Meeting With an Attorney and Attorney Client Privilege

Author: Gregg Mosson | | Categories: Attorney , Civil Litigation , Lawyer , Legal Consultation

Family Law Lawyer Maryland

When you meet with an attorney in a confidential manner to discuss a legal situation, such as an employment matter, family issue, inheritance problem, or concerning even potential civil litigation, this confidential communication is privileged from disclosure at Court. 

It's called the "attorney-client" privilege.  This privilege enables people to get confidential advice without fear of having the conversation disclosed at court, and so empowers people to be honest with their own confidential attorney to get the best advice.  See generally Newman v. State, 384 Md. 285 (2004).

Maryland law breaks down attorney-client privilege as follows, as an eight-part definition:

(1) Where legal advice of [any] kind is sought (2) from a professional legal adviser in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his insistence permanently protected (7) from disclosure by himself or by his legal adviser, (8) except the protection [may] be waived.

Newman v. State, 384 Md. 285, 302 (Md. 2004) (citing Harrison v. State, 276 Md. 122, 135 (1975)); accord Green v. McClintock, 218 Md. App. 336, 365 (2014).

How Does the Attorney-Client Privilege Work At Court? 

(It's a Shield)

Practically speaking, if someone told his attorney something confidential, he or she can not be asked in open court, what did you tell your attorney and then be forced to answer this question.  It's privileged from disclosure.

Of course, that's another reason to have an attorney at court.  If the other side asks this question, the witness might choose to answer.  They then "waive" the privilege even by accident, as applied at least in this instance.  However if they are represented, the attorney for the same witness will object, based on attorney-client privilege.  The witness then will be told not to answer it.

There are numerous exceptions to attorney-client privilege.  For instance, under what is called the crime-fraud exception, someone cannot seek legal advice ("in furtherance of") committing a future crime with minimal risk, or some fraud, and have it be privileged from evidence at court.  In other words, consulting an attorney about a future crime would be admissible evidence showing intent to engage in a criminal or fraudulent act.  Newman, 384 Md. at 309.

Going back to the original point, if someone whispers a confidential secret to a friend, it might come into evidence at court.

However during a confidential meeting with one's attorney, this conversation is privileged from becoming evidence.

Can Someone Come to a Legal Consultation as Moral Support?

In Maryland, it is possible for someone to bring a person to a legal consultation with an attorney for moral support and have that conversation remain confidential if the client intends it to be confidential.  Further, it is important this moral support helps facilitate the meeting.  Newman, 384 Md. at 305-306. 

In Newman, the mother was involved in a tough custody fight.  She was afraid of losing custody to the father.  Matters were so tense, the attorney did not want to meet in person with her, due to her temper.  However, the attorney arranged the meeting with the mother (client) and her best friend.  The best friend came for moral support and to help cooler heads prevail, recounted the Court.  This friend already had accompanied the mother to several court events for the same reason.  In this fraught situation, the Maryland Supreme Court upheld the attorney client privilege in this meeting.  Newman, 384 Md. at 305-306.

So, the answer to this question is that under Maryland law, especially to a single legal consultation, the Maryland court system will uphold attorney client privilege if someone comes for moral support and it is necessary. 

This being said, many employment and other legal matters also involve federal law.  I am not aware of any federal court precedent that would agree with Maryland's position on this within Maryland.  As a result, the presence of the supporting "third-party" likely waives privilege under federal law but not under Maryland law.

Gregg H. Mosson, Esq.

Mosson Law, LLC

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