We’ve all had clients who want their spouses or children involved in discussions about their legal matters. Often, this is because the family member helps manage finances, oversees a business, or simply “knows the details better.” While this impulse is understandable, the well-meaning inclusion of a client’s spouse or child in an attorney-client conversation can have unintended consequences. Unless the third party is acting as the client’s agent or is otherwise necessary to the representation, their presence can destroy the attorney-client privilege. 

So what does it take to be an agent in this context? In one case from 2016, the Court of Appeals held the attorney-client privilege applied to meetings involving an attorney, client, and client’s “good friend” where the client and friend had entered into a confidentiality agreement referring to the friend as the client’s “agent” for the purposes of divorce and child custody proceedings.¹ The Court relied not only on the confidentiality agreement but also on an affidavit from the friend “establishing that her role during the communications was as [the client’s] agent and consultant[.]”²

What if there’s not an agency relationship? Because the attorney-client privilege is construed narrowly in North Carolina, attorney-client communications will not be protected “simply because the third party is helpful and can be trusted not to share the communications with others.”³ Generally, North Carolina courts have required that the third party be necessary to the representation. For example, in 2019 the business court rejected a client’s argument that an attorney-client communication made in the presence of his son should be privileged because the client’s son could help the client “recall and impart relevant information to counsel and to hear and help [him] reflect on and understand legal advice rendered.”⁴ The court found the client’s son was merely “a sounding board—someone who could provide moral support and advice to [the client]” rather than his agent or necessary for the protection of his father’s interests.⁵ Thus, the privilege was waived.

Attorneys should carefully evaluate the status of third parties who are present during client meetings or copied on emails with clients. Unless the client and third party can show the third party’s presence was necessary, can satisfy the elements of agency under North Carolina, or have otherwise reduced their principal-agent relationship to writing, the conversation might not be privileged after all. 

1. Berens v. Berens, 247 N.C. App. 12, 21–22, 785 S.E.2d 733, 740–41 (2016).
2. Id.
3. Kelley v. Charlotte Radiology, P.A., No. 18-CVS-12279, 2019 WL 8109486, at *6 (N.C. Super. Ct. May 15, 2019).
4. Id.
5. Id. at *6.