Author: Stephen P. Hurley
Co-author: Marcus J. Berghahn

Your trial date is rapidly approaching and you are confident that you have a strong case. You have briefed all conceivable motions in limine; you have served the subpoenas, spoken to all possible witness, all that remains is to refine your opening statement. You ask your client to come to your office to discuss the case, again. Your client brings his wife, who is naturally very concerned and wants to ask you many questions. Since you care (this is, after all, why you became a defense attorney), you take both of them into your office and discuss the case at length. As the three of you discuss the facts again, and as you have before, you tell your client to be frank and forthright with you – no matter how bad the facts may be.

A few days later, your client calls. His wife has been subpoenaed. Your call to the district attorney reveals that he intends to call your client’s wife as a witness because he believes that your client confessed to the offense while the three of you met in your office a few days ago. Moreover, he tells you “maybe I’ll call you as a witness to his confession in your office.”

You feel angry and indignant. After the flush leaves your cheeks you ask yourself: can he do this? Certainly the attorney-client privilege1 prevents the disclosure of such communications.

This note will discuss the attorney-client privilege and the marital privilege in order to illustrate the ethereal nature of the privilege protecting your conversations with your client when your client’s spouse is also present. While many prosecutors may be reluctant to reach at the straws necessary to make the preliminary showing in order to breach the privilege, caveat counselor! 3 This note will also discuss what precautions you may take in order to prevent (and later repel) such an attack.

The attorney-client privilege is designed to encourage the communication between client and counsel. State ex rel. Dudek v. Circuit Court for Milwaukee County, 34 Wis. 2d 559, 150 N.W.2d 387 (1967). The roots of this privilege, which essentially prevents testimony, reach back into Roman times. The need for the privilege, however, gained prominence over four centuries ago when English courts compelled witnesses to testify. Initially, the privilege was designed to recognize (and protect) the professional status of the defense attorney. While this view of the privilege may have fallen in disfavor (one need not look further than the metal detectors in so many county courthouses today), the privilege is recognized as belonging to the accused. Nonetheless, the privilege is an obstacle to the investigation of the truth, therefore, the privilege is strictly confined within the narrowest possible limits, consistent with the logic of the principle. Jax v. Jax, 73 Wis. 2d 572, 243 N.W.2d 851 (1976). Thus merely showing that a communication was from a client to his attorney is insufficient to warrant a finding that the communication is communication relates to matters within the scope of the agency.

The policy of the evidentiary privilege is based upon the recognition of the value of legal advice and assistance based on full information of facts and the corollary that full disclosure to counsel will often not be possible if the accused fears that others would be able to compel a breach of confidences. Dudek, supra. Thus even statements concerning anticipated litigation may be privileged so that the attorney may best assist render legal advice. 4 In order for the communication to be privileged the communication (1.) must not be intended to be disclosed to third person, other than those individuals associated with the lawyers rendition of legal services; and (2.) be made for the purpose of facilitating the rendition of legal services to the client.5 The scenario discussed above satisfies the second aspect of the attorney-client privilege, but clearly comes into conflict with the first when the spouse is present in the same office with counsel and client.

Moreover, the attorney-client privilege governs communications and does not necessarily make privileged facts or evidence independent of the communication. Jax, supra; Dudek, supra. Thus, the payment of a retainer fee is not a privileged communication,6 nor is the fact that a client visited his attorney with his wife. It may be through this opening that a prosecutor is able to determine that the spouse may have information detrimental to the accused and may provide the basis for seeking to question the spouse, absent any objection to privilege or relevance, about what was said in the attorney’s office.

The marital privilege 7 prevents another (in this case, a spouse or former spouse) from testifying against the declarant concerning private communications made during the marriage. Like the attorney-client privilege, this privilege prevents the disclosure of evidence and therefore is strictly construed. State v. Locke, 177 Wis. 2d 590, 502 N.W.2d 891 (Ct. App. 1993). Unlike the attorney-client privilege, this privilege may be asserted by the spouse and not the defendant. Indeed, the statute presumes that the spouse may assert the privilege absent evidence to the contrary. Wis. Stat. § 905.05(2). This means that a statements by a husband to his wife, no one else being present, are private and confidential communications and cannot be testified to by her, without his consent. Kaspar v. Murray, 171 Wis. 295, 176 N.W. 1021 (1920).The marital privilege is founded on public policy and seeks to promote the free exchange of confidences between husband and wife. Abraham v. State, 47 Wis. 2d 44, 176 N.W.2d 349 (1970); State v. Pratt, 36 Wis. 2d 312, 153 N.W.2d 18 (1967). 8

