The Presence of Family Members and Others During Attorney-Client Communications: Himmel's Other Dilemma
Parness, Jeffrey A.
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In re Himmel, the Illinois Supreme Court addressed the dilemma that confronted attorney James Himmel, who had been forced to choose between reporting another attorney's misconduct and maintaining his own client's secret. The high court's pronouncements regarding Himmel's dilemma have been widely read, though not always with pleasure. Yet, attorney Himmel faced a second dilemma: How could he accommodate his client's desire to discuss her legal problems with him in the presence of both her mother and her fiancé, while assuring her that their discussions would probably be deemed privileged and thus immunized from compelled disclosure? On this other dilemma, the Illinois Supreme Court said little, noting only that no privilege would be recognized unless the mother and fiancé were "agents" of Himmel's client. The court provided neither substantive guidelines nor procedural rules for determining whether such an agency relationship exists. In the hope of aiding those who may face Himmel's other dilemma, this article will analyze who can be considered an agent of an individual client for the purpose of attorney-client communications.