Don’t Waive Your Attorney-Client Privilege for a Bit of Comfort
Even in a Bankruptcy Matter, Do Not Take Privilege Lightly
It may not be a criminal proceeding or other legal matter with direct Constitutional implications, but it is still important to remember that, even in a bankruptcy proceeding, you are entering a Federal legal process in which litigation with adverse parties is possible. And that, where litigation is possible, so is the need for the introduction of evidence and the need to argue that certain evidence should not be admitted.
The first conversation you have with a bankruptcy attorney, even before you hire him or her, can become the subject of an argument in later litigation as to whether the content of that conversation, or the questionnaires or other documents you completed for your bankruptcy attorney in preparation for that conversation, can be admitted into evidence in that later litigation.
What is “Privilege?”
“Privilege,” to be clear, is one of several legal doctrines holding that potential evidence in a contested matter may not be admitted for review by the judge or jury by an opposing party. If information or documentation is subject to “legal privilege,” it may not be admitted.
Privileged information is information that is the subject of confidential attorney-client communications. This would include the subject of your discussion with an attorney at an initial bankruptcy consultation.
When Can Privilege Be “Waived” (and Who Waives It)?
Privilege of information can be “waived.” That is, it can be removed, and, with it, any argument, that information cannot be used as evidence in subsequent litigation.
The “waiver” of privilege is never the attorney’s to waive. The privilege of the subject of the conversation between you and a bankruptcy lawyer belongs to you. However, you can waive your privilege without meaning to, and a good way to waive privilege is to have a third party present during the conversation with your bankruptcy lawyer.
A Friend or Significant Other at Your Initial Bankruptcy Consultation?
It is very common for someone considering bankruptcy but nervous about meeting with a lawyer for the first time or overly worried about the possibility that they will be “scammed” by the lawyer (despite the fact that all attorneys must maintain licensure through ethical conduct) to want to have a friendly hand to hold during that first meeting.
However, a great deal of information will pass between you and your potential bankruptcy attorney during that initial bankruptcy consultation (assuming the lawyer is doing a good job of it): the entire outline of your financial troubles, the extent of your ownership or prior transfers of assets, among other things. The discharge of debt that you may hold jointly with your spouse or significant other or other person may also be under discussion.
In short, you will discuss everything of concern in your bankruptcy case, including thing that you won’t know anything about that can be troublesome in bankruptcy until you’ve sat down to have that conversation with an attorney.
All of this discussion will be subject to introduction into litigation (in whatever form) as evidence if it is not privileged.
If you have a third person present, even your spouse, in your initial bankruptcy consultation, it is no longer “confidential” information that is privileged, discussed only between yourself and your attorney.
Can I Bring a Friend to My Initial Bankruptcy Consultation? The Bottom-Line
The bottom-line with regard to this question is that it is never a good idea to bring a third party to your initial bankruptcy consultation. You may be nervous, but you should be assured that your potential attorney is there to consider working for you, for your best interests, and for your best outcome—and that his or her licensing depends upon doing these things in an ethical manner. An attorney is not a used car salesman.
However, if your nerves have gotten the best of you and you just don’t think you can bring yourself to make it into the consultation without a comforting shoulder to lean on, that is understandable and common—but you need to understand that you are voluntarily waiving your own attorney-client privilege and making otherwise confidential attorney communications very non-confidential.
The attorney you meet with, if you insist upon having a third party present, may ask you to sign a document acknowledging that you have voluntarily waived your privilege, after informing you of the consequences of your request. Remember: it is nothing personal, but it is your waiver and it should be understandable for the attorney to want to document your decision.
If you are a Michigan resident and would like to explore your options for a Chapter 7 or Chapter 13 bankruptcy with an experienced Michigan bankruptcy attorney, please contact us at (866) 674-2317 or click the button below to schedule a free, initial consultation.
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