Date22 December 2017
AuthorSunshine, Jared S.


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, longestablished 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) 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 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 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-a-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)

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)


    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 maintained (28) and only communications for a legal 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 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 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...

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