As a criminal defense attorney, I get many calls from parents of young adults seeking legal counsel. Often this occurs when the young adult gets charged with some minor offense at college or semi-“away from home.”
Here are some things that you need to know.
1. While what you say to the attorney you are looking to hire is generally confidential, it is usually not “privileged.” “Confidential” means that the attorney has a ETHICAL DUTY not to reveal the material voluntarily, but may under limited circumstances be forced to do so under subpoena, etc. “Privileged’ means that the holder of the privilege – generally, the client – has the POWER to prevent the release of the privileged communication, documents, etc. Confidentiality is a duty; privilege is a power.
2. The foregoing differences between confidentiality and privilege means that your son’s or daughter’s prospective attorney may well not want to hear certain information from you, and may wish to exclude you from the room when speaking to your adult child. In addition, your attorney may direct your child not to talk to you and request of you not to communicate with your child regarding the subject matter of the case. Communications between parent and child are in most cases not privileged and in Maryland enjoy no statutory privilege.
3. EVEN IF YOU ARE PAYING FOR THE ATTORNEY, you may be excluded from the client-attorney communications due to risk of a privileged communication losing its privilege.
4. Some exceptions to the foregoing may apply if your participation is necessary to assist a disabled adult under guardianship or, possibly, to assist your adult client with communications issues such as in the case of a deaf citizen client. If your adult child is under a legal disability, has a cognitive impairment or a communications disability, this is a fact that you should communicate early to any prospective attorney so that appropriate steps may be taken to preserve privilege, particularly in a criminal case. On the other hand, it is reasonable in many cases to communicate some information in some cases to a parent or legal guardian under rules 1.4 and 1.6.
5. If you are funding the case, any unearned fees may actually belong to your young adult client at the end of the case unless all involved agree to another arrangement. While this ordinarily should not be a problem practically, it’s worth putting into writing not only that unused funds get returned (which is the law and the ethically required result) but precisely to whom they get returned.
6. It is not uncommon for parents and young adult clients to have different attitudes about a case. This is natural and human. In the end, however, your adult son or daughter calls the shots subject to attorney advice unless she or he is under a disability and you are the guardian. Even if you disagree with the attorney – and perhaps you may be right – the attorney-client relationship is just that – between attorney and client. Special rules may apply when an attorney’s client and a minor client’s parent/legal guardian disagree on how to handle a case but in the end, the attorney owes a fiduciary duty to the client, not to the client’s guardian, but may be obliged to obey the minor client’s explicit instructions even if the attorney judges them to be unwise or contrary to the attorney’s fiduciary judgment. Even communicating at all about the case with a parent or legal guardian may be limited under ethics rules 1.4 and 1.6. For such situations ethics hotlines may be of service to the attorney.
7. Many times, young adult clients lack the good judgment to accept an attorney’s advice. (Indeed, in some situations, it was youthful foolishness that necessitated the retention of the attorney in the first place.) One of the experiences that your young adult child may experience in dealing with an attorney is the first no-nonsense encounter with real adult life; this is particularly true if your child is in college, which in the United States is largely distinct from real life in its economics, accountability and mores. (example: if you are accused of cheating in college, you usually get some sort of student due process hearing administered by a class president wannabe; if you are accused of cheating the register at McDonald’s as an employee, you get fired and maybe you get prosecuted.) Attorneys sometimes have to deliver the sort of “real world hard news” to a young adult that no one has previously delivered before to her or him, particularly in criminal cases; this is part of the legal representation.
8. Depending on the case, you may be able to be a great resource to your adult or minor child, but you should expect that your attorney will take the case on in much the same way that a doctor will provide your child medical care: you can be supportive and should be if you can, but in the end your adult child is receiving the benefit of the legal advice, strategy and tactics in the case and it will be the client’s position and direction on which the attorney will most focus.