Privileges Flashcards
General Approach to Privilege questions
(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)
What privileges to federal courts recognize?
(1) attorney client
(2) spousal immunity
(3) marital communications
(4) psychotherapist/social worker-client
(5) clergy-penitent
(6) governmental privileges
NOT physician-patient privilege
When do state law privileges apply?
In a federal diversity case where state law applies
What do you have to remember for attorney client privilege?
(1) when it applies / doesn’t apply
(2) what it requires
(3) when it ends
(3) corporate clients have special rules
when does attorney client privilege apply?
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
how long does attorney client privilege last
forever - termination of the attorney-client relationship does not terminate the privilege, it survives death.
special attorney client rules for corporate clients
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.
when does attorney client privilege NOT apply
(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
when does physician-patient privilege not apply
(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
psychotherapist/social worker-client relationship - need to know
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.
Spousal immunity - what is it? When does it apply? Who has the privilege?
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)
What is confidential marital communications privilege, to whom does it apply, and when does it apply?
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)
What are the exceptions to marital privileges (confidential marital communications & spousal immunity)?
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
Clergy-penitent privilege
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.
accountant-client privilege
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.
professional journalist privilege
There is no constitutional right for a professional journalist to protect their source of information; only certain states recognize such a privi- lege.
governmental privileges
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).
how to determine whether federal or state privilege law should be applied in a particular case in federal court
(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.
what are the general requirements of asserting privileges
(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
effect of eavesdroppers
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
waiver of privilege - how to
(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.
what is non confidential information
pre-existing documents
physical evidence
to what extent are communications through agents privileged through attorney client privilege
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.
joint client rule
where attorney acts for two parties with a common interest there is no privilege between the two parties [but there is for third parties]
rule of attorney work product rule
documents prepped by attorney for own use in a case are not subj to discovery except in case of necessity
what is scope of physician-patient privilege
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)
state rules on physician patient relationship
many states do not allow this privilege in criminal cases or in felony cases
when does psychotherapist and social worker - patient privilege not apply
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).
what are the privileges relating to marriage
(1) spousal testimonial privilege (spousal immunity)
(2) privilege for confidential marital communications
may witness spouse testify against defendant-spouse?
yes, she can if she wants to [because she holds the privilege]
how can defendant prevent his wife from testifying against him
(1) ask her to invoke spousal immunity
(2) object if she testifies on basis of confidential marital communications privilege
when are marital communications confidential?
presumed confidential unless threats or made in front of third party
does the application of attorney client privilege hinge on payment for services?
nope
rule about inadvertent disclosures under AC privilege
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
