The Privilege of Serving My Clients

The Privilege of Serving My Clients by Fabienne Swartz

{2:44 minutes to read} As a Certified Divorce Financial Analyst (CDFA), there is no attorney-client privilege attached to my work. When a client and I correspond through emails, those emails are discoverable; only emails exchanged between a client and their attorney are considered privileged. 

If a client hires me and includes their attorney in the emails, there may not be privilege attached to it—but I believe there should be. Quite often a client will hire me first, then have their attorney get involved. Unfortunately, that situation is less likely to allow privileged communication. This is problematic, as I’ve worked with several attorneys in the past, strategizing on how to get the best results for our clients.  

In a case I once had, my client and I exchanged emails that contained somewhat candid language, as the client was venting her frustration regarding her soon-to-be ex-spouse. When things went her way, she was gushing in her emails—often in an unedited, stream-of-consciousness style. My client wanted me to be real, human, and raw, so I celebrated along with her. 

If I had gotten a subpoena insisting I produce those emails, I would have looked unprofessional, especially to a judge. I learned from this experience, and now I am doing what I (and everyone) should have done all along: Don’t write any emails that you don’t want the world to see!

Though I have made it a rule to remain professional in all correspondences, verbally my client and I enjoy absolute privacy.

I don’t see why anyone should have access to the strategy meetings between my clients, their attorneys, and me. What’s worse, the rules governing the extension of privilege to other divorce professionals vis-a-vis attorney-client relationships are complicated, to say the least—and they vary from state to state. As a result, I have gone back to the basics: face-to-face meetings and phone calls.

In conclusion, the takeaway is:

  • Any work I do one-on-one with a client is never going to be privileged.

Once an attorney is involved: 

  • If the client hired me, there may not be as strong of a case to extend the privilege to the work and emails between the three of us; and 
  • If the attorney hired me, there may be a stronger case for having all work and emails fall under attorney-client privilege. 

I don’t see why this should be the case; a CDFA is part of a client’s strategic team, and their work impacts the client’s life in the same ways an attorney’s work does.

Ideally, once a CDFA is engaged with a client and her lawyer, attorney-client privilege should be extended to all recipients of any communications between them.

Do you know the level of confidentiality you enjoy with your divorce professionals? To find out more contact me

Fabienne Swartz JD (Belgium) CDFATM
Certified Divorce Financial AnalystTM
500 Mamaroneck Av.
Suite 320
Harrison, NY 10528
(914) 798-6940

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