion in Griffin warns against any attempts to game the system by conflating two discrete privileges without foundation.448 Even Knepp carries with it the whiff of gamesmanship to the extent that David Barrett retained his wife in an attempt to bolster preexisting marital privilege claims.449 Frivolous claims may even draw sanctions.450 And Rickley and Gorman caution that commingling personal and professional relations invites the risk that if the former crowds out the latter, the attorney-client privilege will be lost.451
V. RECONCILING THE AUTHORITIES WITH THE RATIONALES FOR PRIVILEGE
Given the sparsity of reasoning on the result when the attorney- client and marital privileges intersect, there is much value in considering not what the authorities have held, but rather what the well-accepted rationales underlying the privileges would recommend in that uncertain junction. Doing so allows for the assessment of a broader body of precedent, which may ultimately prove persuasive to future courts considering the issues. Judges generally seek, after all, to pronounce a broadly cohesive and internally consistent common law, rather than carve out exception upon exception to general rules.452
A. Whys and Wherefores of Privacy and Privilege
Confidentiality is the cornerstone of privilege, both practically and theoretically.453 Not unexpectedly, therefore, the most knotty category of cases—the three-way conversation—turn on the
2007). 447 See Griffin, 440 F.3d at 1140; Flatworld, 2013 U.S. Dist. LEXIS 180405, at *5; Knepp, 2007 WL 2597936, at *16–17. 448 See Griffin, 440 F.3d at 1144. 449 See Knepp, 2007 U.S. Dist. LEXIS 65423, at *2 n.2. 450 Cf, e.g., Rice v. Lefebvre, 644 A.2d 1032, 1033 (Me. 1994) (first citing Rice v. Lefebvre, 634 A.2d 963, 964 (Me. 1993); then quoting State v. Willoughby, 532 A.2d 1020, 1022 (Me. 1987); and then citing Michaud v. City of Bangor 196 A.2d 106, 108 (Me. 1963)) (sanctioning attorney for frivolous appeal as to trial court’s denial of the asserted claims of husband-wife and lawyer-client privilege). 451 See Rickley v. Goodfriend, 145 Cal. Rptr. 3d 13, 20 (Ct. App. 2012) (citation omitted); Gorman v. Tassajara Dev. Corp., 100 Cal. Rptr. 3d 152, 193 (Ct. App. 2009) (citations omitted). 452 See, e.g., Swidler & Berlin v. United States, 524 U.S. 399, 403–06 (1998) (citations omitted). 453 See Rice, supra note 28, at 856–57. CLIENTS, COUNSEL, AND SPOUSES
546 Albany Law Review [Vol. 81.2 reasonable expectation of confidentiality as their unifying thread.454 Absent actual confidentiality, what purpose is there in artificially preventing the introduction of evidence in court?455 Such artifice flouts the law’s traditional demand for “every man’s evidence.”456 Moreover, it presents practical problems if supposedly privileged material becomes widely and publicly disseminated: as Epstein mused rhetorically, once “the cat is out of the bag,” what remains to protect?457 Yet limited disclosures solely to trusted interlocutors like attorneys and spouses are unlikely to be publicized further because both rather than just one are involved,458 but may run afoul of line- in-the-sand legal rules that do not harmonize with that reality.459 Further complicating the analysis is the fact that the rationale and contours of confidentiality differ somewhat in the attorney-client and marital privilege contexts.460
1. The Attorney-Client Privilege
Privilege law ostensibly regards absolute confidentiality between attorney and client as obligatory, with any third party vitiating the privilege.461 The American Law Reports series summarized the effect of this traditional rule in both the three-way conversation and retransmission context:
454 See supra notes 253, 256–64 and accompanying text; see, e.g., Mosteller & Broun, supra note 256, at 156. 455 See Rice, supra note 28, at 896–97 (“Without a confidentiality requirement, the client’s communication to the attorney could be known to many third parties, but still excluded from judicial proceedings. While this possibility creates the appearance of manipulated or managed justice, because decisions will be based on less than all relevant evidence, it is a problem of far less magnitude than first appears.”). 456 Jaffee v. Redmond, 518 U.S. 1, 9 (1996) (quoting United States v. Bryan, 339 U.S. 323, 331 (1950)); accord United States v. Monia, 317 U.S. 424, 432 (1943) (Frankfurter, J., dissenting) (“Duty, not privilege, lies at the core of this problem—the duty to testify, and not the privilege that relieves of such duty. In the classic phrase of Lord Chancellor Hardwicke, ‘the public has a right to every man’s evidence.’”). 457 EPSTEIN, supra note 9, at 323 (“Yet once one has waived a joint privilege by disclosing the privileged communications, what does there remain to protect? . . . . The line of cases which hold that waiver by one party to the joint privilege does not constitute [a] waiver for any other . . . can only be so as to privileges that have not been shared, since if one party to the joint privilege discloses the privileged communications[,] the cat is out of the bag.”); see Rice, supra note 28, at 896. 458 See, e.g., Pena-Rodriguez v. Colorado, 137 S. Ct. 855, 874 (2017) (Alito, J., dissenting) (citation omitted); Jaffee, 518 U.S. at 10–11 (citations omitted); Trammel v. United States, 445 U.S. 40, 42–43 (1980). 459 See, e.g., People v. Allen, 427 N.Y.S.2d 698, 699–700 (Sup. Ct. 1980) (citations omitted). 460 See Jaffee, 518 U.S. at 11 (citations omitted); Trammel, 445 U.S. at 44; Rice, supra note 28, at 858. 461 See supra notes 26, 28, 57, 58 and accompanying text; see also Rice, supra note 28, at 856–57. CLIENTS, COUNSEL, AND SPOUSES
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[C]ommunications between a client and an attorney made in the presence of third parties are usually not privileged as the presence of the third parties may undermine the confidentiality requirement for the attorney-client privilege or waive the privilege, and similarly, a client’s disclosure to a third party of a communication made during a confidential consultation with his or her attorney eliminates whatever attorney-client privilege that the communication may have originally possessed.462 Dean Wigmore has been credited with originating (or at least popularizing) this strict confidentiality requirement of privilege in his 1904 Treatise on the Anglo-American System of Evidence in Trials at Common Law.463 In earlier law, confidentiality had traditionally been a perquisite rather than a prerequisite of privilege.464 And in the years since Wigmore’s formulation, evolving doctrine has become ever more tattered by exceptions under which third parties do not abrogate privilege,465 as In re Grand Jury Subpoenas illustrated vividly.466 A regime in which attorney-client privilege can be invoked not by lawyers but instead at meetings amongst a wife, husband, and public relations agent is not one obviously enforcing constraints on third parties’ participation in legal conversations.467 But it is only the natural outcome of the accretion of challenges to the confidentiality rule for attorney-client privilege. Paul R. Rice traced these developments methodically in a turn-of- the-millennium article aptly entitled Attorney-Client Privilege: The Eroding Concept of Confidentiality Should Be Abolished.468 The earliest expansions involved the admission of express agents of the attorney or client to privileged conversation—paralegals, expert advisors, and the like.469 As corporations came to demand legal advice with increasing frequency, entire companies were brought
