Ethics Question of the Week: Does family member affect attorney-client privilege?

Q. I have a client who, because of a mental impairment, wishes to have a family member sit in on our discussions. Does this affect the attorney-client privilege?

A. Comment [3] to IRPC 1.14 states that a client “may wish to have family members or other persons participate in discussions with the lawyer. When necessary to assist in the representation, the presence of such persons generally does not affect the applicability of the attorney-client privilege. Nevertheless, the lawyer must keep the client’s interests foremost and, except for protective action authorized under paragraph (b), must to look to the client, and not family members, to make decisions on the client’s behalf.” For more on clients with diminished capacity, please see IRPC 1.14. 

ISBA members can browse past ISBA Ethics Opinions, access our Ethics Hotline, and other resources on the ISBA Ethics Page.

[Disclaimer. These questions are representative of calls received on the ISBA’s ethics hotline.  The information provided below is meant as an educational tool to highlight potentially applicable Illinois RPC or other ethics resources that might help the lawyer answer the question posed. The information provided isn’t legal advice. Because every situation is different, often complex, and the law is constantly evolving, you shouldn’t rely upon this general information without conducting your own research.]