Privileges

Question 1

General Approach to Privilege questions

Answer 1

(1) Identify the privilege, the scope of the privilege and its holder

(2) Determine if there are exceptions, waivers or limitations that apply

(3) Are you in federal court? if so, only apply privileges that are recognized (unless state law applies in a federal diversity case, then apply state law privileges as well)

Question 2

What privileges to federal courts recognize?

Answer 2

(1) attorney client
(2) spousal immunity
(3) marital communications
(4) psychotherapist/social worker-client
(5) clergy-penitent
(6) governmental privileges

NOT physician-patient privilege

Question 3

When do state law privileges apply?

Answer 3

In a federal diversity case where state law applies

Question 4

What do you have to remember for attorney client privilege?

Answer 4

(1) when it applies / doesn’t apply

(2) what it requires

(3) when it ends

(3) corporate clients have special rules

Question 5

when does attorney client privilege apply?

Answer 5

confidential communications between attorney, or attorney rep (member of the bar) and client (or client’s reps), made during professional legal consultation (because client seeks professional services of the attorney), unless privilege is waived or an exception applies)

disclosures made before the attorney accepts or declines cases are covered by the privilege

Question 6

how long does attorney client privilege last

Answer 6

forever - termination of the attorney-client relationship does not terminate the privilege, it survives death.

Question 7

special attorney client rules for corporate clients

Answer 7

Corporations are “clients” within the meaning of the privilege

statements made by corporate officials or employees to an attorney are protected if the employees were authorized or directed by the corporation to make such statements.

Question 8

when does attorney client privilege NOT apply

Answer 8

(1) when client seeks legal advice in aid of crime or fraud

(2) parties claiming through the same deceased client

(3) dispute between attorney and client [malpractice, attorney sues client for unpaid fee, etc. ]

(4) client puts legal services at issue

(5) NON confidential information

Question 9

when does physician-patient privilege not apply

Answer 9

(1) communication relevant to dispute between physician and patient [malpractice, etc.]

(2) patient puts physical condition at issue [personal injury lawsuit]

(3) when you are in federal court [many states recognize it]

(4) physician’s assistance was sought to aid wrongdoing

(5) contractual waiver

Question 10

psychotherapist/social worker-client relationship - need to know

Answer 10

privilege for confidential communications between a psychotherapist (psychiatrist or psychologist) or licensed social worker and their patient/client that applies when
(1) patient/client must have intended their communication to be confidential, and
(2) the purpose of the communication must have been to facilitate professional services.

Question 11

Spousal immunity - what is it? When does it apply? Who has the privilege?

Answer 11

What is it: privilege not to testify in a criminal case

Who has the privilege: witness-spouse under federal rules

when does it apply:
(1) in criminal cases only
(2) can only be asserted during a valid marriage and that marriage must exist at time of trial (but matters at issue may have occurred prior to marriage)

Question 12

What is confidential marital communications privilege, to whom does it apply, and when does it apply?

Answer 12

What is it: privilege against revealing confidential communications made during marriage

To whom does it apply: both spouses

When does it apply:
(1) civil and criminal cases
(2) communication must have been made during a valid marriage, but divorce will not terminate the privilege retroactively

when does it not apply:
(1) when communications are not made in reliance upon intimacy of the marital relationship (no threats or abuse or statements made in presence of third parties not counting young children who live in the home)

Question 13

What are the exceptions to marital privileges (confidential marital communications & spousal immunity)?

Answer 13

Neither privilege applies in:

(1) legal actions between the spouses
(2) cases involving crimes against testifying spouse or either spouse’s children
(3) in furtherance of joint crime or fraud

Question 14

Clergy-penitent privilege

Answer 14

Federal courts and many states recognize a privilege for statements made to a member of the clergy, the elements of which are very similar to the attorney-client privilege.

penitent must have made the communication to the clergy member in the clergy member’s capacity as a spiritual adviser.

Question 15

accountant-client privilege

Answer 15

Many states recognize a privilege for statements made to an accoun- tant, and the elements of this privilege are very similar to the attor- ney-client privilege. However, there is no federal accountant-client privilege.