462 Zitter, supra note 15, at 2. 463 See Rice, supra note 28, at 859 (describing Wigmore’s imposition of a confidentially requirement as an “ipsi dixit”). 464 See Geoffrey C. Hazard Jr., An Historical Perspective on the Lawyer-Client Privilege, 66 CALIF. L. REV. 1061, 1071–72 (1978) (discussing how a client was historically entitled to confidentiality by virtue of the attorney’s office); Max Radin, The Privilege of Confidential Communication Between Lawyer and Client, 16 CALIF. L. REV. 487, 487 (1928); Rice, supra note 28, at 868–72 (discussing shift). 465 See Rice, supra note 28, at 874–88. 466 In re Grand Jury Subpoenas Dated March 24, 2003, 265 F. Supp. 2d 321, 332 (S.D.N.Y. 2003). 467 See id. 468 See Rice, supra note 28, at 868–74. 469 See id. at 874–75. CLIENTS, COUNSEL, AND SPOUSES
548 Albany Law Review [Vol. 81.2 under the umbrella of privilege under the theory that their employees were all necessary agents.470 Meanwhile, non-corporate entities also sought to cooperate, as when multiple persons want to engage counsel in the same matter, or even when parties with separate counsel wish to cooperate to present a common front in litigation; privilege was ultimately extended to embrace all those so allied under the common interest doctrine.471 Over time, the congruence of interests necessary to invoke such shared privilege has eroded further to the extent that even similar interests can suffice.472 Even when no obvious exception applied, courts began to forgive inadvertent or limited disclosures to third parties where waiver would unfairly penalize an otherwise scrupulous client.473 Faced with this teetering array of exemptions, Rice calls for the abolition of the strict confidentiality requirement for attorney-client privilege, bounding it instead by the legal purpose of the consultation.474 Instead of an immutable line in the sand, courts would consider overall fairness of privilege assertions to one’s adversary in light of “the claims being asserted by the client, the client’s use of other privileged materials, and the client’s good faith in pursuing the privilege protection.”475 Nor is Rice a vox clamantis in deserto; other authorities have discerned the same trend away from strict disallowance of third parties even in the familial context specifically, as In re Sosnow illustrated:476 For instance, it has been argued that where family members were present, especially as to those relatives who are “on the same side” as the client as to civil or criminal issues, or where the client is infirm, immature, or otherwise in need of help, the client intended the statements to remain confidential despite the presence of the relative.477 At the very least, this jurisprudential evolution suggests that sharing an attorney-client communication solely with a trusted
470 See id. at 876–77. 471 See id. at 877–80. 472 See id. at 879–80. 473 See id. at 881–88. Courts’ increasing willingness to excuse waiver may well be tied to the draconian results in a less forgiving era during which vast realms of legal discussions could be exposed based on a single mistake of law or inadvertent production. See Jared S. Sunshine, The Part & Parcel Principle: Applying the Attorney-Client Privilege to Email Attachments, 8 J. MARSHALL L.J. 47, 77 (2014). 474 See Rice, supra note 28, at 888–91. 475 Id. at 893–94. 476 See, e.g., In re Sosnow, No. 312365, 2007 N.Y. Misc. LEXIS 4709, at *1–2, *6–7 (Sur. Ct. 2007). 477 Zitter, supra note 15, at 2. CLIENTS, COUNSEL, AND SPOUSES
2017/2018] Clients, Counsel, and Spouses 549 spouse should fall leeward of the retreating vanguard of the confidentiality requirement, as some cases have recognized.478 Yet notwithstanding his strident advocacy against strict confidentiality, Rice has elsewhere criticized the preservation of privilege when spouses repeat legal confidences to one another: a disclosure is still a disclosure, however limited it may be.479 But this critique is qualified by its stated premise: “If confidentiality is fundamental to the continuation of the attorney-client privilege protection, disclosure has breached that confidentiality, albeit on a limited basis, to the same extent that it would have had the disclosure been made to any other non-agent third party.”480 And, of course, Rice does not believe that confidentiality should be fundamental to attorney-client privilege;481 under the rubric of the fairness analysis that Rice propounds, it seems self-evident that legal confidences shared only with a spouse do not compromise the adversarial process or fairness (any more than withholding the legal advice in the first place).482 Indeed, the cases and treatises that have reached the question are unanimous that repeating legal advice to a spouse works no waiver, even the recalcitrant New York.483 And if retransmitting attorney advice to a spouse preserves privilege, there can be little principled objection (pace New York) to the spouse’s participation in the original legal consultation, as the New Wigmore explains: Suppose, for instance, that after consulting with an attorney, a wife revealed the substance of the consultation to her husband. If the outcome of the legal matter could affect the family unit, the spousal privilege would attach to the subsequent revelation to the husband; and that revelation would not waive the original attorney-client privilege. If the wife could later reveal her communication with the attorney to the husband without losing the attorney-client privilege, common sense suggests that the husband’s presence during
478 See e.g., Charal v. Pierce, No. CV-81-0042, 1981 U.S. Dist. LEXIS 17497, at *28–29 (E.D.N.Y. Nov. 3, 1981) (first citing In re Horowitz, 482 F.2d 72, 81 (2d Cir. 1973); then citing United States v. Aronoff, 466 F. Supp. 855, 862 (S.D.N.Y. 1979)); In re Sosnow, 2007 N.Y. Misc. LEXIS 4709, at *6–7. 479 See RICE ET AL., supra note 381, § 9:27, at 84. 480 Id. (emphasis added). 481 See Rice, supra note 28, at 888. 482 Compare Proposed FED. R. EVID. 511, with 56 F.R.D. 244, 245 (U.S. 1973); see also EPSTEIN, supra note 9, at 482; Louisell, supra note 4, at 11314. 483 See supra section III.B. The arguable exception is the upside-down case in Wertenbaker, where the court considered whether counsel rather than a spouse could share legal advice with the other spouse. See Wertenbaker v. Winn, 30 Va. Cir. 327, 330–31 (Cir. Ct. 1993). CLIENTS, COUNSEL, AND SPOUSES
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the consultation should not prevent the attorney-client privilege from attaching in the first instance. That result is sound so long as, in general terms, the wife could foresee that the outcome of the legal matter might affect the marriage.484 The few jurisdictions that have reached both questions have agreed applying attorney-client privilege not only in retransmitted communications but also in three-way conversations.485 (New York, of course, remains in dissent unapologetically.)486 The primary residual uncertainty arises from the many jurisdictions that have not passed on attorney-client privilege in the context of spouses, and that uncertainty is inescapable until more courts adjudicate these situations.487
2. The Marital Privilege
The New Wigmore’s reservation that the matter at hand must “affect the family unit” or “affect the marriage” aptly introduces the distinct questions applicable to the marital privilege itself.488 The contours of the marital privilege are sculpted to its unique concerns.489 For example, communications that place the couple in direct conflict or “tend to destroy the marriage” are often excluded, under the theory such exchanges detract from rather than support the privilege’s purpose.490 Such subjects have included physical or sexual abuse of the couple’s children,491 and communications
