OEC 500s Flashcards
ORS 40.225
Rule 503. Lawyer-client privilege
(1) As used in this section, unless the context requires otherwise:
(a) “Client” means:
(A) A person, public officer, corporation, association or other organization or entity, either public or private, who is rendered professional legal services by a lawyer, or who consults a lawyer with a view to obtaining professional legal services from the lawyer.
(B) A person, public officer, corporation, association or other organization or entity, either public or private, who consults a lawyer referral service with a view to obtaining professional legal services from a lawyer.
(b) “Confidential communication” means a communication not intended to be disclosed to third persons other than those to whom disclosure is in furtherance of the rendition of professional legal services to the client or those reasonably necessary for the transmission of the communication.
(c) “Lawyer” means a person authorized, or reasonably believed by the client to be authorized, to practice law in any state or nation.
(d) “Lawyer referral service” means an entity that, as a regular part of its business, refers potential clients to lawyers, including but not limited to a public nonprofit entity sponsored or operated by the Oregon State Bar.
(e) “Representative of the client” means:
(A) A principal, an officer or a director of the client; or
(B) A person who has authority to obtain professional legal services, or to act on legal advice rendered, on behalf of the client, or a person who, for the purpose of effectuating legal representation for the client, makes or receives a confidential communication while acting in the person’s scope of employment for the client.
(f) “Representative of the lawyer” means one employed to assist the lawyer in the rendition of professional legal services, but does not include a physician making a physical or mental examination under ORCP 44.
(2) A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client:
(a) Between the client or the client’s representative and the client’s lawyer or a representative of the lawyer;
(b) Between the client’s lawyer and the lawyer’s representative or the client’s lawyer referral service;
(c) By the client or the client’s lawyer to a lawyer representing another in a matter of common interest;
(d) Between representatives of the client or between the client and a representative of the client;
(e) Between lawyers representing the client; or
(f) Between the client or a representative of the client and a lawyer referral service.
(3) The privilege created by this section may be claimed by the client, a guardian or conservator of the client, the personal representative of a deceased client, or the successor, trustee, or similar representative of a corporation, association, or other organization, whether or not in existence. The person who was the lawyer or lawyer referral service or the lawyer’s representative at the time of the communication is presumed to have authority to claim the privilege but only on behalf of the client.
(4) There is no privilege under this section:
(a) If the services of the lawyer or lawyer referral service were sought or obtained to enable or aid anyone to commit or plan to commit what the client knew or reasonably should have known to be a crime or fraud;
(b) As to a communication relevant to an issue between parties who claim through the same deceased client, regardless of whether the claims are by testate or intestate succession or by inter vivos transaction;
(c) As to a communication relevant to an issue of breach of duty by the lawyer or lawyer referral service to the client or by the client to the lawyer or lawyer referral service;
(d)As to a communication relevant to an issue concerning an attested document to which the lawyer or lawyer referral service is an attesting witness; or
(e) As to a communication relevant to a matter of common interest between two or more clients if the communication was made by any of them to a lawyer retained or consulted in common, when offered in an action between any of the clients.
(5) Notwithstanding ORS 40.280 (Rule 511. Waiver of privilege by voluntary disclosure), a privilege is maintained under this section for a communication made to the office of public defense services established under ORS 151.216 (Duties) for the purpose of seeking preauthorization for or payment of nonroutine fees or expenses under ORS 135.055 (Compensation and expenses of appointed counsel).
(6) Notwithstanding subsection (4)(c) of this section and ORS 40.280 (Rule 511. Waiver of privilege by voluntary disclosure), a privilege is maintained under this section for a communication that is made to the office of public defense services established under ORS 151.216 (Duties) for the purpose of making, or providing information regarding, a complaint against a lawyer providing public defense services.
(7) Notwithstanding ORS 40.280 (Rule 511. Waiver of privilege by voluntary disclosure), a privilege is maintained under this section for a communication ordered to be disclosed under ORS 192.311 (Definitions for ORS 192.311 to 192.478) to 192.478 (Exemption for Judicial Department). [1981 c.892 §32; 1987 c.680 §1; 2005 c.356 §1; 2005 c.358 §1; 2007 c.513 §3; 2009 c.516 §1; 2018 c.2 §1]
ORS 40.227
Rule 503-1. Right of client to communicate with lawyer
* inadmissibility of evidence obtained or disclosed without client’s consent
(1) As used in this section, “client,” “confidential communication,” “lawyer” and “representative of the lawyer” have the meanings given those terms in ORS 40.225 (Rule 503. Lawyer-client privilege).
