You may want to have your spouse present when meeting with an attorney. In those meetings, are your communications privileged? In short, it’s not clear.
First, the law is not settled in many states. Second, it depends on which state’s law applies.
For example, in one case in Minnesota, the Minnesota Supreme Court held that communications between a client, his lawyer, and his wife were not privileged. See State v. Rhodes, 627 N.W.2d 74 (Minn. 2001), aff’d, 657 N.W.2d 823 (Minn. 2003).
The court explained
The attorney-client privilege does not apply to confidences given in the presence of third parties. See Kobluk v. Univ. of Minn., 574 N.W.2d 436, 443 (Minn.1998) (noting that disclosure to a third party may waive the confidentiality element of the attorney-client privilege). Although [the client] argues that he and his wife were joint clients, [the client’s attorney] testified and the district court determined that [the client] alone was the client. Because [the wife] was a nonclient third party, her presence prevented the attorney-client privilege from attaching.
However, Rhodes involved some extraordinary circumstances: whether the client murdered his wife. The court was narrowly addressing whether attorney-client privilege should apply because the client claimed his wife was effectively a co-client of the attorney. Based on the attorney’s testimony, the court found the wife was not the attorney’s client, so attorney-client privilege did not apply.
Notably, the court did not address spousal-privilege. Perhaps there was no need to address spousal-privilege because of the general exception: communications between spouses are admissible in a controversy between each other. The issue in Rhodes was whether Rhodes murdered his wife.
Similarly, New York cases have held there is no privilege if a client and spouse speak with an attorney, explains to attorney Seth L. Laver:
While there has been relatively little case-law on this issue, there have been several decisions in New York holding that the presence of the third party—the lawyer for the spousal privilege, and the spouse to the attorney-client privilege—serves to nullify the confidentially requirement of each.
Pennsylvania & Colorado
Federal courts in Pennsylvania and Colorado have come to the opposite conclusion, observed Laver: “the privileges can coexist.”
Public Policy Underpinnings
To my mind, the public policy reasons for privilege are reinforced when a spouse joins a client’s conversation with an attorney—not negated.
There is no public policy reason that the attorney’s presence should cancel the spousal privilege and the spouse’s presence should cancel the attorney-client privilege. Rather, the public policy behind both privileges would seem to provide two reasons for preserving privilege when a client’s spouse joins a conversation with the client’s attorney.
The conclusion that the spouse and attorney cancel each other out appears to be a simplistic, technical interpretation of privilege law that excludes the important purpose behind both doctrines.
For example, imagine an attorney speaking with a client: the attorney-client privilege applies. Later that day, the client relays the conversation to the spouse: the spousal-privilege applies. There is no dispute that both communications are privileged. Thus, it is absurd to conclude privilege is waived if the client asks the attorney and spouse to be in the same conversation.
This probably goes without saying: until the law is settled, the safest option is to avoid confidential communications with an attorney and client’s spouse present. However, if this issue is litigated, it may be worth arguing privilege remains because of the important public policy considerations underlying both the attorney-client privilege and spousal-privilege.
For a list of related resources, check out Clients, Counsel, and Spouses: Case Studies at the Uncertain Junction of the Attorney-Client and Marital Privileges, an article by Jared S. Sunshine published in the Albany Law Review, Volume 81.2 (2018).