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Clients, Counsel, and Spouses 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 489 CLIENTS, COUNSEL, AND SPOUSES 490 Albany Law Review [Vol. 81.2 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.
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