To answer a question with a question: “Isn’t the sensible answer ‘No’?” After all, people contemplating divorce are not children. This is an entirely adult decision made by an adult who decided to marry in the first place. The prospective client is the person living the marriage with all of its advantages and disadvantages. No matter how close the friend or family member, that person is not living the marriage.
In the past, my feelings on this subject were mixed and colored by the breadth of friends and family brought to these meetings. In many instances, the guest is more adamant that there needs to be a divorce than the spouse doing the interview. This can be especially true of parents who will often confess during an interview that he or she never liked the marriage or the other spouse in the first place.
Rule #1 is consider carefully who to bring and what motivates you to invite that person. Recently, I had an initial interview with a prospect and a parent where it was clear within the first 20 minutes that while the prospective client had an enormous array of objective reasons to pursue divorce, however, her expressions and language made equally clear that she was not prepared to begin this journey. Truth is clients who do not really believe they are entitled or could be better off by ending a marriage are very poor clients to represent. They don’t believe in the mission even though they can articulate why they are in pursuit of it. If you want to bring a guest, bring one who can help you process your real needs rather than endorse your uncertain mission.
Rule #2 relates to attorney client privilege. What you tell a lawyer alone or in the office with a member of the lawyer’s staff is entirely confidential. It is not to be revealed to anyone else. But, if you bring an outsider to the meeting, the attorney client privilege is lost as it relates to confidences related with an outsider present. Therefore, what you tell me in the presence of a guest is not confidential. It does not mean that the attorney is at liberty to discuss what was said. It does mean that if someone subpoenaed your friend or family member, what you told the lawyer in a meeting with an outsider can be revealed through examination of the guest.
Is this a justification for excluding others from an initial meeting? No. It just means that not all subjects should be on the table. If you know of illegal, fraudulent or even embarrassing conduct on your part or that of your spouse, the meeting with an outsider is not the time to reveal it. I typically tell clients about this by stating that, if there are such facts that need to be discussed, that should be the subject of a subsequent conversation with the lawyer alone. Rarely does this conduct drive the transaction being considered in an initial interview. But it often colors how the case is handled.
If the discussion stopped here, it would appear an attorney interview should be conducted alone. However, experience has taught me that some of the most productive initial interviews I have hosted have been conducted with an objective friend or family member. These folks often see inconsistency or lack of candor in ways that the attorney does not. They know their subject based upon observation of their friend and his or her marriage. Just as important is the fact that there are now a second set of ears to hear and absorb what the lawyer is saying. Just as has been reported in relation to a patient’s ability to absorb what a physician is saying in a medical setting, people are usually nervous and somewhat distracted during an initial interview concerning separation and divorce. Just as with a poor medical diagnosis, it is difficult to remain focused when discussing termination of a relationship built upon expectations it would last a lifetime.
In the end, it can be very helpful to bring someone with you when you are judging whether to terminate a marriage and whether the person doing the interview is “right” for you. But as we have noted, think carefully beforehand, about who you bring and what you say.