(2) A client has a right to privately communicate with the client’s lawyer and representatives of the lawyer.
(3) Intentionally left blank —Ed.
(a) Any evidence derived from a confidential communication that is privileged under ORS 40.225 (Rule 503. Lawyer-client privilege), between a client and the client’s lawyer or a representative of the lawyer, is inadmissible in any proceeding to which the client is a party if the confidential communication was obtained or disclosed without the consent of the client.
(b) Paragraph (a) of this subsection does not apply to evidence offered by the client. [2019 c.169 §1]
Note: 40.227 (Rule 503-1. Right of client to communicate with lawyer) was enacted into law by the Legislative Assembly but was not added to or made a part of ORS chapter 40 or any series therein by legislative action. See Preface to Oregon Revised Statutes for further explanation.
ORS 40.230
Rule 504. Psychotherapist-patient privilege
(1) As used in this section, unless the context requires otherwise:
(a) “Confidential communication” means a communication not intended to be disclosed to third persons except:
(A) Persons present to further the interest of the patient in the consultation, examination or interview;
(B) Persons reasonably necessary for the transmission of the communication; or
(C) Persons who are participating in the diagnosis and treatment under the direction of the psychotherapist, including members of the patient’s family.
(b) “Patient” means a person who consults or is examined or interviewed by a psychotherapist.
(c) “Psychotherapist” means a person who is:
(A) Licensed, registered, certified or otherwise authorized under the laws of any state to engage in the diagnosis or treatment of a mental or emotional condition; or
(B) Reasonably believed by the patient so to be, while so engaged.
(2) A patient has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purposes of diagnosis or treatment of the patient’s mental or emotional condition among the patient, the patient’s psychotherapist or persons who are participating in the diagnosis or treatment under the direction of the psychotherapist, including members of the patient’s family.
(3) The privilege created by this section may be claimed by:
(a) The patient.
(b) A guardian or conservator of the patient.
(c) The personal representative of a deceased patient.
(d) The person who was the psychotherapist, but only on behalf of the patient. The psychotherapist’s authority so to do is presumed in the absence of evidence to the contrary.
(4) The following is a nonexclusive list of limits on the privilege granted by this section:
(a) If the judge orders an examination of the mental, physical or emotional condition of the patient, communications made in the course thereof are not privileged under this section with respect to the particular purpose for which the examination is ordered unless the judge orders otherwise.
(b) There is no privilege under this rule as to communications relevant to an issue of the mental or emotional condition of the patient:
(A) In any proceeding in which the patient relies upon the condition as an element of the patient’s claim or defense; or
(B) After the patient’s death, in any proceeding in which any party relies upon the condition as an element of the party’s claim or defense.
(c) Except as provided in ORCP 44, there is no privilege under this section for communications made in the course of mental examination performed under ORCP 44.
(d) There is no privilege under this section with regard to any confidential communication or record of such confidential communication that would otherwise be privileged under this section when the use of the communication or record is allowed specifically under ORS 426.070 (Initiation), 426.074 (Investigation), 426.075 (Notice and records of treatment prior to hearing), 426.095 (Commitment hearing), 426.120 (Examination report) or 426.307 (Court hearing). This paragraph only applies to the use of the communication or record to the extent and for the purposes set forth in the described statute sections. [1981 c.892 §33; 1987 c.903 §1]
ORS 40.235
Rule 504-1. Physician-patient privilege
(1) As used in this section, unless the context requires otherwise:
(a) “Confidential communication” means a communication not intended to be disclosed to third persons except:
(A) Persons present to further the interest of the patient in the consultation, examination or interview;
(B) Persons reasonably necessary for the transmission of the communication; or
(C) Persons who are participating in the diagnosis and treatment under the direction of the physician, including members of the patient’s family.
(b) “Patient” means a person who consults or is examined or interviewed by a physician.
(c) Intentionally left blank —Ed.
(A) “Physician” means a person authorized and licensed or certified to practice medicine, podiatry or dentistry in any state or nation, or reasonably believed by the patient so to be, while engaged in the diagnosis or treatment of a physical condition.
(B) “Physician” includes licensed or certified naturopathic and chiropractic physicians and dentists.
(2) A patient has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications in a civil action, suit or proceeding, made for the purposes of diagnosis or treatment of the patient’s physical condition, among the patient, the patient’s physician or persons who are participating in the diagnosis or treatment under the direction of the physician, including members of the patient’s family.
