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Testimony from Life Partners

By David S. Buckel

Attorneys representing clients in same-sex, committed relationships sometimes are unprepared to deal with opposing counsel's efforts to seek testimony disclosing the content of communications between a client and his or her same-sex life partner. In many jurisdictions, the non-client partner will be unsuccessful in asserting a privilege not to disclose this information, and forced at deposition — and maybe at trial — to divulge statements made by the client. Clients challenging the harms of negligence, medical malpractice, and even intentional torts have experienced a second round of harm as they watch a loved one testify about what they believed were secret exchanges.

For the practitioner, this presents an issue for counseling clients in same-sex relationships. For example, it may be necessary to advise clients in same-sex relationships — as well as heterosexuals who are not married to their partners — to hesitate before sharing with their loved ones information that it is important remain confidential.

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