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
What is required for confidential marital communications?
1) Criminal + Civil cases
2) Witness/Defendant spouse has choice to assert immunity
3) Valid marriage
- NO bigamy/incest/sham
4) Comms during marriage
- NOT before marriage
- UNLESS divorced/annulled
5) Made in reliance upon intimacy of marriage
- NOT routine business comms/abusive language/misconduct directed to spouse
What is the difference between spousal immunity and confidential marital communications?
Spousal immunity
- Criminal cases
- Defendant Spouse can NOT assert privilege
- Comms before + during marriage
- Federal courts
Confidential marital comms
- Criminal + civil cases
- Defendant Spouse can assert privilege
- Comms during marriage
- State courts
When is marital privilege not applicable?
Dispute between spouses
Crimes vs Spouse/Children
Comms in furtherance of joint crime/fraud
Which law should be applied towards privilege?
Diversity cases
- State law (common law)
Federal q cases
- Federal law
Which law recognises privilege?
State law (common law)
NOT federal law
Which spousal privilege applies if both spousal immunity and confidential marital communications overlap due to communications made during the marriage?
State court/Maj view => Confidental marital communications
- Defendant can assert privilege
Fed court/Min view => Spousal privilege
- Witness can assert/NOT assert privilege