(3) The privilege created by this section may be claimed by:
(a) The patient;
(b) A guardian or conservator of the patient;
(c) The personal representative of a deceased patient; or
(d) The person who was the physician, but only on behalf of the patient. Such person’s authority so to do is presumed in the absence of evidence to the contrary.
(4) The following is a nonexclusive list of limits on the privilege granted by this section:
(a) If the judge orders an examination of the physical condition of the patient, communications made in the course thereof are not privileged under this section with respect to the particular purpose for which the examination is ordered unless the judge orders otherwise.
(b) Except as provided in ORCP 44, there is no privilege under this section for communications made in the course of a physical examination performed under ORCP 44.
(c) There is no privilege under this section with regard to any confidential communication or record of such confidential communication that would otherwise be privileged under this section when the use of the communication or record is specifically allowed under ORS 426.070 (Initiation), 426.074 (Investigation), 426.075 (Notice and records of treatment prior to hearing), 426.095 (Commitment hearing), 426.120 (Examination report) or 426.307 (Court hearing). This paragraph only applies to the use of the communication or record to the extent and for the purposes set forth in the described statute sections. [1981 c.892 §33a; 1987 c.903 §2; 2005 c.353 §1; 2013 c.129 §3]
ORS 40.240
Rule 504-2. Nurse-patient privilege
A licensed professional nurse shall not, without the consent of a patient who was cared for by such nurse, be examined in a civil action or proceeding, as to any information acquired in caring for the patient, which was necessary to enable the nurse to care for the patient. [1981 c.892 §33b]
ORS 40.245
Rule 504-3. School employee-student privilege
(1) A certificated staff member of an elementary or secondary school may not be examined in any civil action or proceeding as to any conversation between the certificated staff member and a student that relates to the personal affairs of the student or family of the student, and that if disclosed would tend to damage or incriminate the student or family. Any violation of the privilege provided by this subsection may result in the suspension of certification of the professional staff member as provided in ORS 342.175 (Grounds for discipline), 342.177 (Hearing and decision on charges) and 342.180 (Appeal).
(2) A licensed school counselor regularly employed and designated in that capacity by a public school may not, without the consent of the student, be examined as to any communication made by the student to the counselor in the official capacity of the counselor in any civil action or proceeding or a criminal action or proceeding in which the student is a party concerning the past use, abuse or sale of drugs, controlled substances or alcoholic liquor. Any violation of the privilege provided by this subsection may result in the suspension of the license of the professional school counselor as provided in ORS 342.175 (Grounds for discipline), 342.177 (Hearing and decision on charges) and 342.180 (Appeal). However, in the event that the student’s condition presents a clear and imminent danger to the student or to others, the counselor shall report this fact to an appropriate responsible authority or take other emergency measures that the situation demands. [1981 c.892 §33c; 2021 c.97 §6]
ORS 40.250
Rule 504-4. Regulated social worker-client privilege
A regulated social worker under ORS 675.510 (Definitions for ORS 675.510 to 675.600) to 675.600 (Duties of board) may not be examined in a civil or criminal court proceeding as to any communication given the regulated social worker by a client in the course of noninvestigatory professional activity when the communication was given to enable the regulated social worker to aid the client, except when:
(1) The client or a person legally responsible for the client’s affairs gives consent to the disclosure;
(2) The client initiates legal action or makes a complaint against the regulated social worker to the State Board of Licensed Social Workers;
(3) The communication reveals a clear intent to commit a crime that reasonably is expected to result in physical injury to a person;
(4) The communication reveals that a minor was the victim of a crime, abuse or neglect; or
(5) The regulated social worker is a public employee and the public employer has determined that examination in a civil or criminal court proceeding is necessary in the performance of the duty of the regulated social worker as a public employee. [1981 c.892 §33d; 1989 c.721 §46; 2009 c.442 §28]
ORS 40.252
Rule 504-5. Communications revealing intent to commit certain crimes
(1) In addition to any other limitations on privilege that may be imposed by law, there is no privilege under ORS 40.225 (Rule 503. Lawyer-client privilege), 40.230 (Rule 504. Psychotherapist-patient privilege), 40.250 (Rule 504-4. Regulated social worker-client privilege), 40.264 (Rule 507-1. Certified advocate-victim privilege) or 40.274 (Rule 509-3. Legislative branch offsite process counselor privilege) for communications if:
(a) In the professional judgment of the person receiving the communications, the communications reveal that the declarant has a clear and serious intent at the time the communications are made to subsequently commit a crime involving physical injury, a threat to the physical safety of any person, sexual abuse or death or involving an act described in ORS 167.322 (Aggravated animal abuse in the first degree);
(b) In the professional judgment of the person receiving the communications, the declarant poses a danger of committing the crime; and
(c) The person receiving the communications makes a report to another person based on the communications.
