8. Privileges

Question 1

Privilege - Attorney-Client Privilege

Answer 1

Communications between an attorney and client are privileged if the communications occurred while the client was seeking legal services and made in confidence. A representative or agent of the attorney or client may be present without waiving the privilege. Communications made by an attorney’s agent are also privileged. An attorney is presumed to assert the privilege; only a client may waive it. Communications do not include physical evidence.

Question 2

Privilege - Crime/Fraud Exception to Attorney-Client Privilege

Answer 2

The attorney-client privilege does not apply when the communication was used in furtherance of something the client should have known was a crime or fraud.

Question 3

Privilege - Prevent Death/Substantial Bodily Harm [CA] Exception to Attorney-Client Privilege

Answer 3

Communication is not protected by attorney-client privilege when the lawyer reasonably believes disclosure is necessary to prevent a crime that is likely to result in death or substantial bodily harm.

Question 4

Privilege - Physician-Patient Privilege

Answer 4

Communication is protected by the physician-patient privilege when there is a professional relationship between the patient and the physician, the information was communicated or acquired during treatment, and the information was necessary for treatment to occur. However, the privilege does not apply in certain exceptions such as when the patient puts his condition in issue or the physician’s assistance aided in the wrongdoing in dispute.

Question 5

Privilege - Psychotherapist-Patient

Answer 5

Communications between a patient and psychotherapist are privileged. In CA, such communications are not privileged if there is reason to believe the patient is a danger to himself or others and the disclosure of the privileged communication is necessary to end the danger.

Question 6

Privilege - Confidential Marital Communications

Answer 6

Confidential communications between spouses are privileged. A communication is a confidential marital communication when it was made during the marriage and in reliance on the intimacy of the marital relationship. Either spouse may refuse to disclose the communication and may prevent the other spouse from disclosing. The privilege lasts after the marriage ends, but only covers communications made during the marriage.

Question 7

Privilege - Spousal Immunity

Answer 7

Spousal immunity grants immunity for one spouse from testifying against his or her spouse during a valid marriage. The witness spouse holds the privilege and may choose whether to waive it. The privilege can only be claimed while married and does not survive after marriage, but it includes information learned before marriage. In federal courts, this applies only to criminal cases. In California, this applies in both civil and criminal cases.