Attorney-Client Privilege in a Divorce

Attorney-Client privilege in meeting
Attorney-Client Privilege is a Critical Benefit to anyone who retains an attorney

Attorney-Client Privilege: What is It?

This privilege is a right of the client of any attorney. An individual becomes a client when he or she enters into a retainer agreement with an attorney.

This privilege allows the client to refuse to disclose communications between the client and the attorney.  The client also can prevent his or her attorney from disclosing such information. 

In practice, attorneys are well aware of this rule.   They are therefore very careful about disclosing such information without a client’s consent.

One note about waiving privilege.  It’s a client’s right to waive the privilege.  However, a client may unwittingly waive the privilege if the communication is disclosed to a third party.  

Also, only the communications between attorney and client are protected.  The underlying information is not.  In other words, if the information is available elsewhere, simply reiterating it to an attorney does not make the original information privileged.

Why Does it Matter?

It’s critical with any legal representation that a client can speak freely to his or her attorney.  More specifically, the United States Supreme Court has stated that the privilege encourages clients to make “full and frank” disclosures to their attorneys, who are then better able to provide candid advice and effective representation (Upjohn Co. v. United States, 449 U.S. 383, 389 (1981)).

Attorney-Client Privilege in a Divorce

Full and frank disclosures are often needed in a divorce.  Unfortunately, divorces may deal with many sensitive issues.  These include:

  • Children and Parenting
  • Allegations of Abuse, including Emotional, Physical, or Sexual
  • Allegations of Drug and/or Alcohol Abuse
  • Mental Health Issues
  • Personal assets
  • Matters of personal privacy

It’s important to know that anyone can be open and honest with his or her attorney.  It’s the attorney’s job to competently represent you based on all information available.  The attorney-client privileges allow this to work.

For other divorce or family law questions, please consult the list to the left or the FAQ page.  If you’re interested in retaining an attorney to help you, please feel free to contact my office for a consultation using the contact information on the left or the contact form on the Majeski Law home page.  For Minnesota Court rules, go here.