5. Privileges Flashcards
Attorney-Client Privilege Elements
- Confidential communications
- Between attorney and client (or representative of either)
- Made during professional, legal consultation
- Unless privilege is waived by the client, or an exception is applicable
Confidential communications definition
Client must have reasonable expectation of confidentiality (e.g., no privilege if client knows that third party is listening in; or if client asks attorney to disclose the communication to a third party).
Joint client rule
If two or more clients with common interest consult the same attorney, their communications with counsel concerning the common interest are privileged as to third parties. But if the joint clients later have dispute with each other concerning the common interest, privilege does not apply as between them.
Voluntary Waiver of the Attorney Client Privilege
Only the client has the power to waive the privilege. (After the client’s death, the privilege continues and only the client’s estate can waive it.)
Subject Matter Waiver of the Attorney Client Privilege
(E.g., multiple privileged documents, only some of which are disclosed to the opponent).
A voluntary waiver of the privilege as to some communications will also waive the privilege as to other communications if:
- The partial disclosure is intentional,
- The disclosed and undisclosed communications concern the same subject matter, and
- Fairness requires that the disclosed and undisclosed communications be considered together.
Inadvertent Waiver of Attorney Client Privilege
(E.g., one privileged document in a stack of non-privileged documents inadvertently gets disclosed)
An inadvertent disclosure of a privileged communication will not waive the privilege so long as the privilege-holder:
- Took reasonable steps to prevent the disclosure, and
- Takes reasonable steps to correct error.
Attorney Client privilege does not apply when:
(1) Future crime or fraud: E.g., client tells attorney, “Help me disguise the bribes I made so that they look like legitimate business expenses.”
(2) Client puts legal advice at issue: E.g., in tax fraud prosecution, defendant defends on ground that she relied on advice of her attorney in reporting income.
(3) Attorney/Client dispute: E.g., attorney sues client for unpaid fee, or client sues attorney for legal malpractice.
Physician-patient privilege applies to:
- Confidential communication or information acquired by physician from patient
- for the purpose of diagnosis or treatment of a medical condition
Federal law distinction for Physician-patient privilege
In federal-court actions based solely on federal substantive law (e.g., civil rights, securities fraud, federal criminal case), privilege exists only for psychotherapy. There is no privilege in federal-court actions based solely on federal law for confidential communications with physicians as regards physical conditions.
Exception applicable to both physician and psychotherapist privileges
Privilege is lost if patient expressly or impliedly puts physical or mental condition in issue. E.g., patient is plaintiff suing for damages for personal injury or mental suffering.
Federal Spousal Immunity
A spouse cannot be compelled to testify about anything against the defendant spouse.
Who holds this federal spousal immunity privilege?
The witness spouse
NY Spousal Immunity
New York does not recognize a spousal immunity privilege.
Confidential Communications Between Spouses
IN ANY TYPE OF CASE, civil or criminal (FEDERAL AND NEW YORK), a spouse is not required, and is not allowed in the absence of consent by the other spouse, to disclose a confidential communication (statements or acts) made by one to the other during the marriage.
Who holds the privilege of confidential communications between spouses?
Both spouses (Either spouse may invoke the privilege; waiver occurs only if both consent to disclosure.)