Question 16

professional journalist privilege

Answer 16

There is no constitutional right for a professional journalist to protect their source of information; only certain states recognize such a privi- lege.

Question 17

governmental privileges

Answer 17

Official information not otherwise open to the public may be privi- leged. The government also holds a privilege that protects the identity of an informer (someone who has provided the government with details of a potential crime). The privilege is waived if the inform- er’s identity is voluntarily disclosed by a privilege holder (an appro- priate government representative).

Question 18

how to determine whether federal or state privilege law should be applied in a particular case in federal court

Answer 18

(1) In a federal court case arising under federal substantive law (all civil cases arising under the Constitution or federal statutes, and all criminal cases), privileges are governed by federal common law.

(2) In a federal court case based on diversity jurisdiction, where state substantive law applies to parties’ claims and defenses (the Erie doctrine, covered in Federal Civil Procedure), the federal court must apply privilege law of the state.

Question 19

what are the general requirements of asserting privileges

Answer 19

(1) statement must be made in confidence

(2) privilege can only be asserted by holder

(3) neither counsel nor judge may comment on someone’s claim of privilege

Question 20

effect of eavesdroppers

Answer 20

privilege not destroyed because it was overheard by someone whose presence is unknown to parties — modern few says that even eavesdropper is prohibited from testifying

Question 21

waiver of privilege - how to

Answer 21

(1) you fail to claim privilege

(2) privilege holder voluntarily discloses privileged matter

or

(3) contractual provision waiving in advance the right to claim a privilege

*** A privilege is not waived when someone wrongfully discloses information without the privilege holder’s consent. Similarly, a waiver by one joint holder does not
affect the right of the other holder to assert the privilege.

Question 21

what is non confidential information

Answer 21

pre-existing documents

physical evidence

Question 22

to what extent are communications through agents privileged through attorney client privilege

Answer 22

Agents = administrative assistants, messengers, accountants, etc. are are confidential and covered by the privilege if necessary to transmit information between the attorney and client

CONSULTING DOCTOR [attorny requests doctor to examine client]
the attorney-client privilege will apply to these communications between the client and a consulting doctor, as long as the doctor is not called as a testifying expert.

Question 23

joint client rule

Answer 23

where attorney acts for two parties with a common interest there is no privilege between the two parties [but there is for third parties]

Question 24

rule of attorney work product rule

Answer 24

documents prepped by attorney for own use in a case are not subj to discovery except in case of necessity

Question 25

what is scope of physician-patient privilege

Answer 25

CONFIDENTIAL information [not in presence of third parties] acquired by a physician is privileged if:

• There was a professional relationship between the physician and patient for the purposes of medical treatment;
• The information was acquired for the purpose of diagnosis or treatment; and
• The information was necessary for diagnosis or treatment
  (non- medical information—for example, details of who was at fault in an accident—is not privileged)

Question 26

state rules on physician patient relationship

Answer 26

many states do not allow this privilege in criminal cases or in felony cases

Question 27

when does psychotherapist and social worker - patient privilege not apply

Answer 27

where the patient puts their mental condition at issue in the case (for example, by filing a claim for emotional injuries or asserting an insanity defense).

Question 28

what are the privileges relating to marriage

Answer 28

(1) spousal testimonial privilege (spousal immunity)

(2) privilege for confidential marital communications

Question 29

may witness spouse testify against defendant-spouse?

Answer 29

yes, she can if she wants to [because she holds the privilege]

Question 30

how can defendant prevent his wife from testifying against him

Answer 30

(1) ask her to invoke spousal immunity

(2) object if she testifies on basis of confidential marital communications privilege

Question 31

when are marital communications confidential?

Answer 31

presumed confidential unless threats or made in front of third party

Question 32

does the application of attorney client privilege hinge on payment for services?

Answer 32

nope

Question 33

rule about inadvertent disclosures under AC privilege

Answer 33

an inadvertent disclosure will not operate as a waiver of AC privilege if the holder of the privilege promptly takes reasonable steps to rectify the error

this rule applies to disclosures made in a federal proceeding = FRE will apply, even in diversity case