484 NEW WIGMORE, supra note 9, § 6.8.1 n.84. 485 Compare In re Grand Jury Subpoenas Dated March 24, 2003, 265 F. Supp. 2d 321, 322, 32526, 331 (S.D.N.Y. 2003), with Solomon v. Sci. Am., Inc., 125 F.R.D. 34, 36 (S.D.N.Y. 1988) (citing In re Horowitz, 482 F.2d 72, 82 (2d Cir. 1973)); and then compare Lorber v. Winston, No. 12-CV-3571, 2012 U.S. Dist. LEXIS 167368, at *36–37 (E.D.N.Y. Nov. 26, 2012) (citing Sackman v. Liggett Group, 167 F.R.D. 6, 19 (E.D.N.Y. 1996); United States v. Ghavami, 882 F. Supp. 2d 532, 541 (S.D.N.Y. 2012)), with Charal v. Pierce, No. CV-81-0042, 1981 U.S. Dist. LEXIS 17497, at *2829 (E.D.N.Y. Nov. 3, 1981) (citing In re Horowitz, 482 F.2d at 862; United States v. Aronoff, 466 F. Supp. 855, 862 (S.D.N.Y. 1979)); and O’Brien v. New England Mut. Life Ins. Co., 197 P. 1100, 1102 (Kan. 1921), with Hiskett v. Wal-Mart Stores, Inc., 180 F.R.D. 403, 405 (D. Kan. 1998) (applying Kansas privilege law). 486 See infra section V.C. 487 Compare Trammel v. United States, 445 U.S. 40, 48 (1980) (“[T]he long history of the privilege suggests that it ought not to be casually cast aside [because] the privilege is one affecting marriage, home, and family relationships [areas which are] already subject to much erosion in our day.”), with People v. Lucero, 747 P.2d 660, 667 (Colo. 1987) (citation omitted) (“We . . . hold that [the statute] precludes testimony by one spouse for or against the other without the consent of the other spouse.”). 488 NEW WIGMORE, supra note 9, § 6.8.1 n.84. 489 See, e.g., Jakopich, supra note 21, at 8485. 490 See CPLR 4502(b), supra note 51, at 811 n.136. 491 See, e.g., N.Y. FAM. CT. ACT § 1046(a)(vii) (Consol. 2017); S.C. ANN. CODE § 19-11-30 (2017); United States v. Bahe, 128 F.3d 1440, 1446 (10th Cir. 1997) (citation omitted); United CLIENTS, COUNSEL, AND SPOUSES
2017/2018] Clients, Counsel, and Spouses 551 accompanying violence between the spouses themselves.492 More broadly, some courts have reasoned that “where the marriage itself is no longer viable, there can be no confidential relationship and hence, no privilege.”493 And despite the import of children to the marital unit, the Supreme Court has noted “[t]he uniform ruling that communications between husband and wife, voluntarily made in the presence of their children, old enough to comprehend them, or other members of the family within the intimacy of the family circle, are not privileged.”494 Theoretically, there should therefore be more doubt as to whether marital privilege applies when an attorney is present than whether attorney-client privilege applies when a spouse is present.495 As discussed previously, attorney-client privilege has proven marvelously flexible in admitting third parties who may be germane to the legal conversation.496 Contrarily, marital privilege entirely depends upon and demands the sanctity of privacy between the spouses.497 Unlike in the attorney-client context where the spouse’s presence may assist in (or at least not detract from) the legal communication, a lawyer’s presence would not seem to assist the spouses in communicating more intimately; it can only detract.498
States v. Allery, 526 F.2d 1362, 1367 (8th Cir. 1975). 492 See, e.g., United States v. White, 974 F.2d 1135, 1138 (9th Cir. 1992); People v. Mills, 804 N.E.2d 392, 396 (N.Y. 2003) (citations omitted); Commonwealth v. Spetzer, 813 A.2d 707, 720– 21 (Pa. 2002). 493 CPLR 4502(c), supra note 51, at 811 n.136; see, e.g., Jakopich, supra note 21, at 81; see also United States v. Singleton, 260 F.3d 1295, 1299 (11th Cir. 2001) (quoting United States v. Byrd, 750 F.2d 585, 591–94 (7th Cir. 1984)) (permanently separated couple); People v. Dudley, 248 N.E.2d 860, 863 (N.Y. 1969) (marriage enforced by coercion). 494 Wolfle v. United States, 291 U.S. 7, 17 (1934) (citing Linnell v. Linnell, 143 N.E. 813, 814 (Mass. 1924); Cowser v. State, 157 S.W. 758, 760 (Tex. Crim. App. 1913); Fuller v. Fuller, 130 S.E. 270, 271 (W. Va. 1925)). Ambiguity has persisted as to when children are old enough to comprehend their parents’ conversations, compare, e.g., People v. Sanders, 457 N.E.2d 1241, 1244 (Ill. 1983) (finding a child aged thirteen to be sufficiently cognizant), with Jacobs v. Hester, 113 Mass. 157, 160 (Mass. 1873) (first citing Dexter v. Booth, 84 Mass. 559, 559 (1861); then citing Bliss v. Franklin, 95 Mass. 244, 245 (1866)) (testimony prohibited when eldest child was eleven), and with Freeman v. Freeman, 130 N.E. 220, 222 (Mass. 1921) (citing Lyon v. Prouty, 28 N.E. 908, 909 (Mass. 1891); Commonwealth v. Teregno, 124 N.E. 889, 889 (Mass. 1919)) (stating admissibility of conversation in a nine-year-old child’s presence depends on voir dire of the child’s level of comprehension). But the principle remains that children are treated as third parties to their parents’ privilege. See Jakopich, supra note 21, at 76 495 See People v. Allen, 427 N.Y.S.2d 698, 699–701 (Sup. Ct. 1980) (citations omitted). 496 See supra section V.A.1. 497 See Stein v. Bowman, 38 U.S. 209, 223 (1839); Louisell, supra note 4, at 113 (“A marriage without the right of complete privacy of communication would necessarily be an imperfect union.”). 498 See Ronald J. Gilson & Robert H. Mnookin, Disputing Through Agents: Cooperation and Conflict Between Lawyers in Litigation, 94 COLUM. L. REV. 509, 510 n.8, 510–11, 541–43 (1994); Quintin Johnstone, Divorce: The Place of the Legal System in Dealing with Marital-Discord CLIENTS, COUNSEL, AND SPOUSES
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Stated more generally, although the professional communicational privileges499 might instrumentally allow for a third party that augments the value of the professional’s counsel,500 the marital privilege has no such instrumental goal but rather seeks to safeguard the marriage’s integrity against all outsiders.501 By these lights, the court’s ruling upholding three-way marital privilege in Charal is problematic.502 The holding ostensibly relies on a string of Supreme Court precedents to conclude that “communications between a husband and wife, when clearly intended to be confidential, are privileged and that the presence of a third person does not defeat this privilege as long as the communication was still intended to be confidential.”503 Closer scrutiny of those decisions and others, however, confirms that the desire for confidentiality is not germane to marital privilege, which is simply unavailable if a third party is present.504 Confronting a conversation held in the presence of a private stenographer in Wolfle v. United States, the Court was readily “persua[ded] that communications like the present, even though made in confidence, are not to be protected. The privilege suppresses relevant testimony and should be allowed only when it is plain that marital confidence can not otherwise reasonably be preserved. Nothing in this case suggests any such necessity.”505 The mere fact that the spouses in Charal desired or expected confidentiality despite the presence of a third party should
