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No Waiver of Privilege from Presence of Parents and Neighbor at Conversation with Counsel

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From Quagliarello v. Dewees, 2011 U.S. Dist. LEXIS 78870 (E.D. Pa. July 20, 2011) (§ 1983 action against a police officer):

Plaintiff contends that [her attorney] Murphy cannot testify as to her conversations with Plaintiff, because any conversations between Plaintiff and her criminal defense attorney are privileged pursuant to Fed. R. Evid. 501. *** Confidential communications are not intended to be disclosed to third persons other than parties who further the provision of professional legal services. United States v. Moscony, 927 F.2d 742, 752 (3d Cir. 1991). "The ultimate key to determining confidentiality is intent." Id. (clients' signing of affidavit in the presence of a third-party did not waive the attorney-client privilege where the clients intended their communications to be confidential).

Defendants argue that Plaintiff waived the attorney-client privilege because she consulted with Murphy in the presence of third parties, i.e. her parents and Gorbey [a neighbor and employee of defense counsel who referred the plaintiff to her lawyer]. Westinghouse Elec. Corp. v. Republic of Philippines, 951 F.2d 1414, 1424 (3d Cir. 1991) (citing United States v. AT&T, 642 F.2d 1285, 1299 (D.C. Cir. 1980)) ("voluntary disclosure to a third party of purportedly privileged communications has long been considered inconsistent with an assertion of the privilege").

The Court finds that Plaintiff did not waive the privilege as to discussions where Donna Gorbey and Plaintiff's parents were present. In Kevlik v. Goldstein, 724 F.2d 844 (1st Cir. 1984), the First Circuit held that the presence of a client's father at the meeting with his attorney did not waive the attorney-client privilege where the client intended that his communications with the attorney were confidential. Id. at 849. Furthermore, "[t]he presence of a third party will not vitiate the attorney-client privilege if the third party is the attorney's or client's agent or possesses a commonality of interest with the client." In re Grand Jury Investigation, 918 F.2d 374, 386 n.19 (3d Cir. 1990) (citing 8 Wigmore at § 2311); see also Miller v. Haulmark Transport Sys., 104 F.R.D. 442, 445 (E.D. Pa. 1984) (Huyett, J.) ("[T]he privilege is not destroyed when a person other than the lawyer is present at a conversation between an attorney and his or her client if that person is needed to make the conference possible or to assist the attorney in providing legal services.").

Here, Plaintiff's neighbor and parents facilitated Plaintiff's obtaining legal counsel on the day of her arrest. There is no evidence that Plaintiff intended to waive the attorney-client privilege in her communications with Murphy. Therefore, the Court grants Plaintiff's motion in limine.

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New York Attorneys JHA handles range the gamut of complex financial and commercial litigation and arbitration, including securities, RICO, corporate and contract disputes, credit default swaps, derivatives, and class, mass, and derivative actions. The firm also represents law firms in major disputes.
New York Attorneys JHA handles range the gamut of complex financial and commercial litigation and arbitration, including securities, RICO, corporate and contract disputes, credit default swaps, derivatives, and class, mass, and derivative actions. The firm also represents law firms in major disputes.

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