(2) The provisions of this section do not create a duty to report any communication to any person.
(3) A person who discloses a communication described in subsection (1) of this section, or fails to disclose a communication described in subsection (1) of this section, is not liable to any other person in a civil action for any damage or injury arising out of the disclosure or failure to disclose. [2001 c.640 §2; 2007 c.731 §4; 2015 c.265 §3; 2019 c.604 §18]
Note: 40.252 (Rule 504-5. Communications revealing intent to commit certain crimes) was added to and made a part of 40.225 (Rule 503. Lawyer-client privilege) to 40.295 (Rule 514. Effect on existing privileges) by legislative action but was not added to any smaller series therein. See Preface to Oregon Revised Statutes for further explanation.
ORS 40.255
Rule 505. Spousal privilege
(1) As used in this section, unless the context requires otherwise:
(a) “Confidential communication” means a communication by a spouse to the other spouse and not intended to be disclosed to any other person.
(b) “Marriage” means a marital relationship between two individuals, legally recognized under the laws of this state.
(c) “Spouse” means an individual in a marriage with another individual.
(2) In any civil or criminal action, a spouse has a privilege to refuse to disclose and to prevent the other spouse from disclosing any confidential communication made by one spouse to the other during the marriage. The privilege created by this subsection may be claimed by either spouse. The authority of the spouse to claim the privilege and the claiming of the privilege is presumed in the absence of evidence to the contrary.
(3) In any criminal proceeding, neither spouse, during the marriage, shall be examined adversely against the other as to any other matter occurring during the marriage unless the spouse called as a witness consents to testify.
(4) There is no privilege under this section:
(a) In all criminal actions in which one spouse is charged with bigamy or with an offense or attempted offense against the person or property of the other spouse or of a child of either, or with an offense against the person or property of a third person committed in the course of committing or attempting to commit an offense against the other spouse;
(b) As to matters occurring prior to the marriage; or
(c) In any civil action where the spouses are adverse parties. [1981 c.892 §34; 1983 c.433 §1; 2016 c.46 §1]
ORS 40.260
Rule 506. Member of clergy-penitent privilege
(1) As used in this section, unless the context requires otherwise:
(a) “Confidential communication” means a communication made privately and not intended for further disclosure except to other persons present in furtherance of the purpose of the communication.
(b) “Member of the clergy” means a minister of any church, religious denomination or organization or accredited Christian Science practitioner who in the course of the discipline or practice of that church, denomination or organization is authorized or accustomed to hearing confidential communications and, under the discipline or tenets of that church, denomination or organization, has a duty to keep such communications secret.
(2) A member of the clergy may not be examined as to any confidential communication made to the member of the clergy in the member’s professional character unless consent to the disclosure of the confidential communication is given by the person who made the communication.
(3) Even though the person who made the communication has given consent to the disclosure, a member of the clergy may not be examined as to any confidential communication made to the member in the member’s professional character if, under the discipline or tenets of the member’s church, denomination or organization, the member has an absolute duty to keep the communication confidential. [1981 c.892 §35; 1999 c.7 §1]
ORS 40.262
Rule 507. Counselor-client privilege
A professional counselor or a marriage and family therapist licensed by the Oregon Board of Licensed Professional Counselors and Therapists under ORS 675.715 (Application) shall not be examined in a civil or criminal court proceeding as to any communication given the counselor or therapist by a client in the course of a noninvestigatory professional activity when such communication was given to enable the counselor or the therapist to aid the client, except:
(1) When the client or those persons legally responsible for the affairs of the client give consent to the disclosure. If both parties to a marriage have obtained marital and family therapy by a licensed marital and family therapist or a licensed counselor, the therapist or counselor shall not be competent to testify in a domestic relations action other than child custody action concerning information acquired in the course of the therapeutic relationship unless both parties consent;
(2) When the client initiates legal action or makes a complaint against the licensed professional counselor or licensed marriage and family therapist to the board;
(3) When the communication reveals the intent to commit a crime or harmful act; or
(4) When the communication reveals that a minor is or is suspected to be the victim of crime, abuse or neglect. [1989 c.721 §20]
Note: 40.262 (Rule 507. Counselor-client privilege) was added to and made a part of 40.010 (Rule 100. Short title) to 40.585 (Rule 1008. Functions of court and jury) by legislative action but was not added to any smaller series therein. See Preface to Oregon Revised Statutes for further explanation.