Essential to the marital privilege is that the communications are (1.) between a lawfully married couple; (2.) are made in private; and (3.) that the communications contain private information. Communication between wife and husband made in the course of a conspiracy to commit an unlawful act is not privileged. See State v. Doney, 114 Wis. 2d 309, 338 N.W.2d 852 (Ct. App. 1983). Thus, where a husband and wife communicate, orally and in privacy, any testimony relating to this communication by the wife would be excludable if the husband were to be prosecuted for an offense not related to the wife. 9 State v. Sabin, 79 Wis. 2d 302, 255 N.W.2d 320 (1977). However, the mere presence or hearing of a third person destroys the privileged nature of an otherwise “private communication” between husband and wife. Id.; but see, State v. Dalton, 98 Wis. 2d 725, 298 N.W.2d 398 (Ct. App. 1980)(court did not address whether the communication between husband and wife was privileged or not when the statement was made in the presence of the couple’s small children because the privilege, if it existed, was waived by subsequent disclosure of significant portions of the private communications). Thus, where the communication is made in the presence of the husband’s attorney, then, seemingly, the privileged nature of the communication is lost.

The third condition of the marital privilege requires the communication to contain private information. A communication between spouses is not private if a third party has access to the same information. Kain v. State, 48 Wis. 2d 212, 179 N.W.2d 777 (1970); see also, State v. Solberg, 211 Wis. 2d 372, 564 N.W.2d 775 (1997)(privilege holder waives privilege if he or she voluntarily discloses or consents to disclosure of any significant portion of the matter or communication). Communication, between spouses, of information publicly available is not protected by the marital privilege. For example, since communications between husband and wife concerning unemployment compensation do not originate in confidence and are facts which may be equally accessible to public inquiries, such a communication is not shielded by the marital privilege. Consequently, in Kain v. State, supra, the wife was compelled to testify against her husband in a theft prosecution that husband was working and was collecting unemployment insurance. Such testimony did not fall within the marital privilege and was admissible. The third prong of the privilege is not implicated in the scenario discussed above. Similar to actions which may not be protected by the attorney-client privilege (disclosure of the fact that the spouse accompanied her husband to the attorney’s office), the marital privilege may require a spouse to testify against his spouse concerning relevant facts which may be publicly available.

Simple precautions may be taken in order to preserve the privileges belonging to the client. These steps let the client know that you are concerned and professional. First, clearly, any conversations with the client concerning the facts of the case ought occur in private, with no one other than counsel and client present (of course, the statute permits those assisting counsel to be present). The client may, in the privacy of your conference room or his home, as long as he is alone with his spouse, discuss that which was discussed in the privacy of your office. The client, however, should be warned concerning the various permutations of how the privilege that protects his conversations with the spouse may be waived. Second, when the spouse is present in your office to discuss the case, another attorney or paralegal from your office should (ideally) be present. If the discussion with the spouse is then ever disputed, you and your client will have a witness to present who may testify as to the non-privileged nature of the conversations with the spouse. Third, time sheets or day notes upon which the time spent on each case should note the length and nature of each conference including who was present. If a dispute later arises, your business records may be used to demonstrate that no privileged communications occurred while a spouse or any third party was present. Last, and most readily available to all attorneys is to indicate in notes made during meetings with clients, who was present and what issues were discussed. Again, keeping separate notes of conferences with clients and those later meetings with a spouse is essential so that the privileged nature of your communications with the client need not be examined by the court (or worse, by counsel for the state).

While the attorney-client privilege may protect against the disclosure of communications by the client to his attorney, the presence of a third party, such as the client’s spouse, if they are not an agent of the attorney, 10 could cause the privileged nature of the conversation to be lost – at great peril to the client. 11 Neither evidentiary privilege explicitly considers the simultaneous invocation of the privileges; indeed, case law is silent in this regard. Defense counsel should avail themselves of the various methods for protecting the sanctity of the privilege because once the prosecutor is able to ascertain the presence of a third person at a meeting with counsel and client – disclosure of the substance of the communication will surely follow. Once inculpatory statements must be divulged by either spouse or counsel, the genie may not easily be returned to its lamp upon appeal. 12 While to the outsider, the walls of defense counsel’s office may well be constructed of stone or concrete, to the wilely prosecutor, the walls may as well be made of straw if it may be shown that a third party was present when the client openly and frankly discussed the case with his attorney.