You describe a classic ethical dilemma, where two important values conflict. And, the applicability of privilege certainly complicates the issue. In your hypo I could see a possibility that we might discuss this issue with the client and present the option of asserting privilege and arguing that the court should treat the family member as it would an interpreter whose presence would not destroy privilege. If the judge were sensitive to the cultural implications this might work. Of course, we would try to use (and build) our skills to communicate about the issue effectively. We would never advise a client to lie!

Any other ideas to address this excellent hypo?

I’m curious whether your course goes into practical applications like negotiation, client development, and issues of confidentiality which impact professional conduct and loss of privilege.

For example, an attorney counseling on case’s strengths and weaknesses to a client for whom it would be culturally improper to exclude members of the immediate family from the discussion. What happens to a/c privilege? In my state and federal jurisdictions it’s gone. So plaintiffs’ lawyers are left wondering whether to advise their clients to lie about non-party family members participating in a conversation, or go through the charade of having them sit in the next room. And defense counsel need to wonder whether they would be failing to serve their clients if they fail to inquire of plaintiff abuela “who was with you when you spoke to your lawyer about the strengths and weaknesses of this case.”

I’m looking forward to your article.

Jonathan Kroner, JD, MBA