11. Privileges Flashcards
What is the purpose of privileges under common law?
Allow one to refuse/prohibit others to disclose certain confidential information during judicial proceedings
- Ensure practicality
- Encourage certain relationships
What is required for asserting privilege?
1) Asserted by either;
- Privilege holder
- Someone who shared in confidence on Holder’s behalf
2) Communication shown/presumed to be made in confidence
When may privilege be waived?
Failure to assert privilege
Voluntary disclosure
- With consent
Contractual waiver in advance
When may privilege not be waived?
Wrongful disclosure
- With no consent
Jointholder’s disclosure
- With no consent
Eavesdropping
- Unless Holder was negligent
What is required for attorney/clergy/accountant-client privilege?
1) Client must seek Attorney/Clergy/Accountant’s professional services
- Includes comms before + after Attorney/Clergy (some states)/Accountant accepts/declines case
2) Attorney/Clergy/Accountant-client relationship existed at time of communications
3) Confidential communication
- TP communications necessary for disclosure (secretaries/messengers/accountants)
4) Asserted by;
- Client
- Attorney/Clergy/Accountant (on Client’s behalf)
- Employees in Corporation (directed to communicate with attorney/pursuant to their duties)
Is a doctor’s examination of a client privileged?
Attorney-client privilege
- Examination at attorney’s request
- Examination is necessary to help client communicate his condition to attorney
- Doctor/Client can assert privilege
NOT Doctor appearing as expert witness
NOT physician-patient privilege
- Treatment is NOT contemplated
When is attorney-client privilege not applicable?
Intended for TP disclosure
Made in known presence + hearing of stranger
Attorney acts for BOTH parties of lawsuit
- UNLESS TP involved
Client knew/should have known attorney’s services were sought for crime/fraud
Dispute between attorney + client re their breach of duty to each other
Client puts attorney’s legal advice at issue into the lawsuit
Client is deceased + comms required to effectuate Client’s will
Waiver of privilege (by Client)
- Voluntary disclosure => Disclosure of disclosed info only
- Intentional disclosure + ALL info concerns same subject matter => Disclosure of ALL info
Can attorney-client privilege be asserted after the attorney-client relationship is terminated?
Yes
When may attorney’s work product be asserted?
Documents prepared by attorney for his ‘own’ use in prosecuting his client’s case
- UNLESS necessary
Who may waive attorney-client privilege?
Client
NOT lawyer
What is required for physician-patient privilege?
1) Professional relationship
- Physician was present during treatment
2) Information acquired while attending patient during treatment
- NOT by other means
3) Information necessary for treatment
- Specific medical info
- NOT date of treatment/illness appearance/description of patient’s clothing/accident details
When is physician-patient privilege not applicable (impliedly waived)?
Patient puts physical condition in issue
- Patient sues for personal injury
Patient knew/should have known Physician’s services were sought for crime/fraud
Dispute between Physician + Patient re their breach of duty to each other
Agreement to waive privilege
- Life insurance policy
Waiver of privilege (by Patient)
Federal cases
- BUT psychotherapist-client privilege could apply
Who may waive physician-patient privilege?
Patient
NOT Physician
What are examples of attorney-client privilege?
Psychotherapist-client privilege
- Psychiatrist
- Licensed social worker
Accountant-client privilege
What is required for spousal immunity?
1) Criminal case
2) Witness spouse has choice to assert immunity (Federal courts)
- NOT compelled to testify
- Defendant spouse can NOT prevent testifying (but can in some state courts)
3) Valid marriage
- NO bigamy/incest/sham
4) Comms before + during marriage
- UNLESS divorced/annulled