Cases, 31 OR. L. REV. 297, 297 (1952). 499 That is, those involving a professional: the attorney-client, physician-patient, and priest- penitent privileges. See Deprez, supra note 21, at 137. 500 See, e.g., In re Grand Jury Investigation, 918 F.2d 374, 386, 387 (3d Cir. 1990); United States v. Hudson, No. 13-20063-01 JWL, 2013 U.S. Dist. LEXIS 126655, at *7, (D. Kan. Sept. 5, 2013) (citation omitted); Kamper v. Gray, 182 F.R.D., 597, 600 n.3 (E.D. Mo. 1998) (citations omitted); Sims v. State, 311 S.E.2d 161, 165 (Ga. 1984) (citations omitted). 501 See Wolfle v. United States, 291 U.S. 7, 16–17 (1934) (citing Linnell v. Linnell, 143 N.E. 813, 814 (Mass. 1924); Cowser v. State, 157 S.W. 758, 760 (Tex. Crim. App. 1913); Fuller v. Fuller, 130 S.E. 270, 271 (W. Va. 1925)); Stein, 38 U.S. at 223; see also Louisell, supra note 4, at 113. 502 See Charal v. Pierce, No. CV-81-0042, 1981 U.S. Dist. LEXIS 17497, at *2829, *29–30 (E.D.N.Y. Nov. 3, 1981). 503 See id. at *30 (citing Trammel v. United States, 445 U.S. 40, 51 (1980); Hawkins v. United States, 358 U.S. 74, 77 (1958); Blau v. United States, 340 U.S. 332, 333 (1951); Wolfle, 291 U.S. at 17). 504 See Pereira v. United States, 347 U.S. 1, 6 (1954) (citing Blau, 340 U.S. at 333) (“Although marital communications are presumed to be confidential, that presumption may be overcome by proof of facts showing that they were not intended to be private. The presence of a third party negatives the presumption of privacy.”); Wolfle, 291 U.S. at 17 (citations omitted); see also Trammel, 445 U.S. at 51 (citations omitted) (implying that under the independent rule, which protects confidential marital communication, the presence of third party persons makes such communications not privileged). 505 Wolfle, 291 U.S. at 17. CLIENTS, COUNSEL, AND SPOUSES
2017/2018] Clients, Counsel, and Spouses 553 afford their marital privilege no more validity than the same fact in Wolfle.506 Contrariwise, courts have endorsed three-way conversations involving spouses in the context of the professional privileges.507 They have sustained the application of the physician- or psychotherapist-patient privileges if, for example, the doctor is present to facilitate communications between spouses, as in couples’ counseling.508 And they have suggested that priest-penitent privilege can apply to conversations involving husband, wife, and cleric if the couple is receiving spiritual guidance jointly.509 In such situations, the professional is vividly acting to support the couple and their marriage, and thus upholding the marital privilege in addition to the professional privilege would accord rather than conflict with its rationale.510 Attorneys’ involvement may have similarly salutary effects on the marriage at times.511 O’Brien, for example, upheld attorney-client privilege based in part on society’s interest in encouraging couples on the rocks to seek conciliation wherever they can, including via counsel.512 The Supreme Court has explained the virtue of privileging spouses from testifying: [W]idespread success achieved by courts throughout the country in conciliating family differences is a real indication that some apparently broken homes can be saved provided no unforgivable act is done by either party. Adverse testimony given in criminal proceedings would, we think, be likely to
506 See Charal, 1981 U.S. Dist. LEXIS 17497, at *29–30 (citations omitted). 507 See In re Grand Jury Investigations, 918 F.2d 374, 386 (3d Cir. 1990) (citations omitted); United States v. Hudson, No. 13-20063-01 JWL, 2013 U.S. Dist. LEXIS 126655, at *6, *7 (D. Kan. Sept. 5, 2013) (citations omitted); Kamper v. Gray, 182 F.R.D. 597, 601 (E.D. Mo. 1998); Sims v. State, 311 S.E.2d 161, 165–66 (Ga. 1984) (citations omitted). 508 See e.g., Hudson, 2013 U.S. Dist. LEXIS 126655, at *7 (citation omitted) (“[T]he psychotherapist-patient privilege may apply when a husband and wife seek mutual counseling.”); Kamper, 182 F.R.D. at 600 n.3 (citation omitted); Sims, 311 S.E.2d at 156–66 (citations omitted) (upholding three-way privilege between psychotherapist and spouses). 509 See e.g., In re Grand Jury Investigation, 918 F.2d at 386 (citations omitted) (suggesting that pastoral communications to a married couple or a group related by blood may remain privileged and expressing openness to recognizing the privilege even when unrelated third parties are present if they are integral to the pastoral counseling). 510 See id. at 387 (“As we have noted, however, family counseling does not fit neatly within the old common law model of the privilege, which assumed a ‘one-to-one’ relationship between priest and penitent.”); Sims, 311 S.E.2d at 165 (citations omitted) (“[W]e join the weight of authority from other jurisdictions in holding that there is a strong public policy in favor of preserving the confidentiality of psychiatric-patient confidences where a third party is present as a necessary or customary participant in the consultation and treatment. The public policy in favor of protecting these confidences is strengthened when the third party is the communicant’s spouse.”). 511 See, e.g., O’Brien v. New England Mut. Life Ins. Co., 197 P. 1100, 1101–02 (Kan. 1921). 512 See id. at 1102. CLIENTS, COUNSEL, AND SPOUSES
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destroy almost any marriage.513 But even in such clear cases where privilege would “affect the marriage,”514 courts have generally focused on upholding the professional privilege despite the presence the spouse, rather than the marital privilege despite the presence of the professional.515 All in all, there is good reason why cases at the intersection of the attorney-client and marital privileges typically focus on whether the attorney-client privilege can survive the involvement of the spouse.516 Although there may be cases in which the attorney’s presence more clearly serves the purposes of the marital privilege, they would seem to be rare, and require speculating as to spousal motives or plumbing the fundamentally unknowable rapport between the spouses.517 Avoiding such invasive governmental inquiries is at the heart of the marital privilege itself,518 and courts have judiciously refrained from doing so when a cogent argument for a professional privilege is available.519 As The New Wigmore’s formulation focusing on the attorney-client privilege illustrates, this approach permits secrecy to be maintained whilst avoiding undercutting the marital privilege in the selfsame process of vindicating it.520
B. The Recurring Role of Agency Analysis
It should be apparent at this point that the doctrines of agency and privilege are intertwined to a considerable degree. Rice explains: “Throughout the history of the attorney-client privilege, it has been
513 Hawkins v. United States, 358 U.S. 74, 77–78 (1958), overruled in part by Trammel v. United States, 445 U.S. 40, 53 (1980); see also Jakopich, supra note 21, at 81 (“Where the separation has not been ordered by a court decree and the confidential communication was made to the spouse in hope of reconciliation, it will probably be held to be a privileged communication.”). 514 NEW WIGMORE, supra note 9, § 6.8.1 n.84. 515 See In re Grand Jury Investigation, 918 F.2d at 385–86; see generally supra Table 1. Whilst focusing on the psychotherapist-patient privilege, Sims did observe that “the communicant may also invoke the marital privilege.” Sims, 311 S.E.2d at 165 (citation omitted). 516 See, e.g., Brownfield v. Hodous, 82 Va. Cir. 315, 316 (Cir. Ct. 2011). 517 See, e.g., O’Brien, 197 P. at 1102. 518 See Louisell, supra note 4, at 113 (“Utter freedom of marital communication from all government supervision, constraint, control or observation, save only when the communications are for an illegal purpose, is a psychological necessity for the perfect fulfillment of marriage.”); see also Jakopich, supra note 21, at 73 (“[C]ourts frown upon anything that tends to disrupt a marriage.”). 519 See, e.g., Brownfield, 82 Va. Cir. at 318; Flatworld Interactives LLC v. Apple Inc., No. C- 12-01956, 2013 U.S. Dist. LEXIS 180405, at *3 (N.D. Cal. Dec. 24, 2013) (citations omitted) (assessing marital privilege only for documents not subject to attorney-client privilege). 520 See NEW WIGMORE, supra note 9, § 6.8.1 n.84. CLIENTS, COUNSEL, AND SPOUSES
