Priveleges

Question 1

Attorney Client Privelege

Answer 1

Definition: Confidential communications between attorney and client made during professional legal consultation are privileged from disclosure unless waived by the client or the representative of the deceased client. (Privilege survives death of client.)

ELEMENTS:

1. The right parties: Attorney or Client or Representatives of both
2. “Confidential communication” (not physical evidence or preexisting documents)
3. “Professional legal relationship” which means

• intent by client to establish a professional legal relationship (retainer negotiations are covered).
• predominantly legal advice must be sought.

Exceptions: Situations where privilege does not apply:

1. Future crime or fraud: attorney’s aid was sought in commission or planning of crime or fraud
2. At issue exception - when client or patient affirmatively puts the communication in issue as part of a claim or defense in nlitigation.
3. Disputes between the parties to the professional relationship (Actions for fee or malpractice)
4. Joint client exception - where 2 or more parties communicate with attorney about a matter of common interest. No privilege between them.

Question 2

Attorney Client Privelege-ELEMENTS

Answer 2

ELEMENTS:

1. The right parties: Attorney or Client or Representatives of both
2. “Confidential communication” (not physical evidence or preexisting documents)
3. “Professional legal relationship” which means:

• intent by client to establish a professional legal relationship (retainer negotiations are covered).
• predominantly legal advice must be sought.

Exceptions: Situations where privilege does not apply:

• Future crime or fraud: attorney’s aid was sought in commission or planning of crime or fraud
• At issue exception - when client or patient affirmatively puts the communication in issue as part of a claim or defense in nlitigation.
• Disputes between the parties to the professional relationship (Actions for fee or malpractice)
• Joint client exception - where 2 or more parties communicate with attorney about a matter of common interest. No privilege between them.

Question 3

Attorney Client Privelege-Exceptions

Answer 3

Exceptions: Situations where privilege does not apply:

• Future crime or fraud: attorney’s aid was sought in commission or planning of crime or fraud
• At issue exception - when client or patient affirmatively puts the communication in issue as part of a claim or defense in nlitigation.
• Disputes between the parties to the professional relationship (Actions for fee or malpractice)
• Joint client exception - where 2 or more parties communicate with attorney about a matter of common interest. No privilege between them.

Question 4

Physician/Psychiatrist/Social Worker Patient Privelege

PA DISTINCTION

Answer 4

Definition: The patient has a privilege against disclosure of confidential information acquired by the physician/psychiatrist or licensed social worker in a professional relationship entered into for the purpose of obtaining treatment. Most federal counts recognize only a psychiatrist-patient privilege and decline to recognize an ordinary doctor-patient privilege when applying federal law.

Key Elements

• Patient must be seeking treatment.
• Information acquired must be confidential and necessary to facilitate professional treatment.

Waiver

• Waiver of the physician patient privilege is common especially because of the Patient Litigant Exception. Privilege is waived if patient sues or defends by putting physical or mental condition in issue.

PA DISTINCTION:

• No Social Worker
• Physician privelege less protective

Question 5

Dual Spousal Priveleges

Answer 5

There are two spousal privileges with different rationales. They are:

1. Spousal Immunity Privilege (protects one spouse from testifying against other spouse in a criminal case)
2. Confidential Marital Communications Privilege (protects the disclosure of confidential information in a marriage)

Neither applies to intra-family injury case (assault of spouse or child, incest, child abuse).

Question 6

Spousal Immunity Privilege

PA DISTINCTION

Answer 6

Definition: One spouse can’t be forced to give adverse testimony against the other in a criminal case.

REQUIREMENTS:

1. Valid marriage at time of trial.
2. Protects against any and all testimony.
3. Holder of Privilege is witness spouse, not party spouse.
4. Applies only in a criminal case.

PA DISTINCTION: applies in civil cases as well as criminal

Question 7

Confidential Marital Communications Privilege

Answer 7

Definition: A husband or a wife shall not be required or, without the consent of the other, shall not be allowed to disclose a confidential communication made by one to the other during the marriage.

Requirements: (and differences from spousal immunity).

1. Married not necessarily at time of trial but at time of protected communication (this privilege outlasts the marriage).
2. Protects only confidences, not all testimony.
3. Holder of privilege is either spouse, not just witness spouse.
4. Privilege applies to all cases, civil as well as criminal.

Question 8

Applicability of State Law in Federal Court

Answer 8

Three situations in which state evidence law will apply in federal court IF state substantive law applies (as in the typical diversity jurisdiction case).

In civil actions or proceedings with respect to an element of a claim or defense as to which state law applies the rule of decision (i.e., state substantive law applies), state law will apply regarding

1. Presumptions and burdens of proof
2. Competency of witnesses
3. Privileges

Federal privilege law in federal question or in federal criminal cases shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience.