Some things in life are better when you bring a friend along. Meeting with your attorney, however, is not traditionally one of them. Although attorneys say that having a trusted friend who can act as a facilitator between the client and counsel is of great value, bringing an outside party into the conversation risks destroying the attorney-client privilege that keeps such discussions confidential.
But the law may be evolving in a direction that creates some space for such friend-facilitators. The North Carolina Court of Appeals ruled April 19 that a divorce litigant who engaged her good friend, an inactive attorney, to be her agent and sit in on meetings with her legal counsel is still entitled to the benefits of attorney-client privilege for conversations the friend took part in. The court held that a confidentiality agreement signed by the friend allowed her to be privy to attorney-client communications without waiving the privilege.
Brooke Adams, the inactive attorney, signed the agreement with her friend, Melissa Berens, providing that Adams would act as Berens’ “agent and personal advisor to specifically assist her in this litigation,” and that the privileged information Adams received would be used “solely for the purpose of settling or litigating” the divorce proceedings, with the expectation that all communications would be protected by the attorney-client privilege. Adams also agreed not to discuss the case with any third parties unless Berens’ attorneys were present.
Tom Bush, the Charlotte attorney representing Berens in the divorce case, said that such arrangements are common in domestic cases because the trusted friend or family member can be an invaluable source of information for the legal team and ensure that the client is fully candid. Bush said that Adams’ status as an inactive attorney was not an important aspect of the relationship.
“Every day there is someone in our conference room who is an adult child who’s there to help mom or dad who is going through divorce, or a concerned mom or dad who is in because their daughter is going through divorce,” Bush said. “And a friend often goes in because the client is extremely nervous and afraid she won’t understand everything. These friends are extremely helpful in both domestic and criminal cases where they can help reassure that client.”
But you say she’s just a friend
Berens’ husband saw the matter differently and filed a subpoena duces tecum (a subpoena for production of evidence) demanding all documents related to Adams’ communications with Berens and her attorneys. Berens contended that the information was privileged, but Mecklenburg County District Court Judge David Strickland disagreed, finding that the agreement between Adams and Berens held no weight and that “there is no ‘good friend’ exception to the attorney-client privilege.”
Adams and Berens both appealed the order. The Court of Appeals ruled that Adams was not a party with standing to challenge the order, but agreed to consider Berens’ appeal. The court reversed Strickland’s order, finding that Adams sat in on attorney-client communications as Berens’ designated agent, and not merely as her friend, as thus her presence did not destroy the attorney-client privilege. (An attorney who communicates with his client via the client’s agent is considered to be communicating directly with the client for the purposes of privilege law.)
Judge Lucy Inman, writing for the court, found that Strickland had misapprehended the law of agency in ruling that the confidentiality agreement held no weight and dismissing without explanation Adams’ and Berens’ claims of an agency relationship. Even though Adams is neither currently a practicing attorney, nor was she employed by Berens’ attorneys, the agreement between them clearly established that Adams was acting at all times as Berens’ agent, notwithstanding the fact the two were close friends, the court said.
“We are aware of no case law, nor has Plaintiff cited any authority, that being a client’s ‘good friend’ and being a client’s agent are mutually exclusive,” Inman wrote. “Nor does our case law prohibit a non-practicing attorney from acting as an agent for purposes of assisting another person in communications with legal counsel. Our holding would be the same if Ms. Adams had been a friend trained as an accountant, a psychologist, or an appraiser who agreed to assist with the litigation without charge.”
The court remanded the case to determine whether all of the material requested would be covered by attorney-client privilege, noting that some of the documents might also be covered by the work product doctrine, which shields all documents prepared in anticipation of litigation.
Agents, of shield
Michelle Connell of Wyrick Robbins Yates & Ponton in Raleigh represented Melissa Berens on appeal. Connell said that her client’s success on the privilege issue hinged on the explicit language in the confidentiality agreement designating Adams as Berens’ agent. The court referred to the agreement repeatedly in its ruling, and Connell said that it was crucial that attorneys have such written contracts in place before they let a third party sit in on sensitive conversations.
“I don’t think you can take it for granted that anyone can come into the case and be involved. I think you need to have something in place from the get-go and don’t let it wait until six months down the road,” Connell said. “And I’m still going to be careful about talking about something that I wouldn’t want the other attorney to know about in front of this third person.”
Gena Morris and Christopher Hood of Horack Talley Pharr & Lowndes in Charlotte represented Michael Berens, the husband. Hood argued on appeal that because Melissa Berens is a “highly intelligent” adult capable of communicating effectively with her attorneys without the need for an agent, Adams’ presence for the conversations was not essential, and thus the conversation should not be privileged. Hood said he was interested to see how the influence of the court’s decision would play out practically in future litigation.
“Once attorneys in North Carolina realize that if there’s a friend or family member that could be said to be a useful advisor or consultant and they don’t want that person to be subject to certain lines of inquiry or discovery, I predict that we’re going to be seeing a lot more of these types of agreement executed between litigants and third parties,” Hood said.
The 20-page decision is Berens v. Berens (Lawyers Weekly No. 011-135-16). The full text of the opinion is available online at nclawyersweekly.com.
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