2017/2018] Clients, Counsel, and Spouses 555 universally accepted that agents of both the attorney and the client, who were vital to the legal assistance sought, could be brought within the circle of confidentiality.”521 Mueller & Kirkpatrick perfunctorily suggests the same is true for the marital privilege,522 but what precedent exists does not concur: both Wertenmaker and Leyner confronted the question of marital privilege being preserved between a wife and the husband’s attorney as his agent, and both rejected the possibility.523 As discussed previously, this likely follows from the privacy-oriented and non-instrumental basis for the marital privilege, as distinct from the attorney-client privilege.524 The Supreme Court in Wolfle did, in fairness, reserve the possibility that a third party agent might be present in cases of exacting “necessity,” but also adumbrated that such a bar will be very difficult to reach;525 its holding in Pereira is even less permissive.526 Returning to attorney-client privilege, then, how indispensable need the agent be to preserve privilege? Rice described the standard as “vital to the legal assistance,”527 whilst the seminal case United States v. Kovel held that interlocutors to privileged communications must be “necessary, or at least highly useful, for the effective consultation between the client and the lawyer which the privilege is designed to permit.”528 But as has been discussed, Charal and In re Sosnow contemplate something less than necessity (and perhaps even usefulness) to excuse an agent’s presence;529 In re Grand Jury Subpoenas would seemingly go even further in permitting a public relations firm to speak with a client under the ægis of privilege as counsel’s agent.530 Meanwhile, DiPalma and Rao insist on a more Kovel-like analysis531—if anything, Rao is even stricter, dispensing
521 Rice, supra note 28, at 874. 522 See MUELLER & KIRKPATRICK, supra note 373, at 922. 523 Wertenbaker v. Winn, 30 Va. Cir. 327, 330 (Cir. Ct. 1993); Leyner v. Leyner, 98 N.W. 628, 629 (Ia. 1904). 524 See supra section V.A.2. 525 See Wolfle v. United States, 291 U.S. 7, 16–17 (1934). 526 See Pereira v. United States, 347 U.S. 1, 6 (1954). 527 See Rice, supra note 2828, at 874. 528 United States v. Kovel, 296 F.2d 918, 922 (2d Cir. 1961); see also United States v. Mejia, 655 F.3d 126, 130 (2d Cir. 2011) (discussing the standard of necessity in context of a prisoner who tried to pass a message to his attorney by way of his sister). 529 In re Sosnow, No. 312365, 2007 N.Y. Misc. LEXIS 4709, at *7 (Sur. Ct. 2007) (citing Stroh v. General Motors Corp., 213 A.D.2d 267, 268 (1995)); Charal v. Pierce, No. CV-81-0042, 1981 U.S. Dist. LEXIS 17497, at *30 (E.D.N.Y. Nov. 3, 1981) (citing Trammel v. United States, 445 U.S. 40, 46 n.5 (1979); Hawkins v. United States, 358 U.S. 74, 75 (1959); Blau v. United States, 340 U.S. 332, 333 (1951); Wolfle, 291 U.S. at 17). 530 In re Grand Jury Subpoenas, 265 F. Supp. 2d 321, 329–30 (S.D.N.Y. 2003). 531 United States v. Kovel, 296 F.2d 918, 921–22 (2d Cir. 1961); Rao v. Bd. of Trs. of the Univ. of Ill., No. 14-cv-0066, 2016 U.S. Dist. LEXIS 145298, at *13–14 (N.D. Ill. Oct. 20, 2016); CLIENTS, COUNSEL, AND SPOUSES
556 Albany Law Review [Vol. 81.2 with the usefulness standard and insisting on necessity.532 Such divergent holdings on agency abound generally in the attorney-client privilege context.533 That the situation for spouses specifically is no different should not come as great surprise. In re Sosnow and Le Long expressly pronounce that spouses should be treated no differently than any other agent, despite the evidence to the contrary.534 Moreover, if agents are supposedly only admissible within attorney-client privilege if necessary, then how can the historical agency cases discussed in Section III.A.2 be reconciled? There, the courts assumed that any client could opt to transact their business with their counsel through the expedient of an agent, without so much as a whit of consideration as to whether such a go-between was actually necessary or even useful.535 Leyner, for example, rejected out of hand the possibility that marital privilege might apply to a conversation between a wife and her husband’s agent (an attorney), but in the same breath presumed without cavil that the husband could enjoy attorney-client privilege through his wife as agent.536 Similar presumptions featured in Bingham and Le Long.537 Even if marital privilege is less susceptible to agency than attorney-client, such unblinking acceptance seems odd in light of the Kovel standard; there seems no principled reason why an agent used to retransmit a confidence to counsel should be treated differently than one present in a three-way conversation.538 Compounding the confusion, there is little doubt that a permissible agent may be acting for either the client or counsel.539 Certainly the cases have approached the question from both sides; Sosnow, Charal, and Allen considered whether the third party was the spouse’s agent,
DiPalma v. Medical Mavin, Ltd., No. 95-8094, 1998 U.S. Dist. LEXIS 1747, at *7 (E.D. Pa. Feb. 10, 1998). 532 See Rao, 2016 U.S. Dist. LEXIS 145298, at *13–14 (N.D. Ill. Oct. 20, 2016) (citation omitted). 533 See Rice supra note 28, at 874–80; Sunshine, supra note 5, at 834–35 & nn.12–13. 534 See In re Sosnow, 2007 N.Y. Misc. LEXIS 4709, at *6–7; Le Long v. Siebrecht, 196 A.D. 74, 76 (N.Y. App. Div. 1921) (citations omitted). 535 See Bingham v. Walk, 27 N.E. 483, 485 (Ind. 1891); Leyner v. Leyner, 98 N.W. 628, 629 (Iowa 1904); Le Long, 196 A.D. at 76 (citation omitted). 536 See Leyner, 98 N.W. at 629. 537 Bingham, 27 N.E. at 485 (“An attorney may be employed by agent, and all consultation carried on between the attorney and client through such agent.”); Le Long, 196 A.D. at 76 (citations omitted) (“The privilege also extends to a communication made by an agent, and to a letter written to the attorney by one who was the agent of the client for that purpose.”). 538 Cf. NEW WIGMORE, supra note 9, § 6.8.1 n.84. 539 Rao v. Bd. of Trs. of the Univ. of Ill., No. 14-cv-0066, 2016 U.S. Dist. LEXIS 145298, at *13–14 (N.D. Ill. Oct. 20, 2016) (citations omitted). CLIENTS, COUNSEL, AND SPOUSES
2017/2018] Clients, Counsel, and Spouses 557 whilst Baeder and Gordon asked only if the third party was working for counsel.540 But it is often objectively unclear which is which: is an interpreter facilitating a legal discussion the agent of the client, counsel, or both?541 Rao illustrates the consequences of such overlap, as the court accepted that the exception to third-party waiver “applies to agents of the client, not only agents of the attorney,” and proceeded to analyze both possibilities.542 But the plaintiff’s failure to crisply distinguish the arguments for each led to his defeat; the court conceded that although “it is possible that Ms. Jasti was acting as an agent of the Plaintiff, neither the factual recitation nor the legal arguments in Plaintiff’s brief present any such assertion. Nor has Plaintiff argued that Ms. Jasti acted as an interpreter or expert that was necessary for Plaintiff’s counsel.”543 This despite the fact that the plaintiff had laid out a series of tasks that Jasti performed strikingly similar to those undertaken by a paralegal or legal clerk,544 an archetypal privilege-preserving agent.545 Given the diversity of precedent, courts clearly enjoy considerable discretion in inferring agency.546 In the cases at the intersection of the attorney-client and marital privilege, that inference often seems to serve as a doctrinal gap-filler for courts seeking to avoid inequitable disclosures of properly private conversations.547 The
