Having Friend Present at Attorney Meeting Waives Attorney-Client Privilege

Tennessee case summary on attorney-client privilege.

Dana Marlene Pagliara v. Timothy J. Pagliara

The wife in this Williamson County, Tennessee, case filed for divorce in 2016.  The wife was represented by an attorney and met with her attorney a number of times.  During a number of the meetings, a friend was present, although they could not remember which meetings the friend was present for.  During one of the meetings, she discussed whether she should report her husband’s actions to law enforcement.  The attorney informed her that the attorney-client privilege would not apply with the friend present, but the wife insisted.  The husband believed that the attorney told her that making the report was the only way to gain an advantage in the divorce case.

The wife subsequently reported the husband to the police department.  The husband alleged that this report was for the purpose of inflicting emotional distress.  As a part of his claim, the husband requested discovery of the wife’s communications with the attorney.  The wife claimed that the communications were protected by the attorney-client privilege.

The trial court, Judge Deanna B. Johnson, held that the communications were not privileged.  Even though the friend was not present for all of the communications, the wife had the burden of proof to establish that the friend was not present.  The wife then brought an interlocutory appeal to the Tennessee Court of Appeals.

The appeals court began by noting that the presence of a third party waives the attorney-client privilege.

The appeals court agreed that the burden of proof was on the wife to establish which meetings were without the friend.  It noted that the wife was in the best position to have the necessary knowledge.  Since she was not able to identify the individual meetings, the court agreed that she had failed to meet the burden of proof.

For these reasons, the Court of Appeals affirmed the lower court and remanded the case.  It assessed the costs of appeal against the wife, but did not award either party attorney fees.

No. M2019-01397-COA-R3-CV (Tenn. Ct. App. June 29,  2020).

See original opinion for exact language.  Legal citations omitted.

To learn more, see The Tennessee Divorce Process: How Divorces Work Start to Finish.