Pg 51

Question 1

What is involved in the dead guy exception to attorney-client privilege?

Answer 1

If a client is dead, his attorney can testify about what he said he wanted, because the client would likely want that. I.e.: the attorney can testify about what the client said he wanted done with his will

Question 2

What is involved in the dispute between attorney and client exception to attorney client privilege?

Answer 2

If a client sues his attorney for malpractice, the attorney is able to disclose what he said to the client to prove or disapprove whether the client got faulty service. The same is true if an attorney sues a client for non-payment of fees, he is able to prove up what he did for the client

Question 3

What is involved in the litigation between former joint clients as an exception to the attorney-client privilege?

Answer 3

When spouses or business partners have an attorney represent them both against a third-party, but later split up and sue each other, if they want the attorney to testify, there is no privilege in this situation.

Question 4

If opposing counsel calls the joint client’s attorney that drafted the contact for them to say that one of the clients told the attorney right after the contract was signed that he was going to bail on the deal as soon as a better one came along, then there was a falling out between the joint clients, and this litigation happened, would attorney-client privilege protect the attorney from saying anything about this?

Answer 4

No

Question 5

If an attorney reasonably believes that disclosure is necessary to prevent death or serious bodily harm, what can he do?

Answer 5

He can breach attorney-client confidentiality.

Question 6

If an attorney reasonably believes that it’s necessary to disclose confidential information in order to prevent a death or serious bodily harm, is he required to disclose it?

Answer 6

No, but he can if he wants to and he will not face discipline

Question 7

What is necessary in order for the exception to attorney-client privilege to apply if an attorney reasonably believes that disclosure is necessary to prevent death or serious bodily harm?

Answer 7

The attorney just must reasonably believe that disclosure is necessary to stop it at the time

Question 8

The exception to Attorney client privilege that relates to an attorney reasonably believing that disclosure is necessary to prevent death or serious bodily harm only applies to who?

Answer 8

Attorneys, not paralegals or others that are rightfully in on the conversation and think the defendant poses a threat to another

Question 9

Who is the holder of work product privilege?

Answer 9

The attorney. Even if the client wants the attorney to disclose his work product, the attorney can refuse

Question 10

What is the difference between things that are absolutely privileged and things that have a qualified privilege under work product privilege?

Answer 10

• absolute privilege: protects documents and materials that reflect the opinions, conclusions, research, or impressions of the attorney. The other side cannot access these under any circumstances. I.e.: research memos, draft briefs
  – qualified privilege: the attorney generates written material that doesn’t reflect his opinions or conclusions. The other side may be able to compel production of this if they can show great need.

Question 11

If an attorney records a statement of a third-party witness, is that considered to be work product privilege?

Answer 11

No, but if he takes his own notes of a witness during an interview, that is

Question 12

If an attorney records a witness’s statement of “I was at the intersection and saw defendant hit plaintiff.“ Would that be considered work product privilege?

Answer 12

No, because it is just a verbatim recording

Question 13

If an attorney takes handwritten notes while interviewing a client, and he writes “witness claims he was at the intersection and saw defendant hit plaintiff, he seems nervous and credibility is shaky.“ Would that be work product privilege?

Answer 13

Yes because it reflects the attorney’s impressions and conclusions that are absolutely privileged

Question 14

If all that an attorney wrote, was “saw the defendant hit plaintiff“ would that be considered work product privilege?

Answer 14

Yes because the attorney chose what to write down and what to exclude, so that shows what he thought was important, which counts as his impression/conclusion. Almost anything an attorney generates is his work product and is protected by the absolute privilege since nearly everything implicitly reflects the attorney’s impressions about what is important enough to write down

Question 15

When an expert witness produces a report summarizing his opinion, is that considered to be work product privilege?

Answer 15

No, so the other side is allowed to have access to it to prepare for trial.

Question 16

If an attorney gets an expert to help him develop his case or evidence, not to testify, is that considered to be work product privilege?

Answer 16

Yes, because the expert is a coach and not a player, so his reports are protected by work product privilege just like the attorney’s notes or memos

Question 17

If an attorney designates an expert to testify, then de-designates him before he is deposed, does that allow the attorney to revert the expert back to the sidelines and thus not disclose his report?

Answer 17

Yes. But if the other side takes the expert’s deposition, the expert cannot go back to the sidelines, and thus the report is fair game

Question 18

What’s the difference between the FRE and California regarding expert witnesses under work product privilege?

Answer 18

In California work product privilege extends to non-litigation matters, but federally it only deals with material prepared in preparation for litigation

Question 19

What is involved in the intentional waiver of work product privilege?

Answer 19

When a party chooses to reveal something about a privileged communication, that doesn’t waive the privilege for all parts of the communication. Disclosure on a discreet topic doesn’t open the door to everything unless the information is related and in fairness must be considered together

Question 20

If a defendant defends on laches grounds saying the plaintiff waited too long to bring suit, and the plaintiff testified that his attorney told him to hold off on filing because of the possibility of settlement, does that give the defendant the right to compel the plaintive to testify to everything that was said between the attorney and client on any topic?

Answer 20

No

Question 21

What are exceptions to work product privilege?

Answer 21

• malpractice suit by client: often the attorney’s work product like memos and drafts of briefs prove he got the law wrong or gave bad advice
  – state bar disciplinary proceeding: State bar can’t enforce its authority to discipline attorneys without access to their work product
  – crime-fraud: if an attorney researches how to best help the client commit a crime, that is not protected

Question 22

What are the different medical privileges?

Answer 22

– Psychotherapist privilege

– doctor-patient privilege

Question 23

When do medical privileges often come up?

Answer 23

In personal injury litigation

Question 24

What is involved in the psychotherapist privilege?

Answer 24

– Communication between a mental health worker and a patient
– communication made in the course of the therapist-patent relationship
– confidentiality of communication (presumed if the first two elements are met)

Question 25

What is the reason for the psychotherapist privilege?

Answer 25

It encourages frank discussions with mental health professionals so they can give the best treatment

Question 26

Who is considered to be a mental health worker that falls under psychotherapist privilege?

Answer 26

Licensed clinicians and anyone the patient reasonably believes is in a position to provide professional services

Question 27

Who is considered to be a patient under the psychotherapist privilege?

Answer 27

The current patient, anyone seeking treatment or counseling, research subjects even if they are not seeking treatment, etc.

Question 28

What are exceptions to the psychotherapist privilege?

Answer 28

– party’s mental/emotional state is at issue
– crime-tort exception
– relationship breakdown
- therapist reasonably believes disclosure is necessary
– patient under 16