Privilege

Question 1

Privileges: federal court action arising under federal substantive law

Answer 1

1) privileges governed by federal common law

2) pretty much everything on bar except for doctor/patient confidentiality

Question 2

Privileges: federal court action under diversity jurisdiction (Erie)

Answer 2

1) applies the state privilege, competency, burden of proof, and presumption rules
2) pretty much everything on bar including doctor/patient confidentiality

Question 3

Attorney-Client Privilege: elements

Answer 3

1) confidential communication
2) between attorney and client
3) made during professional legal consultation
4) unless waived by client
5) or exception applies

Question 4

Attorney-Client Privilege: confidential communication

Answer 4

1) C must intend confidentiality
2) With joint clients, communications with counsel concerning the common interest are privileged to 3rd parties BUT does not apply between them

Question 5

Attorney-Client Privilege: communication

Answer 5

doesn’t apply to underlying information, preexisting documents, or physical evidence

Question 6

Attorney-Client Privilege: attorney

Answer 6

1) member of the bar or a person that the client reasonably believes is a member of the bar
2) representative of the attorney: agent reasonably necessary to facilitate the provision of legal services

Question 7

Attorney-Client Privilege: waiver

Answer 7

1) voluntary waiver
2) subject matter waiver
3) inadvertent waiver

Question 8

Attorney-Client Privilege: voluntary waiver

Answer 8

1) only the client has the power to waive the privilege

2) applies after client’s death and only estate may waive

Question 9

Attorney-Client Privilege: subject matter waiver

Answer 9

Waiver of some communications will also waive other communications when:

1) partial disclosure is intentional
2) disclosed and undisclosed communications concern the same subject matter
3) fairness requires that the disclosed and undisclosed communications be considered together

Question 10

Attorney-Client Privilege: inadvertent waiver

Answer 10

Accidental disclose will not waive privilege so long as:

1) took reasonable steps to prevent
2) takes reasonable to correct

Question 11

Attorney-Client Privilege: exceptions

Answer 11

1) future crime or fraud
2) client puts legal advice in issue
3) attorney-client dispute (legal malpractice, fee disputes)

Question 12

Doctor-Patient Privilege: elements

Answer 12

1) confidential communication or information acquired by doctor from patient
2) for purpose of diagnosis or treatment of medical condition
3) applies to people certified to treat mental/emotional illness like social workers

Question 13

Doctor-Patient Privilege: state/federal

Answer 13

1) in federal courts only to physiotherapists or those certified to treat mental/emotional illness like social workers
2) in state courts or in diversity jurisdiction to general M.D.s as well

Question 14

Doctor-Patient Privilege: exception

Answer 14

1) Where the plaintiff expressly or implicitly puts physical or mental condition in issue
2) EXAMPLES: PI claims, insanity defenses

Question 15

Spousal Immunity

Answer 15

1) Criminal cases only
2) spouse can be compelled to testify about ANYTHING against the defendant spouse
3) witness spouse holds privilege
4) doesn’t apply once divorced

Question 16

Confidential communication between spouses

Answer 16

1) civil and criminal cases
2) spouse cannot disclose confidential communications made by one to the other during the marriage
3) both spouses hold the privilege
4) continues after divorce

Question 17

Spousal privileges: exceptions

Answer 17

1) communications or acts in furtherance of jointly-perpetrated future criminal activity
2) communications or acts destructive of family unit (abuse)
3) in litigation between spouses themselves (divorce, child custody)

Question 18

Spousal privileges: 2 kinds

Answer 18

1) spousal immunity: criminal

2) confidential communications between spouses: both civil and criminal