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July 29, 2022 Feature

No Copilot Needed: Keeping Third Parties at Bay during Your Breakup

Andrew Z. Soshnick

With the advent of the internet age, legal advice, often inaccurate, became bountiful and easily accessible. The proliferation of misinformation available to divorcing parties grows by the day and has made representing clients in divorce cases far more difficult than years ago. What has not changed, however, is another complication in divorce cases: the overbearing influence of third parties in some marital breakups. Well-intended family members, significant others, and friends often provide their unsolicited views on divorce. At other times, a divorcing party may seek out the impressions of confidants. Third parties often attempt to control and designate goals for the divorcing party under the umbrella of comfort and support, resulting in conflict and inefficiency no matter the intent. Those intrusions can become serious impediments to the effective representation of clients. More importantly, they can threaten, impede, or irreparably damage the attorney-client relationship and breach confidentiality. Matrimonial lawyers are well advised to heed this admonition when considering whether to allow third parties entry into privileged settings.

Clients have different levels of sophistication related to issues in divorce cases. Some understand finances; some have little financial acumen. Some are model parents; some have little experience with children. It is imperative to remember that the attorney-client relationship is sacrosanct and a unique partnership with the lawyer. Allowing third parties into conversations, meetings, and communications may lead to the breach of the attorney-client privilege and result in third parties becoming witnesses or more involved in divorce cases than they contemplated when offering their input. While it is easy for clients to suggest that third parties may have historical data, economic information, parenting observations, and other information vital to a representation, allowing a third party to be injected too closely into the attorney-client relationship has material pitfalls.

First, a third party’s presence may dominate or stifle discussion between the attorney and client. In addition to privilege issues, third parties who dominate discussions may make it difficult for a lawyer to learn the facts and client’s desires. That is problematic in that the client’s goals and aspirations may be muted or unknown. Very few clients want relatives, significant others, or friends intruding on intimate personal details and may feel uncomfortable sharing information in their presence. This chill on the information flow can lead to unwelcomed surprises in discovery, mediation, custody evaluations, and trials that lead to negative outcomes. The only way to know what a client is thinking, expecting, and wanting is to have meaningful dialogue in a protected and unfettered setting. This does not include third parties unless essential to a client’s understanding and when attorney-client privilege still can be invoked.

Second, third parties may bring personal observations, prejudices, goals, and aspirations that are inconsistent with the client’s. A third party may view situations more aggressively and with bias, inadvertently causing higher emotion and more discord. In turn, their presence may make rational discussion between the attorney and client more difficult. It can be difficult to convince a client to accept information that is not easy to hear. A wingman who supports a client’s sometimes unrealistic position makes that difficult job even more difficult and may also constrain a lawyer’s message or client redirection.

Third, the potential unraveling of confidentiality and waiver of the attorney-client privilege can lead to disastrous consequences. Think about it. The third party is deposed and recites almost verbatim your theme and theory of the case, as well as the specific strategies, strengths, weaknesses, and descriptors, making a successful resolution less likely to occur. Or conversely, because there is a third party present, the lawyer may decide to mute or fail to offer information that is necessary for a client’s consideration in a fulsome decision-making process. The stress of divorce challenges the most rational client’s level of retention. Additional challenges are not needed.

Finally, matrimonial law has special nuances and is state specific. Nonlawyers or nonmatrimonial lawyers lack the experience and foresight to accurately predict outcomes and often buttress unbridled and unrealistic client expectations. That ill-advised or “unauthorized” practice of law, no matter the desire to be helpful, adds confusion to an already stressful and muddled process for a client. The matrimonial lawyer should be the sole source of legal advice for clients and not have to fend off inaccurate and stress-inducing expectation-setting conversations.

Clients deserve the best from matrimonial lawyers during life-changing and life-defining times. That best can only occur in a trusted setting with the free and frank exchange of information in an inviolate confidential setting. Restricting the involvement of third parties in divorce representations is crucial to a successful attorney-client relationship and ensures the maximum level of protection of privileged communications. With a deft and polite touch, it is incumbent upon matrimonial lawyers to assert “no copilot needed” when confronted with potential overbearing third-party involvement. Clients will be all the better for it.

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Andrew Z. Soshnick is a partner in the Indianapolis, Indiana, office of Faegre Drinker Biddle & Reath LLP. A trial lawyer with broad experience representing high-net-worth clients in family law matters, Drew also actively advises clients in business disputes. He is a past chair of the Indiana State Bar Association Family & Juvenile Law Section, a fellow of the American Academy of Matrimonial Lawyers, and a fellow of the International Academy of Family Lawyers.