LUSKY & ASSOCIATES, P.C. is a Small Boutique Law Firm with a practice emphasis in Consumer & Business Bankruptcy Law and Debtor-Creditor Relations for over 30 years.

Confidentiality and The “Third Party Rule”

Most clients expect that their conversations with their lawyer are confidential and cannot be compelled to be disclosed.  This is known as the “attorney-client privilege.”  While the privilege generally applies to conversations between the attorney and client, there are exceptions.

One of the most common exceptions is the “Third Party Rule.”  Many clients will want to meet with their attorney with their best friend or family member present.  Unless that third party is a husband or wife, the presence of the third party may destroy the privilege.  That means that both the attorney and the client could be required to disclose the content of the conversation.  Therefore, if you are going to discuss matters of a sensitive nature, you should ask your friend to wait outside.

While this exception exists, it may not be that important in a bankruptcy context.  Most of what you will discuss will be in preparation of the documents that will be filed in the bankruptcy court.  These documents are filed under oath and are a public record.  Your attorney will advise you to tell the complete truth in these documents and should not assist you in falsifying them.  To do so would subject both you and your attorney to criminal penalties of up to five years in prison.  It would also trigger another exception to the attorney-client privilege known as the “Crime-Fraud Exception.”  Conversations with your attorney to commit or plan a crime or fraud are not protected.

With all of the above in mind, I usually tell my clients that unless they are going to confess to being an ax-murderer, it will probably be ok for their friend to attend.  However, they must understand that while I will not willfully volunteer any information about the conversation, I can be compelled to do so.

If you have any questions about the confidentially of your meetings with your attorney, please discuss it in private.

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