540 Compare In re Sosnow, No. 312365, 2007 N.Y. Misc. LEXIS 4709, at *6–7 (Sur. Ct. 2007), and Charal v. Pierce, No. CV-81-0042, 1981 U.S. Dist. LEXIS 17497, at *29 (E.D.N.Y. Nov. 3, 1981), and People v. Allen, 427 N.Y.S.2d 698, 699 (Sup. Ct. 1980), with Baeder v. Fourth of July Celebration Comm., Inc., No. CV-04-5000893, 2007 WL 360707, at *2 (Conn. Super. Jan. 24, 2007), and State v. Gordon, 504 A.2d 1020, 1025 (Conn. 1985). 541 See, e.g., United States v. Kovel, 296 F.2d 918, 921–22 (2d Cir. 1961) (reviewing the example of an interpreter at length). 542 Rao, 2016 U.S. Dist. LEXIS 145298, at *11–14 (citing Stopka v. Am. Family Mut. Ins. Co., 816 F. Supp. 2d 516, 529 (N.D. Ill. 2011)). 543 Rao, 2016 U.S. Dist. LEXIS 145298, at *13–14. 544 Id. at *11–12 (“[The third party] has also been extremely helpful to counsel in communicating with Dr. Rao, locating and transmitting documents to his counsel, filling in factual gaps when Dr. Rao cannot recall a relevant incident, typing documents for Dr. Rao, providing information about the family’s finances, conducting internet research on issues and parties in the case, among other things.”). 545 See WIGMORE, supra note 11, § 2301; see e.g., Kovel, 296 F.2d at 921; cf. Von Bulow v. Von Bulow, 811 F.2d 136, 146–47 (2d Cir. 1987) (citations omitted) (relying on Wigmore to hold that lawyers’ clerks do not break privilege, but rejecting claim that a client’s friend was acting as a paralegal because she could not identify any attorney for whom she was working). 546 See Rao, 2016 U.S. Dist. LEXIS 145298, at *13; Charal v. Pierce, No. CV-81-0042, 1981 U.S. Dist. LEXIS 17497, at *29 (E.D.N.Y. Nov. 3, 1981); Baeder v. Fourth of July Celebration Comm., Inc., No. CV-04-5000893, 2007 WL 360707, at *2 (Conn. Super. Jan. 24, 2007) (citing State v. Gordon, 504 A.D.2d 1020, 1025 (Conn. 1985)); In re Sosnow, No. 312365, 2007 N.Y. Misc. LEXIS 4709, *4–5 (N.Y. Sur. Ct. June 21, 2007) (citations omitted); People v. Allen, 427 N.Y.S.2d 698, 699–700 (N.Y. Sup. Ct. 1980) (citations omitted). 547 Compare Charal, 1981 U.S. Dist. LEXIS 17497, at *29–30 (citations omitted) (holding that marital privilege existed even in the presence of a third-party attorney, as long as the CLIENTS, COUNSEL, AND SPOUSES
558 Albany Law Review [Vol. 81.2 courts in In re Sosnow and Charal found the spouses’ expectations of confidentiality meritorious, and thus relaxed stricter standards for agency; the courts in Allen, Gordon, Baeder, and Rao did not, and thus did not relax the stricter standards for agency.548 Likewise, the court in DiPalma could afford to apply a more stringent test for agency because it was able to reach the same result by invoking common interest549—in the same way that DeGeer sidestepped a potentially problematic assertion of marital privilege by looking to common interest.550 Even when courts rely on agency (or common interest, for that matter), therefore, they may be betraying a more fundamental proclivity for finding some way to avoid abrogating confidences shared amongst clients, counsel, and spouses; it would seem more straightforward to simply embrace the per se meshing theory.
C. Explaining the Outliers: New York and Connecticut
At last, there remain only the dissidents to account for. State courts in New York and Connecticut have repeatedly evinced hostility to the preservation of privilege when the attorney-client and marital privileges intersect.551 There is good reason to believe their skepticism derives from public policy rather than the happenstance of the cases that have come before them.552 Whilst other jurisdictions have occasionally denied privilege in three-way conversations, such holdings can be more readily explained from the factual or procedural posture.553 In Rhodes, for example, the Minnesota Supreme Court confronted adversative facts: the conversation centered around the
communication with the attorney was still intended to be confidential), with Baeder, 2007 WL 360707, at *2 (citations omitted) (holding that marital privilege did not apply because the defendant’s husband was not acting as the defendant’s attorney’s assistant), and Allen, 427 N.Y.S.2d at 699–700 (citations omitted) (“[C]ommunications between husband and wife made in the known presence of a third person are not confidential and, hence, are not privileged.”). 548 Compare Sosnow, 2007 N.Y. Misc. LEXIS 4709, at *4–5 (citations omitted), and Charal 1981 U.S. Dist. LEXIS 17497, at *29, with Allen, 427 N.Y.S. at 699–700 (citations omitted), and Gordon, 504 A.D.2d at 1025, and Baeder, 2007 WL 360707, at *2, and Rao, 2016 U.S. Dist. LEXIS 145298, at *13. Of course, the first three of these derive from New York and Connecticut, whose analyses may be shaded by their public policy. See infra section V.C. 549 See DiPalma v. Medical Mavin, Ltd., No. 95-8094, 1998 WL 123009, at *2–3 (E.D. Pa. Feb. 9, 1998) (citations omitted). 550 DeGeer v. Gillis, No. 09-C-6974, 2010 WL 3732132, at *7 (N.D. Ill. Sept. 17, 2010). 551 See supra section II.A.1. It appears wholly coincidental that these two outlier states, New York and Connecticut, comprise two-thirds of the Second Circuit’s jurisdiction; there is no case on point from Vermont. 552 See, e.g., State v. Christian, 841 A.2d 1158, 1171 n.7 (Conn. 2004) (citations omitted). 553 See, e.g., Gordon, 504 A.D.2d at 1023; Baeder, 2007 WL 360707, at *1; Allen, 427 N.Y.S. at 699. CLIENTS, COUNSEL, AND SPOUSES
2017/2018] Clients, Counsel, and Spouses 559 couple’s divorce, and the question arose as the husband stood accused of murdering his wife.554 Or in Wesp, there was no procedural reason for the Colorado Supreme Court to even contemplate whether privilege might exist because neither party suggested as much.555 As discussed, New York and Connecticut, by contrast, may with greater predictability rule against privilege. Most obviously, New York has expressly declared itself to be an outlier.556 In re Sosnow admitted that “other states” recognized that attorney-client privilege would not be abrogated by the presence of a spouse before stating tersely that “[t]his is not the law in New York.”557 The foremost treatise on New York law, Weinstein-Korn- Miller, wholeheartedly agrees, declaring that although [t]he question of whether a third person is unnecessarily present or is a joint-client is often a close question of fact for the court [, w]hen the third person present is the husband or wife of the client, neither the spousal nor attorney-client privilege protects the conversation: the attorney’s presence prevents the spouses from speaking in confidence and the spouse’s presence prevents the attorney and client from talking confidentially.558 Given such firmness, it would be unwise to rely overmuch on In re Katz, where the surrogate’s court appeared to adopt a per se approach to uphold attorney-client privilege when a spouse is present.559 The opinion is dated, the facts are peculiar given the wife’s position as both business partner and executrix, the holding was conditional for lack of the relevant facts, and as Weinstein-Korn-Miller advises primly, the “opinion may be garbled.”560 Weinstein-Korn-Miller’s view of attorney-client privilege, moreover, adheres to New York’s parsimonious approach to privilege generally.561 Only recently, its highest court rejected an attempt by a lower appellate panel to expand multi-party attorney-client privilege to bring New York’s approach in line with that of most other states and federal jurisdictions.562 A spirited dissent observed that
