Most states have adopted some variation of what is called the "spousal privilege" or "marital privilege." Those usually appear in statutes or rules, and dramatically vary from state to state. For obvious reasons, spouses' communications and presence also implicate normal privilege and work product doctrine principles.

In Shih v. Petal Card, Inc., No. 18-CV-5495 (JFK) (BCM), 2021 U.S. Dist. LEXIS 192966 (S.D.N.Y. Oct. 6, 2021) (Moses, J.), the defendant sought communications between plaintiff and her lawyer husband. In analyzing the attorney-client privilege, the court first explained that under New York law disclosing a preexisting privileged communication to a spouse did not waive that protection. But the court then warned that "[t]he analysis is somewhat more complicated when . . . the spouse is present for the communication between client and her attorney." Id. at *27. That analysis turned on whether "the spouse is an agent of the client." Id. (citation omitted). The court ultimately concluded that the plaintiff established that her husband met that standard – which requires "a fairly minimal showing" that "the client reposed trust and confidence in her spouse and expected the communication to remain confidential notwithstanding his presence." Id. at *28.

Many lawyers might think that this analysis is a gimmie – but the S.D.N.Y.'s careful evaluation proves otherwise. Although the court noted that "New York courts frequently reach similar results where the third party is the client's adult child or other close family member" (id. at *28 n.9), other courts treat those other family relationships with far more skepticism than in the spousal context. Next week's Privilege Point will address protection for the plaintiff's lawyer husband's use of his law firm's server – which could have had disastrous results.