At its most dire, attorney-client privilege may apply when a suspect confesses to his attorney that he did, in fact, murder his wife. In a divorce matter, a client may admit to his attorney that he had an affair, which will likely come out during the divorce proceeding, and it is best that the attorney be prepared to deal with it. Both of these confessions are things you might not even tell your best friend. If you don’t tell your attorney, you jeopardize his or her ability to effectively represent you.
Rule 1.6 of the Rules of Professional Conduct sets out the principles of Confidentiality of Information between an attorney and a client. These rules facilitate a relationship and create an attorney-client privilege in a divorce action in Monmouth County, New Jersey. This allows a client to admit facts to his attorney with the assurance that the attorney will not divulge confidences shared during the course of representation. While there are a few exceptions to the rule, the basic rule of attorney-client privilege is designed to support the trust that a client must have in their attorney for the most effective representation.
Attorney-Client Privilege Is Required for Competent Representation in a Divorce in New Jersey
In the grand scheme of things, a client must be able to be truthful with his or her attorney for at least two critical reasons:
- An attorney has to know all of the facts of the situation to be able to provide the best representation.
- If the client does not disclose all of the facts, his or her attorney may be surprised during discovery or at trial with no possible way to recover from the damaging evidence with no advance notice to prepare.
In today’s world of the Internet and social media, it is likely that the opposing side will uncover evidence.
The privilege belongs to the client, which means that he or she has the sole authority to waive or invoke it. The privilege can be affirmatively raised in the face of a legal demand for the communications, such as a discovery request, during a deposition, or in response to a subpoena. The attorney cannot unilaterally decide to disclose the information unless the client has provided written permission for the attorney to do so or unless it falls within one of the exceptions.
Communication Is the Key to Attorney-Client Relationships
Before the privilege can be invoked, there must be a “communication” that was intended by the client to be confidential, and that was made while the client was seeking legal advice. Since the word “communication” is obviously key to invoking the privilege, it is critical to understand what qualifies as “communication”. Just as importantly, as it could void the privilege, the client must know what is not a “communication” or what actions might impact the privilege of an otherwise protected communication.
Communication can be verbal, either in person, over the phone, or via an interface such as Skype and Zoom. It can also be written, including letters, emails, text messages, and chat interfaces like Slack. Communication through an electronic medium can become more complicated if third parties are included in the conversation because disclosure to a third party can void the privilege.
What Are the Exceptions to the Rule of Privilege?
An attorney may override the protection of the privilege under certain circumstances that may involve illegal acts, such as hiding assets or fraud in a divorce case in New Jersey and death or substantial bodily harm to the client or another person. For example, if a client in a divorce exclaims to his attorney that he will kill his wife before she gets the house, the attorney has to make a judgment as to whether the threat is likely to be carried out.
An attorney may also divulge this information to another attorney to get a second opinion as to whether the circumstances justify the waiver of the privilege. Suppose it appears to be a serious imminent threat. In that case, the attorney’s duty of privilege to his client can shift to protecting the third party from harm by notifying the proper authorities.
Full Disclosure Under Attorney-Client Privilege Can Improve Legal Representation
If you are considering a divorce in New Jersey, you shouldn’t be concerned about divulging information you have kept from your spouse to your attorney. Family law attorneys understand how full disclosure can help them get the best result for you in your divorce case in New Jersey. They can also explain the exceptions to the privilege to you to make sure you don’t inadvertently waive the privilege and expose information that the other side can use against you.
Contact an Experienced Monmouth County Family Law Attorney at The Law Office of Jennifer J. McCaskill, LLC for Legal Advice
To learn more and get the help you deserve, call our divorce & family law firm in Red Bank. NJ at (732) 747-1882 or contact us online today.
You can also visit our law firm at 157 Broad St #111, Red Bank, NJ 07701.
