Many clients wish to bring a friend or a relative with them when they meet with their lawyer, particularly for an initial consultation. Having a friend or a relative with you can be helpful to provide emotional and moral support. I frequently hear from potential clients at the first consultation that they brought a third party along because he/she is concerned being unable to recall details regarding the marriage, the relationship, assets, finances or the incident (in the case of domestic violence) which brought the client to me. However, it has been my experience that, in most cases, except in cases of mental incapacity, potential clients are in fact able to recall sufficient details for the attorney to assess the case and make recommendations. A good family law attorney will ask the right questions and ask them in a manner that will comfort the client and elicit the information necessary to analyze the case. You should walk away from a consultation feeling as if you had been heard and are now armed with information and direction. If the attorney with whom you have met for a consultation has not made you feel comfortable enough to speak freely, has not sufficiently made inquiries, has not listened carefully and compassionately and has not given you constructive, concrete feedback, perhaps that attorney is not right for you.
It is not favorable to have a third party accompany a client or potential client during a consultation or an attorney meeting as often times this will inhibit a client or potential client from relaying to the attorney essential information due to embarrassment or due to the companion having essentially become the voice of the client/potential client.
Moreover, it is important for the client or potential client to understand that the presence of third party during an attorney/client conference vitiates the attorney/client privilege which is governed by our Rules of Evidence, NJSA 2A:84A-20. The attorney/client privilege protects the client from the attorney disclosing any communication during the course of the representation or consultation.
An exception to the attorney/client privilege is found in our Rules which provide that “a communication made in the course of relationship to a lawyer and a client shall be presumed to have been made in professional confidence unless knowingly made within the hearing of some person whose presence nullified the privilege.”
The attorney prefers to be in a position to fulfill his duty to protect the client’s confidences and to extract important information necessary to best represent the client’s interests. The attorney, under our Rules of Professional Conduct, RPC 1.6a, requires the attorney to maintain confidentiality of client information except limited circumstances designed to protect the client or third parties from bodily or financial harm. The purpose of confidentiality rules is to encourage open communication between the client and the attorney and encourage people to seek legal assistance.
Potential clients and clients should preserve the concept of confidentiality and derive the benefit of feeling protected by it so that he/she can feel free to speak openly and frankly to his or her attorney. Having a third present may compromise that protection. Note, as well, that even if a third party pays an attorney’s consultation fee or retainer for representation, the attorney/client relationship exists only between the client and the attorney, not between the benefactor or guarantor of the fee and therefore, attorneys should obtain consent from the client to discuss any aspect of his or her case with that third party before doing so.
Linda Mainenti-Walsh is of counsel with the Denville, NJ firm of Einhorn, Harris, Ascher, Barbarito & Frost, P.C. She practices in the area of family law, including matrimonial, custody, domestic violence, and non-dissolution matters. She can be reached at (973) 627-7300. View her firm’s Divorce Magazine profile.