ORS 40.264
Rule 507-1. Certified advocate-victim privilege
(1) As used in this section:
(a) “Certified advocate” means a person who:
(A) Has completed at least 40 hours of training in advocacy for victims of domestic violence, sexual assault or stalking, approved by the Attorney General by rule; and
(B) Is an employee or a volunteer of a qualified victim services program.
(b) “Confidential communication” means a written or oral communication that is not intended for further disclosure, except to:
(A) Persons present at the time the communication is made who are present to further the interests of the victim in the course of seeking safety planning, counseling, support or advocacy services;
(B) Persons reasonably necessary for the transmission of the communication; or
(C) Other persons, in the context of group counseling.
(c) “Qualified victim services program” means:
(A) A nongovernmental, nonprofit, community-based program receiving moneys administered by the state Department of Human Services or the Oregon or United States Department of Justice, or a program administered by a tribal government, that offers safety planning, counseling, support or advocacy services to victims of domestic violence, sexual assault or stalking; or
(B) A sexual assault center, victim advocacy office, women’s center, student affairs center, health center or other program providing safety planning, counseling, support or advocacy services to victims that is on the campus of or affiliated with a two- or four-year post-secondary institution that enrolls one or more students who receive an Oregon Opportunity Grant.
(d) “Victim” means a person seeking safety planning, counseling, support or advocacy services related to domestic violence, sexual assault or stalking at a qualified victim services program.
(2) Except as provided in subsection (3) of this section, a victim has a privilege to refuse to disclose and to prevent any other person from disclosing:
(a) Confidential communications made by the victim to a certified advocate in the course of safety planning, counseling, support or advocacy services.
(b) Records that are created or maintained in the course of providing services regarding the victim.
(3) The privilege established by this section does not apply to the disclosure of confidential communications, only to the extent disclosure is necessary for defense, in any civil, criminal or administrative action that is brought against the certified advocate, or against the qualified victim services program, by or on behalf of the victim.
(4) The privilege established in this section is not waived by disclosure of the communications by the certified advocate to another person if the disclosure is reasonably necessary to accomplish the purpose for which the certified advocate is consulted.
(5) This section does not prohibit the disclosure of aggregate, nonpersonally identifying data.
(6) This section applies to civil, criminal and administrative proceedings and to institutional disciplinary proceedings at a two-year or four-year post-secondary institution that enrolls one or more students who receive an Oregon Opportunity Grant. [2015 c.265 §2; 2017 c.256 §1]
Note: 40.264 (Rule 507-1. Certified advocate-victim privilege) was added to and made a part of 40.225 (Rule 503. Lawyer-client privilege) to 40.295 (Rule 514. Effect on existing privileges) by legislative action but was not added to any smaller series therein. See Preface to Oregon Revised Statutes for further explanation.
ORS 40.265
Rule 508a. Stenographer-employer privilege
A stenographer shall not, without the consent of the stenographer’s employer, be examined as to any communication or dictation made by the employer to the stenographer in the course of professional employment. [1981 c.892 §36]
ORS 40.270
Rule 509. Public officer privileges
A public officer shall not be examined as to public records determined to be exempt from disclosure under ORS 192.338 (Exempt and nonexempt public record to be separated), 192.345 (Public records conditionally exempt from disclosure) and 192.355 (Public records exempt from disclosure). [1981 c.892 §37]
ORS 40.272
Rule 509-1. Sign language interpreter privilege
(1) As used in this section:
(a) “Person with a disability” means a person who cannot readily understand or communicate the spoken English language, or cannot understand proceedings in which the person is involved, because of deafness or because of a physical hearing impairment or cannot communicate in the proceedings because of a physical speaking impairment.
(b) “Sign language interpreter” or “interpreter” means a person who translates conversations or other communications for a person with a disability or translates the statements of a person with a disability.
(2) A person with a disability has a privilege to refuse to disclose and to prevent a sign language interpreter from disclosing any communications to which the person with a disability was a party that were made while the interpreter was providing interpretation services for the person with a disability. The privilege created by this section extends only to those communications between a person with a disability and another, and translated by the interpreter, that would otherwise be privileged under ORS 40.225 (Rule 503. Lawyer-client privilege) to 40.295 (Rule 514. Effect on existing privileges). [1993 c.179 §2; 2007 c.70 §11]
Note: 40.272 (Rule 509-1. Sign language interpreter privilege) was added to and made a part of 40.225 (Rule 503. Lawyer-client privilege) to 40.295 (Rule 514. Effect on existing privileges) by legislative action but was not added to any smaller series therein. See Preface to Oregon Revised Statutes for further explanation.
