Privileges Flashcards
How do you know if state or federal privilege law applies?
Fed - Cases arising under federal law
State - Diversity jurisdiction cases
What are the elements of the attorney-client privilege?
- Confidential communications
- Between atty / client (or agent of either)
- Made during professional, legal consultation
- Unless waived by CLIENT
- Or an exception applies
What is a confidential communication?
Any communication made when the client intends confidentiality and reasonable expects confidentiality
What is the joint client rule?
If both clients share an interest and consult the same attorney, communications are privileged as to third parties. It does not apply to a dispute between the two clients.
How is the attorney-client privileged waived?
Voluntarily by the CLIENT
Does waiver as to some communications waive the privilege to others?
Yes, when:
- Disclosure is intentional
- Disclosed / Undisclosed communications are on the same subject
- Fairness requires
Can an inadvertent waiver be revoked?
Yes, if the privilege holder took reasonable steps to prevent disclosure and takes reasonable steps to correct the error
What is not covered by the attorney-client privilege?
- Aid sought for future crimes / fraud
- Client puts legal advice in issue
- Attorney-client dispute
What is covered by the physician-patient privilege?
- Confidential communications that patient told physician
- For the purpose of diagnosis or treatment of a medical condition
- Applies also to psychotherapy
Is the physician-patient privilege grounded in the common law?
No, it must be created by statute
When is the physician-patient privilege lost?
When patient expressly or impliedly puts their medical health in issue
When is the physician-patient privilege waived?
When patient says something in the presence of third party
What is the spousal privilege? **
A witness spouse may not be compelled to testify about anything against a defendant spouse.
NY does not recognize the spousal privilege
Who hold the spousal privilege?
The witness spouse (can be waived over D spouse’s objection)
Must the parties still be married at the time of trial?
Yes - remember, the purpose is to protect marital harmony
What is the confidential communications privilege?
A spouse may not testify regarding confidential communications made to each other during the marriage without consent
Who holds the confidential communications privilege?
Both spouses (and either can invoke)
Is conduct covered by the confidential communications privilege?
Yes, if the conduct was meant to communicate something to the other spouse
How can the privilege be waived?
By making a communication in the presence of a third party (must know or reasonably know that a third party will hear it)
What are the exceptions to the confidential communications privilege?
- Communications in furtherance of a jointly perpetrated future crime / fraud
- Communications / acts destructive of the family unit
- No privilege in civil litigation between the spouses themselves
