Towards a Parent-inclusive Attorney-client Privilege

• Publication year: 2019

Towards a Parent-Inclusive Attorney-Client Privilege

Sande L. Buhai
Loyola Law School, Los Angeles

TOWARD A PARENT-INCLUSIVE ATTORNEY-CLIENT PRIVILEGE

Sande L. Buhai^*

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Few state or federal courts recognize a parent-child testimonial or communication privilege. Yet, courts recognize privileges between spouses, clergy-penitent, and therapist-patient. Supported by the Wigmore test that legitimized these privileges, this paper argues that the attorney-client privilege should still exist even if (1) a client's parent is included in an attorney-client meeting in an advisory capacity; (2) the child discloses contents of the attorney-client communications to the child's parent; or (3) the child discusses the contents of the attorney-client communications with the child's parent.

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Table of Contents

I. Introduction..........................................................................994

II. Communication Privileges Under the Wigmore Test ... 997

A. A BRIEF HISTORY............................................................ 997
B. MARITAL PRIVILEGES.....................................................1000

1. Spousal Testimonial Privilege................................1001
2. Spousal Communications Privilege.......................1002

C. CLERGY-PENITENT PRIVILEGE.......................................1003
D. THERAPIST-PATIENT PRIVILEGE....................................1005
E. PARENT-CHILD PRIVILEGE.............................................1006

1. Current Law...........................................................1006
2. Wigmore test...........................................................1010

F. ATTORNEY-CLIENT PRIVILEGE.......................................1012

III. The Problem of Waiver....................................................1013

A. WAIVER OF COMMUNICATION PRIVILEGES GENERALLY.. 1013
B. WAIVER IN THE ATTORNEY-CLIENT CONTEXT.................1015

IV. A Proposed Parent-Inclusive Attorney-Client Privilege.........................................................................1016

A. ROLE OF ATTORNEYS IN THE U.S. LEGAL SYSTEM, AND THE POSSIBLE ROLE OF PARENTS........................................1016
B. MODERN EXTENDED ADOLESCENCE...............................1019

1. The Age of Legal Majority......................................1019
2. The Neuroscience of Maturity.................................1020
3. The Sociology of Maturity.......................................1021

C. THE CASE FOR A PARENT-INCLUSIVE ATTORNEY-CLIENT PRIVILEGE...................................................................1026

1. Rule applied to minor children ..............................1026
2. Rule applied to non-minor children .......................1027

V. Parent as Agent..................................................................1031

A. SUPPORT FOR A PARENT-AS-AGENT SOLUTION...............1031
B. PROBLEMS WITH A PARENT-AS-AGENT SOLUTION..........1034

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1. Judicial Reluctance to Treat Parents as Agents of Adult Children......................................................1034
2. Potential Overbreadth: The Right of Principals to Choose Their Own Agents.....................................1035
3. Potential Under breadth: The Subsequent Discussion Problem...............................................1036
4. Collateral Consequences of Modifying Existing Agency Law...........................................................1036

VI. Conclusion.........................................................................1038

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I. Introduction

Jane, an eighteen-year-old college freshman who has never previously been away from home, is sexually assaulted in her dorm. When she reports the assault to law enforcement, she is interrogated for three hours about her past sexual history and then released. She calls her mom, sobbing. Her mom drives all night to be with her daughter. The next day, they retain an attorney. "Sorry," he says, "you cannot sit in on my meeting with your daughter. For me to allow you to do so would waive the attorney-client privilege. What's more, she cannot talk with you about anything she and I discuss at that meeting. Doing so might also waive the privilege." Jane is devastated yet again. She has always relied on her mother's counsel and support, and has never needed it more than today. She must now face the ordeal of a hostile legal system alone.

