Privileges Flashcards
Attorney-Client Privilege CEC 954
A client has the privilege to refuse to disclose and to prevent another from disclosing confidential communication between the client and attorney. The communication must have been (1) the client and attorney; (2) made in the course of the attorney-client relationship or in the course of retaining a lawyer; and (3) transmitted in confidence. Termination of the relationship does not affect the privilege. CA rejects the “eavesdropper doctrine” but if the client is aware that the means chosen to communicate information discloses information to third parties then it is not confidential. Exceptions: crime-fraud exception, lawyer believes the info must be disclosed to prevent a criminal act which the lawyer reasonably believes is likely to result in death or substantial bodily harm; and joint clients.
Absolute WP Privilege
(a) A writing that reflects an attorney’s impressions, conclusions, opinions, or legal research or theories is not discoverable under any circumstances.
Qualified WP Privilege
(b) The work product of an attorney, other than a writing described in subdivision (a), is not discoverable unless the court determines that denial of discovery will unfairly prejudice the party seeking discovery in preparing that party’s claim or defense or will result in an injustice.
Waiver 912
Waiver may be found when: voluntary disclosure or consent to disclose any significant party of the privileged matter by the holder. Also, where the holder has legal standing and opportunity to claim the privilege and fails to do so.
Psychotherapist-Client Privilege CEC
Confidential communication made between patient and psychotherapist to obtain psychotherapy is privileged.
Privileged “Confidential Marital Communications”
Each spouse can refuse to disclose or allow disclosure of private communication between husband and wife made DURING the marriage. “Communication” includes things written or spoken. Does not matter if they are still married at the time of trial, confidential communication made during the marriage is still protected. Applies in both criminal and civil proceedings. Exceptions: (1) crime fraud; (2) proceedings between spouses; (3) criminal procedure where: committed against other spouse or child, bigamy, or juvenile proceedings.
Spousal Testimonial and Witness Privilege
Privilege not to provide testimony against spouse in ALL proceedings and ONLY witness spouse holds the privilege to invoke. If the spouse is not a party, W spouse may be called as a W but can invoke privilege for questions that would provide testimony AGAINST spouse. BUT may be called as a W to the gran jury since D is NOT a party. D and W spouse must be married at the time of trial but extends to information learned before marriage. Exceptions: (1) proceedings re: competence of spouse; (2) crim cause where spouse charged with crime against spouse or child; and (3) proceedings by one spouse against other spouse.
