Towards a Parent-Inclusive Attorney-Client Privilege
39 Pages Posted: 26 Oct 2018
Date Written: October 25, 2018
The current attorney-client privilege fails to provide a lawyer with the ability to include parents in counseling and advising young adult clients without waiving the privilege. Although there have been previous attempts to legislate a parent-child privilege, they have not been successful. This paper proposes a much more narrowly tailored solution. This article proposes for the first time that inclusion of a client’s parent in attorney-client meetings in an advisory capacity, disclosure to a client’s parent of attorney-client communications, and discussion between parent and child of the contents of such communications should not be treated as waiving the attorney-client privilege, so long as the relevant communications are not disclosed to anyone else.
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. It 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, but recognition of any more general parent-child privilege is not a necessary prerequisite to adoption of the rule proposed here.
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