Modern American law recognizes several types of privileged communications: attorney-client, marital, clergy-penitent, physician-patient, psychotherapist-patient, and, in a few states, parent and minor child.¹ Each form of privilege is an exception to the principle famously articulated by the Duke of Argyll in 1742 and affirmed by the United States Supreme Court in United States v. Bryan—"the public has a claim to every man's evidence" to determine the truth.² Exceptions are justified and their scope determined by what has come to be known as the Wigmore test, under which communications must meet four conditions to be considered privileged:

(1) the communications must originate in a confidence that they will not be disclosed;
(2) this element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties;
(3) the relation must be one which in the opinion of the community ought to be sedulously fostered; and

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(4) the injury that would inure to the relation by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of litigation.³

Citing the Wigmore test, commentators have repeatedly urged adoption of parent-child privileges similar to the privileges that protect communications between spouses,⁴ for the most part to no avail.⁵ In 2005, Congress considered H.R. 3433, the Parent-Child

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Privilege Act,⁶ which proposed to amend Article V of the Federal Rules of Evidence by adding a new Rule 502. This new evidence rule would have recognized both an adverse testimonial privilege and a confidential communications privilege between parent and child, regardless of whether the child had reached the age of majority.⁷ Viewed as overbroad,⁸ the proposed Act died in the House.

This paper proposes a more narrowly tailored solution than what was proposed in H.R. 3433 or by past commentators. specifically, this paper proposes an expansion of the Wigmore test in three narrow circumstances. Attorney-client privilege should still exist if (1) a client's parent is included in an attorney-client meeting in an advisory capacity; (2) the child discloses contents of the attorney-client communications to the child's parent; or (3) the child discusses the contents of the attorney-client communications with the child's parent. The attorney-client privilege should not be deemed waived in any of the three situations above, so long as the relevant communications are not disclosed to anyone else.

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Unlike H.R. 3433, this paper does not propose a general testimonial privilege or confidential-communications privilege between parent and child. Nor does it advocate a reciprocal child-inclusive privilege, which might allow children to become privy to their parents' attorney-client confidential matters. This paper's proposal is designed solely to allow parents to help their young adult children navigate a legal system that can intimidate the best of us. In jurisdictions that have chosen or ultimately choose to adopt broader parent-child privileges, the proposed rule complements such privileges. Nevertheless, recognition of a general parent-child privilege is not a prerequisite to adoption of the rule proposed here.

A parent-inclusive attorney-client privilege not restricted to children of a particular age would allow parents to assist their adult children of whatever age who are not capable of navigating the legal system by themselves. should an age limitation make the proposal more acceptable, however, modern developmental psychology suggests that a cut-off in the mid-twenties—for example, a rule applicable only if the child is age twenty-five or younger—might be appropriate.

This paper proceeds as follows. Part II explores the Wigmore test to justify and shape currently recognized communication privileges. The same rationale that applies to existing privileges applies equally to the limited expansion of the attorney-client privilege for which this paper advocates. Part III explores the problem of waiver. Part IV then argues in favor of a limited expansion of the attorney-client privilege—to make it parent-inclusive. This limited expansion is justified given both the role of the attorney and modern evidence regarding the developmental capacity and decision-making abilities of adult children. Part V explores another alternative sometimes used in cases involving minor children—treating the parent as agent of the child. While plausible, a solution founded in the law of agency is problematic, and a parent-inclusive attorney-client would avoid these problems. Part VI concludes.

II. Communication Privileges Under the Wigmore Test

A. A BRIEF HISTORY

During a 1742 debate in the House of Lords, the Duke of Argyll famously stated that "the public has a claim to every man's

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evidence" in order to determine the truth.⁹ Even before the Duke announced this principle, English courts had held that certain types of communications were privileged, and therefore immune from discovery or disclosure, notwithstanding the fact that they might be of value to the truth-seeking process.¹⁰ Historically, such common-law privileges were limited to communications of a kind deemed specially worthy of protection because of the close and sensitive relationship between the parties to the communications.¹¹

Before recognizing categorical communication privileges, courts made case-by-case determinations of the need for privacy by balancing the "validity of the right sought and the 'need' for protection against society's interest in...