While communications between a lawyer and his or her client are privileged, both by common law and statute, courts have ruled that privilege does not apply when a client use it in actions termed offensive, this is, in search of affirmative relief, and at the same time seeks "to raise attorney-client privilege as a shield to deny the other party the benefit of material evidence."

In divorce actions where one of the parties is a lawyer, attorney-client privilege may raise special considerations during discovery, particularly when it involves contingent fee contracts. Discovery by the other party in this situation means that it be done "under a strict protective order" that insures that "no confidential information" about the pending action is inadvertently released.

Privileged communication also includes the right against self-incrimination. In civil actions, a party may claim privilege against self-incrimination, but doing so during pretrial discovery carries the risk that the party may be hit with noncriminal sanctions, such as having evidence prohibited or being barred from testifying.

Divorce trials are civil and do not normally involve questions of criminality; therefore, the constitutional guarantee against self-incrimination does not apply in divorce actions. However, in jurisdiction where adultery is still a crime, a party accused of it in a divorce action may seek protection from self-incrimination.

Communications between a husband and a wife are protected.

In some nasty divorces, spouses come to battle stations by using privilege as a weapon. Sometimes one spouse may wish to prevent his or her spouse from using a particular attorney, so he places that attorney in a conflict of interest. The party shares with the attorney confidential information about the marriage and the impending divorce by consulting but not retaining him or her for the divorce. After that, the lawyer is in a conflict of interest. The lawyer has privileged information about one spouse and he may not represent the other.

For obvious reaons, couples who have used the one lawyer to handle their legal affairs during the happier times of their marriage cannot use him or her to represent one of them when they part ways.

See Poisoning the Field of Contenders.

See also Contingent Fee Contract.

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