“A lawyer shall not reveal information protected by the attorney-client privilege under applicable law or other information gained in the professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing …”

The words do not have the ringing majesty of, say, the words of Shadwell, Virginia’s native son, who began his most famous piece with, “When in the course of human events …” Still, one-time lawyer Thomas Jefferson would have respected and understood the words of the Virginia Bar Association’s (VBA’s) rule 1.6, Confidentiality of Information. What do those words mean to your divorce?

What is Attorney-Client Privilege?

“Privilege” in this usage is not the legal equivalent of a FastPass at Disney. No lawyer is claiming to be superior to someone else by exerting attorney-client privilege. Rather, the privilege of privacy is superior to any legal demand to fork over private communications. The other side can subpoena your phone records, your browser history, and your power bill, yes; but hands off the notes, discussions and confidences exchanged between a lawyer and client!

In Virginia (as with every other state), laws protect attorney-client privilege. The Code of Virginia is rife with references to the cherished tradition, including § 54.1-3900.01, “Protection of client interests …”, § 8.01-420.7, “Attorney-client privilege and work product protection …”, and § 19.2-56.1, “Warrant issued for search of attorney’s office.”

In every case, the Virginia courts and legislature give wide latitude to the confidentiality and privilege between a lawyer and client.

Divorce and Confidentiality

Rarely does a divorce lawyer have any reason to infringe on the professional ethical standards laid out by the Virginia Bar Association, but if a client (perhaps out of frustration, but who can be sure?) blurts out that he wants to kill his wife, the lawyer is legally obligated to report such a threat. Says the VBA:

“A lawyer shall promptly reveal:
(1) the intention of a client, as stated by the client, to commit a crime reasonably certain to result in death or substantial bodily harm to another …”

Divorce is one of the most intimate areas of law. Divorce lawyers hear raw emotions, coarse accusations, and tearful admissions all the time. Unless you say something like, “I am going to have my wife bumped off so I get the kids,” you can vent all you want; your outbursts stay between you and your attorney.

Confidentiality, though, is not identical to attorney-client privilege. The psychological profile of your children may be confidential, and it may be part of the evidence your attorney uses to win custody for you, but it is not subject to attorney-client privilege because other professionals have already seen it. It can also be shared with others (the judge, Child Protective Services).

Exceptions to Attorney-Client Privilege

Besides crime or fraud, the only other notable exception to attorney-client privilege in divorce is third party disclosure, say experts at the American Academy of Matrimonial Lawyers.

You muster up the nerve to go see your divorce lawyer, but you bring along your 19-year-old son as moral support. Privilege exists only between you and your lawyer. Your son’s participation in the conversation is not privileged. You could (horribly, regrettably) see your son called to testify as to what the conversation was in that office!

Similarly, you CC your best friend on an email to your lawyer (“He’s been so helpful ever since he went through his divorce! He would never steer me wrong! He bought me five drinks at the bar!”). You gave up privilege there, too, since you saw fit to include your friend in what should have been a private conversation between you and your attorney.

Solve all those problems easily: leave Junior in the waiting room; never CC or BCC anybody when you email your lawyer; even avoid leaving specific phone voicemails if you can:

  • Do this: “Hi, Lawyer Jason, could you please call me back regarding the financial statement you wanted?”
  • Instead of this: “Hey, Jason, you were right! She ran up $12,358.13 in jewelry purchases on my VISA card! We got her now!”

Guaranteeing Attorney-Client Privilege

The surest way to preserve information under attorney-client privilege is to communicate directly with your lawyer. Face-to-face meetings in the lawyer’s office are the gold standard. Telephone calls are okay; text messages are okay. Meetings in public places (restaurant booths, bar stools, church pews, and the waiting room of the Jiffy Lube) are not recommended. Facebook or other social media postings are awful!

Many nuances are also wrapped up in both the duty of confidentiality and the concept of attorney-client privilege. Some additional exceptions exist.  If you have any doubts about what is and is not confidential or privileged, your best strategy in divorce conversations with your lawyer is to ask straightforward questions.

A call to The Firm For Men at 757-383-9184, or an online contact, will connect you with an experienced Virginia family law attorney. We can help explain every aspect of your Virginia divorce, from A to Z, from attorney-client privilege to zone of privacy.