Singer Marvin Gaye’s signature lyric, “I heard it through the grapevine,” is particularly daunting if it refers to a celebrity’s family law matters.
When representing athletes and entertainers, family law attorneys are often pressed to discuss client matters with agents, managers or members of a third-party-entourage (“handlers”). Though Marvin Gaye realized we should believe half of what we see and none of what we hear, the same can’t be said for the media.
Family law attorneys need to understand that client confidentiality may be lost when matters that otherwise would be privileged go through the grapevine.
Years ago, the Illinois Supreme Court held that the attorney-client privilege applies where legal advice of any kind is sought from a professional legal adviser. The communication must be related to that purpose and made in confidence by the client. See In Re Himmel, 125 Ill. 2d 531, 541, 127 Ill. Dec. 708, 712 (1998). Generally speaking, anything communicated between an attorney and client, or even a potential client, is protected by the attorney-client privilege from disclosure.
The purpose for such wide ranging protection is to allow a client to communicate openly and honestly with the attorney without the fear of disclosure of the communication. In cases involving celebrities, protecting the privilege is especially important because, without it, communications with an athlete’s or entertainer’s handler may be obtained through discovery, most typically by means of a third party subpoena.
The privilege is the client’s to maintain, but it is the attorney’s duty to advise the athlete or entertainer of potential waiver issues. A waiver must be discussed with the client because of the typical attorney-athlete/entertainer relationship, which frequently involves a third party handler. It has been universally accepted that agents of both the attorney and the client, who were necessary to the legal assistance sought, could be brought within the circle of confidentiality.
Therefore, it behooves the attorney to explain to the client that if he or she insists that communications go through a handler, the important privilege may be waived. This is because the client, knowing of the presence of the third party, could not have possessed a reasonable expectation that the communications would remain only between the client and the attorney. What then can be done?
One option is to argue that the handler is a consultant. Illinois Supreme Court Rule 201(b)(3) protects the disclosure of the identity of consultants and their work product except under exceptional circumstances. A consultant is a person who has been retained or specifically employed in anticipation of litigation or preparation for trial but who is not to be called at trial. Whether one can successfully argue that the athlete/entertainer’s handler is a consultant or whether or not exceptional circumstances exist to prevent disclosure of information are both open to interpretation. As a result, there could be much debate and increased fees about what qualifies as an exceptional circumstance and whether a handler should be considered a consultant.
Due to the uncertainty as to whether or not the handler would be afforded the protections of a consultant, best practice is to develop a policy of communication when representing athletes or entertainers. Despite the large entourage of people that typically surround the athlete or entertainer, the attorney must insist on dealing directly with the client when highly sensitive information must be discussed. For all other communication, the attorney must limit discussion with only one “handler” of the client. This will give greater strength to the argument that the client possessed a reasonable expectation that the communications were privileged. Ideally, the handler would be the client’s direct agent. Finally, the attorney should inform the client at the initial interview that privilege may be waived when a handler is the conduit of information.
Taking these precautions will help keep athletes’ and entertainers’ highly sensitive family law matters under wraps. Choosing to deal with the clients’ handler-of-the-month comes at high stakes - not just to the celebrity, but also to the attorney. If information is leaked, or obtained via a third party subpoena, the attorney may find himself thinking, “honey, honey I know, that you’re lettin’ me go . . . heard it through the grapevine.”