Privilege Flashcards
Clyde Barker was worried about setting off a bomb in a public area. He went to a lawyer who was well known in the animal rights movement. He paid the lawyer a fee for a consultation about the legal issues presented in setting off the bombs as planned. To obtain the advice, he gave the lawyer all of the details of the plan. The lawyer gave him legal advice. The plaintiffs suspect that such a meeting occurred and subpoenaed the lawyer for a deposition. Barker filed a motion opposing the deposition, claiming attorney client privilege barred the lawyer from testifying. The lawyer states that he will not testify, asserting the attorney-client privilege. He refuses to even acknowledge that Barker was a client. The plaintiffs argue that the lawyer cannot assert this privilege. How should the judge rule?
Not asking for way to not do this illegally; careful about what they are asking you
Probably asking about the consequences of a course of conduct which is not crime-product exception – it is advice of counsel
Probably have to say that he is the client
Assume that the judge orders the lawyer to identify his client, and then orders Barker to appear at the hearing.
a. At the hearing, who has the burden of proving the privilege exists? b. What must the person with the burden prove to the court to succeed in stopping the deposition? c. As the opponent to the privilege, what arguments will you raise?
a. At the hearing, who has the burden of proving the privilege exists?
Barker the defendant Hold the burden
b. What must the person with the burden prove to the court to succeed in stopping the deposition?
Must prove he is a client; other is an attorney; a communication existed between them; confidentiality existed; and the purpose of facilitaing professional legal services to the client
Wigmore test 6 factors
c. As the opponent to the privilege, what arguments will you raise?
Commucation was not made in confidence; communication may be confidential by the facts are not
After hearing Barker’s statements, the lawyer asked Barker to return in a week, so the lawyer would have time to research the issues and properly answer Barker’s questions. In the week the lawyer conducted legal research and obtained news articles about similar incidents. After gathering all these materials the lawyer prepared a preliminary draft of his opinion which he circulated to his two other law partners for their thoughts. The law partners made suggestions, and after reviewing these, the lawyer prepared a final opinion. The subpoena called not only for testimony, but also for the production of all documents. The lawyer acknowledged the existence of documents in Barker’s client file, but refused to provide them.
a. What privilege or privileges may the lawyer assert? b. Which person actually has standing to assert the privilege? c. Who will have the burden of proof? d. What elements will need to be proven to support the claim of privilege? e. As the opponent of this claim, what will you try to show?
a. What privilege or privileges may the lawyer assert?
Attorney/client privilege and work product
b. Which person actually has standing to assert the privilege?
Both the client and attorney
Attorney/client privilege only client
Work product attorney and client
c. Who will have the burden of proof?
Proponent has burden of proof – person asserting the privilege
d. What elements will need to be proven to support the claim of privilege?
Done in anticipating of litigation; must be an attorney/client relationship; opinion work to reflect the mental process of the lawyer or ordinary work product to include the raw data to form the opinion
e. As the opponent of this claim, what will you try to show?
Reveal underlying information; involved other 3rd parties but all employees of same law office; crime fraud
Need?
Subsequent to the explosions AB’s Board of Directors met. The subject of the contract with the Illinois Central Railroad was discussed. One of the directors, Robert Marshall, was furious that more was not done to protect the public. Marshall was also the corporate counsel for AB. Because Marshall believed he had a duty as a corporate director to investigate wrongdoing by the business, he determined to conduct an investigation of AB’s conduct. At a subsequent meeting, Marshall presented his report to the board with a demand that the CEO and the corporation enter guilty pleas to any criminal case and admit liability in any civil case. The meeting quickly turned very hostile and Marshall’s suggestions were not followed. The civil plaintiffs specifically request Marshall’s report in their pre-trial discovery requests and give notice that they will depose Marshall. AB objects this violates AB’s attorney-client privilege. What considerations must the judge take into account in ruling on AB’s objections?
Corporate context; issue that must be resolved before court will even consider this: acting in his capacity as a DIRECTOR; fact that is lawyer does not automatically mean there is a privilege; what role was he acting in when he gave advice
Flora Welch claims that her husband, Michael Welch, was killed in the blast while touring the AB site. A number of bodies were found at the site which could not be identified because of burns and the action of chemicals on the bodies. Welch sues AB. Shortly before the suit, AB finds Michael Welch living in Costa Rica with his mistress. AB wishes to call Michael Welch to testify that he and Flora Welch discussed divorce, but directly after the blast instead agreed that he could take their joint bank account and leave and Flora Welch would claim his life insurance, plus whatever she could get by suing AB. Flora Welch asserts the Adverse Spousal Testimony privilege. How should the judge rule and why?
Adverse Privilege only applies to a criminal case
Only testifying spouse can claim the privilege
Assume the judge denies her request, Flora Welch then asserts the Marital Communications privilege. How should the judge rule and why?
During the scheme, marriage was arguably invalid; live with mistress
Michael Welch obtained an uncontested divorce in Costa Rica, which will be honored anywhere in the United States, before he was called to testify. Does this affect either of the judge’s rulings above?
Divorce has no effect on communication confidential privilege Survives divorce
If there is an adverse spousal testimony, it would end it because divorce ends the privilege
Defendant Garnosio plans on presenting the testimony of his high school guidance counselor to help him try to assert that he lacked the mental capacity required to form the specific intent to commit the crimes. Learning of this, the government finds a psychiatrist who treated Garnosio for depression in 2007. The government wishes to call the psychiatrist (who is an MD) to present his conversations with Garnosio during treatment which will help to negate the testimony of the guidance counselor. Garnosio objects that this violates the physician-patient privilege. How should the judge rule?
Psychiatrist privilege does exist in federal law; patient is holder of the privilege; federal state rules has no doctor privilege; make right objection
Make sure you assert the correct privilege
Clyde Barker has feelings of guilt, so as a true Pastafarian he consults with a minister of the Church of the Flying Spaghetti Monster seeking spiritual solace. He confesses to the minister. The civil litigants learn of this and subpoena the minister for a deposition. Barker opposes this on the basis of the priest/penitent privilege. How should the judge rule?
Don’t litigate validity of religion not a determination of the court
