Confidentiality -- Can You Keep a Secret?

In the field of family law, many people have "situations" they would like to keep secret: embarrassing, inappropriate and sometimes illegal behavior. Unfortunately, confidentiality doesn't necessarily cover things just because they are embarrassing, inappropriate or illegal. In fact, those activities are often ones that draw the most interest in family law cases. It is usually pretty easy to establish the relevance to the case. For example, if there are kids and the matter relates to parenting somehow, it will probably be relevant to the case and may be admissible. If fault is being argued to justify an unequal division of the community estate, the bad activities may be part of the proof of fault, and therefore admissible.

Here are some quick thoughts about confidentiality.

• You should always assume that everyone will see, hear and read everything. Be careful what you do and say and write. It will likely be used against you in court. If you make threats, verbally or in writing, someone may have a video image (with a cell phone, everyone has a video camera now) or a document. Think, before you speak or act. Assume that whatever you do or say will be seen or reported in court.

• There is still attorney-client confidentiality, but not if you bring in a 3rd party (friend, parent, sister, etc.) to the conversation. You can also give up the confidentiality if you disclose the information to someone else. There is also no confidentiality for plans to commit future criminal offenses.

• It is a good idea to tell your attorney, in advance, the bad facts of your case. You may feel better just getting it off your chest, and the attorney has probably heard a whole lot worse stuff anyway. It takes a lot to shock an experienced attorney.

• Another advantage of telling the attorney is that s/he will have time to prepare a response for when it comes up in court. Actually, it is often a good strategy for your attorney to bring out your bad facts (in a controlled manner) to minimize the damage.

• Don't expect the husband-wife privilege to help you keep out bad statements in a divorce.

• Although it is relatively easy to do electronic snooping on a computer, by planting microphones or by hiding cameras, that does not make it legal. There are legal ways to search a computer (with a court order), but you should not try it on your own. Hiding microphone or cameras can get you into trouble for violating wiretapping and privacy laws, among other things.

• If you suspect you are being spied upon, you should immediately tell your attorney and then have an expert check it out. While you are in litigation, you should assume that whatever you say, do or write could show up in court, so be careful.

• If you are really concerned about privacy, you should consider using the Collaborative Law process because it provides a great deal of privacy. You can talk to your attorney at the outset about that option.

If you get involved in a litigated family law case, there will be very little privacy and limited confidentiality. You should be prudent in how you interact with others since whatever you do could easily show up in court.