554 State v. Rhodes, 627 N.W.2d 74, 85 (Minn. 2001) (citation omitted). 555 Wesp v. Everson, 33 P.3d 191, 199 n.13 (Colo. 2001) (en banc). 556 See In re Sosnow, No. 312365, 2007 N.Y. Misc. LEXIS 4709, at *2–3 (Sur. Ct. 2007) (citations omitted). 557 Id. at *3 (citations omitted). 558 WEINSTEIN-KORN-MILLER, supra note 17, ¶ 4503.16. 559 See In re Estate of Katz, 81 N.Y.S.2d 21, 22 (Sur. Ct. 1948). 560 See id.; WEINSTEIN-KORN-MILLER, supra note 17, ¶ 4503.16 n.7. 561 See Sosnow, 2007 N.Y. Misc. LEXIS 4709, at *3 (citations omitted). 562 See Ambac Assur. Corp. v. Countrywide Home Loans, Inc., 27 N.Y.3d 616, 631 (2016) CLIENTS, COUNSEL, AND SPOUSES
560 Albany Law Review [Vol. 81.2 the majority’s approach diverged from “numerous federal and state courts” that allowed for the loosening of confidentiality requirements where the parties shared a common interest in the privileged consultation.563 And true to form, New York also imposes restrictions on the marital privilege, protecting only communications “induced by the marital relation and prompted by the affection, confidence and loyalty engendered by such relationship.”564 It is worth reiterating, however, that despite its minimalist predilections, New York has been clear in its recognition of privilege in retransmitted communications, apparently resting on statutory interpretation.565 Connecticut, meanwhile, is unique amongst the fifty states in that its legislature never codified a marital communicational privilege.566 Indeed, for the vast majority of its history, Connecticut had never explicitly recognized the privilege.567 It was not until 1986 that the Connecticut Supreme Court in State v. Littlejohn intimated acceptance of the marital communicational privilege as a matter of common law, seeking to achieve some degree of certainty given earlier decisions pondering whether such a privilege was cognizable.568 Even after Littlejohn, sufficient doubt remained regarding its ambiguous dictum for the high court to revisit the issue in 2004 with State v. Christian.569 There, at long last, the court expressly adopted the marital communicational privilege as a matter of common law, commenting that the holding “aligns us with every other jurisdiction in the country.”570 But absent the legislative judgment that marital relations are to enjoy the highest form of protection, the reasoning expressed in Brownfield and the treatises loses some cogency.571 Judicial adoption
(citations omitted). 563 See id. at 638 (Rivera, J., dissenting). 564 People v. Mills, 804 N.E.2d 392, 396 (N.Y. 2003) (quoting Poppe v. Poppe, 144 N.E.2d 72, 73 (N.Y. 1957)). 565 See, e.g., In re Pretino, 567 N.Y.S.2d 1009, 1011–12 (Sur. Ct. 1991) (citations omitted). 566 State v. Christian, 841 A.2d 1158, 1173–74 (Conn. 2004). (“Connecticut is unique among its sister states, which each have a statute or a rule of evidence expressly providing for the privilege.”). 567 See State v. Littlejohn, 508 A.2d 1376, 1385 (Conn. 1986) (“We have never explicitly held that confidential communications between husband and wife are privileged under the common law of this jurisdiction”); see also Christian, 841 A.2d at 1169 (citation omitted). 568 See Littlejohn, 508 A.2d at 1385 (“Such a privilege commends itself to judicial acceptance.”). 569 See Christian, 841 A.2d at 1169 (citation omitted) (“[T]he defendant argued that, although no Connecticut case expressly has recognized the existence of the marital communications privilege, the dictum of this court’s opinion in [State v. Littlejohn], indicates that the privilege ‘has seemingly been accepted’ by the courts of this state.”). 570 Id. at 1173. 571 See Brownfield v. Hodous, 82 Va. Cir. 315, 318 (Cir. Ct. 2011) (citation omitted); CLIENTS, COUNSEL, AND SPOUSES
2017/2018] Clients, Counsel, and Spouses 561 is necessarily a weaker statement of endorsement than the action of the people’s elected representatives.572 Moreover, the fact that Connecticut lawmakers demurred from legislating the privilege may imply that they find such protections imprudent; the state argued as much in Christian, pleading with the court not to recognize the marital communications privilege because “the cost of recognizing the common law . . . privilege exceeds its dubious benefits.” Rather, the state contends, the legislature has enacted “a reasonable compromise” by codifying the separate and distinct adverse marital testimonial privilege.573 Given such history, one could readily conclude that Connecticut lacks a marital privilege that “protects the communications in the same way as the attorney-client privilege[,]”574 as the latter is protected by statute whilst the former is protected only by common law, perhaps athwart the legislature’s policy goals.575 Even under the Restatement’s and Brownfield’s generous view of the rationale for meshing attorney-client and marital privilege, therefore, Connecticut’s refusal to recognize such a per se theory is doctrinally coherent.576 Returning to the cases, one of the Connecticut three-way conversation holdings predates Christian, meaning it could effectively only uphold privilege under principles of agency or common interest.577 And it is worth noting that both of the Connecticut cases assessed not whether the spouse was an agent of the client, but rather an agent of the attorney—and answered in the
RESTATEMENT, supra note 184, § 71 cmt. b; see also NEW WIGMORE, supra note 9, § 6.8.1 & nn.83–84 (“There is a separate communications privilege for the spousal relationship. Given the existence of that privilege, there is an inference of intent to maintain confidentiality notwithstanding the other spouse’s presence.”); EPSTEIN, supra note 9, at 266 (“If the significant other is a spouse, the marital privilege extends to protect the communication with the attorney.”). 572 See State v. James, 560 A.2d 426, 430 (Conn. 1989) (holding that the legislature has the power to overrule judicially created common law rules of evidence including privilege); see also Christian, 841 A.2d. at 1173–74 (juxtaposing situations where “marital communications privilege is a product of legislative fiat” and those arising under common law); cf. Jaffee v. Redmond, 518 U.S. 1, 13 (1996) (“That rule is properly respectful of the States and at the same time reflects the fact that once a state legislature has enacted a privilege there is no longer an opportunity for common-law creation of the protection.”). 573 Christian, 841 A.2d. at 1170 (citation omitted). 574 RESTATEMENT, supra note 184, § 71 cmt. b; accord Brownfield, 82 Va. Cir. at 316. 575 See Christian, 841 A.2d. at 1173–74. 576 See Brownfield, 82 Va. Cir. at 318 (citation omitted); RESTATEMENT, supra note 184, § 71 cmt. b. 577 See State v. Gordon, 504 A.2d 1020, 1025 (Conn. 1985) (citations omitted). CLIENTS, COUNSEL, AND SPOUSES
562 Albany Law Review [Vol. 81.2 negative.578 Gordon, in fact, rejected privilege because the client, rather than the attorney, had insisted on deeply involving his wife in the case—strengthening the arguments for viewing her as her husband’s agent, whilst weakening the case she was working for counsel.579 It is odd, to say the least, that the court did not consider the former possibility under those facts. McCormick, for one, doubts this upside-down approach is correct.580 In any event, however, the resort to agency theory in the first place confirms that Connecticut has thus far declined to adopt a more lenient per se meshing theory.581 And lacking any case on point for retransmitted communications, there remains the risk that Connecticut’s unique history and policy on privilege would militate against recognition there as well.582
CONCLUSION
