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
Work product
Materials created by counsel for trial purposes and communications between counsel and witnesses before trial, which are protected by either an absolute privilege or a qualified immunity from discovery, depending on the content
Attorney work product
Materials created by counsel for trial purposes, and communications between an attorney and an expert in preparation for trial
- 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