No privileged parentsPublished 5:46pm Thursday, October 4, 2012
By Robert W. LaBre, J.D.
I was in the middle of typing a motion on my computer when our secretary, Terrie, suddenly spoke over the law office’s intercom, “Attorney Robert?”
“Yes Terrie,” I said.
“Your 10:30 a.m. appointment is ready,” she said.
“I’ll be right down,” I said.
My office is on the second floor, immediately above the main entrance and Terrie’s office. I saved my motion, minimized the word processor, and then clicked on the day’s calendar to review the notes regarding my next appointment.
Terrie wrote in the calendar that my client’s name is Zach, that he is eighteen years of age, and that he is seeing me because he was recently charged with larceny of property valued over $1,000.00 in Michigan, which is a felony.
“Oh boy,” I said to myself, and then went downstairs to welcome my new client.
When I turned to enter the waiting room I saw two people sitting together: a young man, who I assumed was my client, Zach, and a middle aged woman, who I assumed to be Zach’s mother.
They both stood up as I entered the room. I reached out my hand to the young man, and said, “Hi, I’m attorney Robert LaBre, you must be Zach.”
“Yeah,” he said in a quiet, nervous voice as he shook my hand.
“And you are?” I asked the woman as I reached out my hand for her to shake.
“I’m Joanne, Zach’s mother,” she said as she shook my hand. “Can we begin?” She said.
“Not quite yet,” I replied. “Let’s all have a seat for a second.”
We all sat down in the waiting room.
Looking at both Zach and Joanne, I asked, “Have either of you ever heard of the attorney-client privilege?”
Both of them shook their head no.
“This is the first time either myself or my son have ever encountered a lawyer on a professional basis,” Joanne said.
“Okay,” I said. “Both of you understand that the attorney-client relationship is built upon trust, right?”
Both of them shook their head yes.
“And both of you understand that what is said between the attorney and the client must be the truth, right?”
Both of them shook their head yes.
“Well, the law understands that the truth is tough to get at, especially when two people meet for the first time, like us right now,” I said. “That’s why Michigan has the attorney-client privilege. Think of it like a protective box surrounding this office. Nothing that is said within the attorney-client privilege can be discovered by the prosecutor, or anyone else for that matter.”
“What does that mean?” Zach asked.
“It means that when you and I speak together upstairs, you can tell me everything that happened without worrying that I may repeat it to someone else, or later be required to testify about what is said in court,” I replied.
“That’s cool,” Zach said.
“I think so too,” I said. “But the privilege has limits – it does not extend to parents and their children.”
Joanne’s eyes and voice hardened, “What does that mean?”
“It means that if you come upstairs with Zach and I, with Zach’s consent, then Zach will have waived his attorney-client privilege under the law.” I replied. “In short, the prosecutor could require both you and I to testify about everything Zach says.”
“But I’m his mother.” Joanne said. “I’m the one paying for your representation. And you’re telling me that I can’t be a part of the interview to help and guide my son through this?”
“Well, you can participate with the interview.” I said. “But Zach will be waiving the attorney-client privilege. I don’t care if he waives his privilege, but I at least want him to do so knowingly — it’s a big risk.”
Turning to Zach, I then said, “And just so we’re clear, I don’t recommend that you allow your mother to come upstairs, especially since you’ve apparently been charged with a felony.”
Joanne then looked at Zach and asked, “What do you want me to do sweetie?”
“I think you should wait down here, Mom,” Zach replied.
Joanne turned to me and said, “Do I have a say on the decisions that are made during the course of the case?”
“No,” I replied. “The rules of professional conduct for attorneys restrict the decisions to your son, who will be my client. That’s true even though you are paying his legal fees.”
“I understand,” Joanne said. “And thank you for explaining all this to us.”
“No problem,” I said.
Then I stood up, looked down at Zach, and said, “Let’s get to work.”
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