Evidence Privilege Flashcards
How do you determine what privilege law to follow?
If arising under federal substantive law, federal common law.
If arising under diversity jx, if state substantive law applies, use privilege law of state whose substantive law applies.
What are the elements for attorney-client privilege?
- Confidential communications
- between attorney and client (or representative)
- made during legal consultation (either while represented or while seeking consultation)
What are confidential communications?
Client must intend confidentiality (no privilege if client knows third party is listening or client asks attorney to disclose communication to third party)
Privilege does not apply to underlying information, pre-existing documents, or physical evidence.
What is the joint client rule for privileged communications?
If two or more clients with common interest share attorney, their communication regarding same interest is privilege as to third parties.
BUT, if the joint clients become adverse in the common interest, then privilege does not apply as between them.
Who counts as an attorney for a/c privilege?
member of the bar or one who client reasonably believes is a member
Also, any representative necessary to facilitate the provision of legal services.
Who counts as a client for a/c privilege?
actual client or person seeking to become a client (e.g. consultation where primary purpose is to obtain legal advice)
Who can waive privileges?
Client (and her estate after death) bc she is the holder of it.
it continues after termination of a/c relationship.
When does the physician patient privilege apply?
the information is obtained while treating the patient and the information is necessary for treatment.
*in federal court based solely on federal law, only applies to psychotherapists
What are the exceptions for physician-patient privilege?
- If patient expressly or impliedly puts physical or mental condition in issue.
- if patient used dr’s services to aid in wrongdoing
- information is relevant to a dispute between patient and dr
When does spousal immunity apply and who can waive the privilege?
In criminal cases only, a spouse cannot be compelled to testify (about any matter) against defendant-spouse.
Witness-spouse holds privilege so he/she can choose to waive it.
When does privilege for confidential communications between spouses apply and who can waive it?
In any type of case.
Can’t disclose confidential communication made by one to the other during the marriage.
Both spouses must waive the privilege since they both hold it.
What are the exceptions for the privileges of spousal immunity and confidential communications between spouses?
- communications or acts in furtherance of future crime or fraud
- communications or acts destructive of family unit (e.g. spousal or child abuse)
In addition to conversations between attorney and client, what other conversations fall under a/c privilege?
Communications through agents (e.g. legal secretaries, accountants) if necessary to transmit information between attorney and client.
- if a patient communicates with a doctor at the lawyer’s request (e.g. to get medical bills), the a/c privilege applies and not physician-patient because the patient is not seeking medical care.
When does the attorney-client privilege not apply?
- attorney’s services were used for something the client should have known was a crime or fraud
- communication between parties claiming through a deceased client
- an issue arising from a dispute between client and attorney
- client has put legal services at issue (e.g. ineffective assistance of counsel)
Is attorney’s work product privileged and can another party gain access to it?
ordinary: can be waived if other party shows a substantial need
opinion (mental impressions, thoughts, etc.): almost never waivable