The protections of the attorney-client and marital privileges are sacrosanct at law, overriding even the most compelling justifications.583 To revisit the recent opinion by Justice Alito:584 Suppose that a prosecution witness gives devastating but false testimony against a defendant, and suppose that the witness’s motivation is racial bias. Suppose that the witness admits this to his attorney, his spouse, and a member of the clergy. Suppose that the defendant, threatened with conviction for a serious crime and a lengthy term of imprisonment, seeks to compel the attorney, the spouse, or the member of the clergy to testify about the witness’s admissions. Even though the constitutional rights of the defendant hang
578 See Gordon, 504 A.2d at 1025; Baeder v. Fourth of July Celebration Committee, Inc., No, CV-04-5000893, 2007 Conn. Super. LEXIS 204, at *5–6 (Super. Ct. Jan. 24, 2007). 579 Gordon, 504 A.2d at 1025. 580 MCCORMICK, supra note 17, § 91 at 559 n.15. 581 See Gordon, 504 A.2d at 1025 (citation omitted); contra State v. Christian, 841 A.2d 1158, 1173–74 (Conn. 2004) (citations omitted). 582 See, e.g., Christian, 841 A.2d at 1176; State v. Littlejohn, 508 A.2d 1376, 1385–86 (Conn. 1986); Gordon, 504 A.2d at 1024. 583 See Louisell, supra note 4, at 113–14 (“If it will help clarify thinking about the nature of the privileges, let us by all means use terminology appropriate to describe protection for significant human freedoms. The privileges are guarantees for the benefit of their holders; they exist from the moment of their inception in the confidential communication; they normally survive all the vicissitudes of life save only waiver by the owner; they survive even his death. The law will protect them at all stages of their existence. If they are in the form of written documents, the law will protect them against theft, trespass, subpoena, or other infringement; if oral, from all types of seizure to which such are susceptible: coercion, physical or psychological, trickery or fraud.”). 584 See Pena-Rodriguez v. Colorado, 137 S. Ct. 855, 874–75 (2017) (Alito, J., dissenting) (citing Trammel v. United States, 445 U.S. 40, 51 (1980)). CLIENTS, COUNSEL, AND SPOUSES
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in the balance, the defendant’s efforts to obtain the testimony would fail.585 Given such unflinching commitment to these protections—even in the face of a grave miscarriage of justice586— it would be flippant and counterproductive for privilege to rise and fall based on logistical minutiæ when two such protections intersect.587 Kovel said as much in promulgating an exemption allowing certain third parties to participate in privileged conversations: “Laymen consulting lawyers should not be expected to anticipate niceties perceptible only to judges—and not even to all of them.”588 The law may require clear lines, but those lines should be drawn in a fashion that respects their underlying rationale.589 If one of society’s paramount interests is to safeguard confidences between clients and their counsel and spouses, those interests are little lessened when all three are involved.590 Notionally, both of the line-in-the-sand approaches benefit from simplicity: to either uphold or abrogate privilege categorically when more than one species is at issue would present a straightforward rule for courts. In practice, however, the abrogation approach is anything but simple: absent a per se three-way privilege, courts must assess whether principles of agency or common interest may yet save a conversation from disclosure. And some courts’ tentative willingness to relax the usual standards in the context of three-way conversations involving spouses or even relatives generally, perhaps out of an unspoken deference to connubial or familial intimacy, only
585 Pena-Rodriguez, 137 S. Ct. at 875; but see Jakopich, supra note 21, at 86 (“The paramount consideration must be justice for all parties involved, not the blind application of a privilege.”). 586 Cf., e.g., Jaffee v. Redmond, 518 U.S. 1, 11 (1996) (relying on the examples of attorney- client and marital privilege to hold that psychotherapists enjoy privilege with patients to achieve a “transcendent[ly]” important public good); id. at 19 (Scalia, J., dissenting) (citing Trammel, 445 U.S. at 53; United States v. Nixon, 418 U.S. 683, 705 (1974); Wolfle v. United States, 291 U.S. 7, 14 (1934)) (“[The victim of upholding such a privilege] is more likely to be some individual who is prevented from proving a valid claim—or (worse still) prevented from establishing a valid defense.”); Jakopich, supra note 21, at 86. 587 See Jaffee, 518 U.S. at 18 (quoting Upjohn Co. v. United States, 449 U.S. 383, 393 (1981)) (“Making the promise of confidentiality contingent upon a trial judge’s later evaluation . . . would eviscerate the effectiveness of the privilege [because] if the purpose of the privilege is to be served, the participants in the confidential conversation ‘must be able to predict with some degree of certainty whether particular discussions will be protected. An uncertain privilege, or one which purports to be certain but results in widely varying applications by the courts, is little better than no privilege at all.’”). 588 United States v. Kovel, 296 F.2d 918, 922 (2d Cir. 1961). 589 Jaffee, 518 U.S. at 17–18 (quoting Upjohn, 449 U.S. at 393). 590 Jaffee, 518 U.S. at 11 (quoting Upjohn, 449 U.S. at 389); Trammel v. United States, 445 U.S. 40, 53 (1980); see Pena-Rodriguez, 137 S. Ct. at 874 (citing Trammel, 445 U.S. at 51); Louisell, supra note 4, at 113. But see Jakopich, supra note 21, at 86 (arguing that marital privilege serves little value and should be constrained); Deprez, supra note 21, at 134–35 (arguing the same principles articulated by Jakopich). CLIENTS, COUNSEL, AND SPOUSES
564 Albany Law Review [Vol. 81.2 makes outcomes more unpredictable and such assessments more challenging.591 By contrast, a simple per se rule has not occasioned such searching examinations, as cases devoting only a single sentence to the principle testify.592 Moreover, the per se rule for three-way conversations follows logically from the unanimous view that attorney-client advice later relayed to a spouse remains privileged.593 Such consistency of reasoning and determinacy of outcome is critical to a functional privilege doctrine.594 The per se rule that there is no vitiation or waiver when the attorney-client and marital privileges intersect (whether in a three- way conversation or retransmission posture) is manifestly the better approach, as the striking consensus in the treatises evinces. Moreover, by focusing on upholding the more flexible attorney-client privilege, courts can and have avoided the more difficult considerations in the marital privilege. It is to be hoped that as more jurisdictions confront these questions, they fall into line with the greater majority of cases, the secondary authorities, and the normative rationales underlying privilege itself. Until then, however, counsel must be mindful to fully advise their clients of the potential risks of involving their spouses in legal matters.
591 See, e.g., Charal v. Pierce, No. CV-81-0042, 1981 U.S. Dist. LEXIS 17497, at *29–30 (E.D.N.Y. Nov. 3, 1981) (citations omitted); In re Sosnow, No. 312365, 2007 N.Y. Misc. LEXIS 4709, at *6–7 (Sur. Ct. 2007). 592 See, e.g., In re Grand Jury Subpoenas Dated March 24, 2003, 265 F. Supp. 2d 321, 332 n.51 (S.D.N.Y. 2003) (citations omitted); United States v. Rothberg, 896 F. Supp. 450, 454 n.7 (E.D. Pa. 1995). 593 See NEW WIGMORE, supra note 372, § 6.8.1 n.84; RICE ET AL., supra note 381, § 9:27, at 84. 594 See Swidler & Berlin v. United States, 524 U.S. 399, 408–09 (1998) (citation omitted); Jaffee, 518 U.S. at 17–18 (1996) (citation omitted).