[WSBAPT] Litigators/confidentiality

[Carmen Rowe]

I agree with Phil.

I sometimes have someone who has their child/relative or good friend
present. With a child/relative, I ask if they are willing to designate them
as an agent for purposes of the lawsuit, and have that in the
representation agreement. If a friend, more usually I advise that the
communication will not be confidential and the friend could be made to
speak to the meeting.

I've also found in practice, that if someone wants to bring a
friend/child/whoever, they are using them as a support system and it is
quite probable that they exchange emails or texts about the subject. I
advise that they need to keep in mind that ANY communication between them
will be subject to later discovery unless that person is a designated agent
of the client for purposes of the lawsuit. So even outside attorney-client
confidentiality issues, their comments may all come out to light later and
they need to remain very mindful of that.

And if someone is bringing a friend, I find that often also means they rely
upon other friends/social network for support, and emphasize repeatedly
(and at least once in an early email) that ANY communications about the
issue will be subject to later discovery - and again, this isn't even just
about attorney-client privilege but also any comments they may make that
may come back to bite them. Just quit putting any conversation about the
dispute in writing.

You can (and should) craft the designation of expert in the representation
agreement very specifically as to exactly what authority the agent has. Is
it to participate/facilitate information exchange? be able to authorize
acts in the litigation (as sometimes the parent, say, really wants the
child to handle it for them)? does the client want to be cc'd on every
communication? Be able to authorize minor tasks but client must be
consulted for major strategy decisions or work that will cost over a
certain amount? etc.

I include a conflict waiver, that both parties affirm there is no known or
anticipated conflict between their interests or any other factor that would
impact the agent acting solely in the best interests of the client.


If it is a case where they are using a friend/family member as an agent
because the primary client isn't as accessible (be it geography, travel, or
lack of email) I specifically state that client understands that they may
not receive every communication and I will be relying fully upon
communications as agent as having client's full authority for any
directives (subject to any restrictions they may wish), and that agent will
be conveying information to the client and I am entitled to rely upon that
expectation, and client knowingly accepts this - including significant
documents exchanged like pleadings, settlement offers, etc. (subject to any
exceptions - I typically affirm that I will not do something "final" such
as accept or propose a settlement offer until I have at least verbal
confirmation from client).

Be very clear that client understands they will be financially obligated
for any work directed by the agent within the scope of the agency outlined,
and that should there ever be a conflict between the agent and the client
with respect to this process, you would have to withdraw, and that the
primary client will always have full right to access/receive any
information or communication provided by the agent. I have agent sign, so
that they cannot later say they thought something they sent to me would
remain confidential from the client.

That may seem like a lot; but just various ways I've seen people get into
trouble in practical terms when things move forward. Happily thus far
learning from the woes of others; but I think spelling it out also helps
them understand the process and feel good about it. And people usually
really appreciate you thought that much about it.

If it will be just for a consult, you could accomplish this with a written
affirmation both/all sign that the client has the third party there as
their agent for purposes of this consultation with no intent to waive the
attorney-client privilege.

Now, for a family estate thing, a few neighbors coming in to consult with
about an issue, or so forth, I don't think it's that simple as there is
always potential conflicts of interest and that gets a bit more
delicate/tricky. I've done it with family members looking at potential
joint representation with respect to a specific issue/transaction,
questioned a lot at beginning about potential conflicts of interests, and
had all sign conflict of interests statements and that I would have to
withdraw should anything come up later between them even if I am just
moving forward with one for any ongoing work. I think that is important for
them to know before you proceed; that they introduce a risk of investing in
you and then if a conflict arises down the road with one of the others
there at the initial consult, they would lose their representation and
would have to find another attorney.

But when they are bringing a wing-man/woman, I use the above in the rep
agreement.

Carmen Rowe, Attorney/Owner



Phone: (360) 669-3576 (direct cell)
Email:  Carmen at GryphonLawGroup.com

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