Just Privilege Flashcards
Attorney-Client Privilege
- Communication
- Between a client
- And a lawyer
- That is confidential
- And concerns legal advice
Big Exception: CRIME/FRAUD: EC 956 – NO priv if atty services sought to plan or commit crime or fraud (but past crime discussions are privileged)
exception in keeping A/C privilege
exception in keeping claim confidence when disclosure is reasonably necessary to avoid reasonably certain death or serious bodily harm.
Execution of innocent man may fall under this exception
Client admits crime to his atty: what must atty do?
So long as client doesn’t take stand, never reveal the confession
But if client takes stand & lies, atty must withdraw rather than suborn perjury (ethical requirement)
Upjohn rule
In the corporate context, the attorney-client privilege applies to not only those high-level employees who have the authority to act on the legal advice of the attorney, but also to any of those employees who provide information to the attorney so that he may give such legal advice.
Company can waive this at any time however
Work Product vs AC priv
Attorney-Client Privilege:
Any receipt of legal services
Communications between client & lawyer
Absolute privilege
Work Product:
Only in anticipation of litigation
Any documents prepared
Qualified for facts about the dispute
FRE 502 Waiver of Privilege
When the waiver is intentional . . .
The party must disclose other communications or information:
1. concerning the same subject
2. that ought in fairness be considered
When the disclosure is inadvertent . . .
The privilege-holder may take back the information if
1. The privilege holder took reasonable steps to prevent disclosure
2. The privilege holder promptly took reasonable steps to rectify
Spousal Testimonial Privilege
Applies when:
- Spouse is a CRIMINAL defendant or target of GJ investigation. Other spouse may refuse to testify against defendant or target spouse. (not apply in civil)
- Witness spouse controls! The witness spouse may waive privilege and testify.
- Applies to information (ALL not just comms) obtained before the marriage
- Lasts for the life of the marriage
Exceptions:
- One spouse commits a crime against the other or a child in the house, or
- Both spouses are suspected of jointly committing a crime
When the marriage ends re: spousal privilege
Must actually be legally dissolved, not just separated
Marital Communications Privileges
- Applies to all judicial proceedings, and both spouses
- Both spouses control, ie. both must waive the right
- Protects marital confidences even after the marriage ends
- Only protects communications during the marriage
- in confidence (young children around may be exception)
All these spousal privilege hypos: key distinction*
- IF SPOUSE ABOUT TO TESTIFY WHAT SHE SAW/SAID: Privilege issue
- IF COP ABOUT TO TESTIFY RE WHAT SPOUSE SAW/SAID: Hearsay issue
Psychotherapist-Patient Privilege
Applies to social workers, psychiatrists and psychologists as well.
Same as A/C privilege but only about diagnosis or treatment of a mental or emotional problem.
Dangerous patient exception is a jurisdictional split, similar to crime-fraud exception. May be pierced for sufficient need.
Privilege Against Self-Incrimination
• Available to any witness in any proceeding • Protects people, not organizations big: 1. Applies only to criminal liability 2. Applies only to testimony
Clergy-Communicant Privilege
- Communications
- Made in confidence
- By a person seeking spiritual counseling
- To a member of the clergy
No federal exception for crime/fraud
Communicant controls the privilege
Crawford notes on police
Testimonial evidence can be even a police statement. Need to follow the rules!
- Available now for cross
- Was available for cross in the past
