Privileges

Question 1

What is a testimonial privilege

Answer 1

A testimonial privilege permits a person to refuse to disclose, and prohibit others from disclosing, certain confidential information in judicial proceedings

Question 2

Does federal or state privilege apply

Answer 2

– in a federal court case arising under federal substantive law, privileges are governed by federal common law

– in a federal court case based on diversity jurisdiction, the federal court must apply the privilege law of the state (eerie doctrine)

Question 3

Federal Common Law Privileges

Answer 3

The federal rules have not specific privilege provisions, but privilege is governed by common law. Federal courts currently recognize the following privileges

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

Question 4

Person who may assert privilege

Answer 4

A privilege is personal to the holder - it generally can be asserted only by the holder. Sometimes the person with whom the confidence was shared may assert the privilege on the holder’s behalf

Question 5

Comment on Privilege

Answer 5

If a privilege is validly invoked, neither the parties nor the judge may make any comment or argument based on invoking the privilege. Nor can any inference be drawn from the valid invocation of a privilege.

Question 6

Confidentiality

Answer 6

to be privileged, a communication must be shown or presumed to have been made in confidence

A privilege based on confidential communications is not destroyed because it was overheard by someone whose presence is unknown to the parties. In the absence of negligence by the person claiming the privilege, even the eavesdropper can be prohibited from testifying.

Question 7

Waiver of Privilege

Answer 7

Any privilege is waived by
1) failure to claim the privilege
2) voluntarily disclosing the privilege matter by the holder
3) a contractual provision waiving in advance the right to claim the privilege

Question 8

Attorney Client Privilege

Answer 8

communications between an attorney and client, made during professional consultation, are privileged from disclosure.

The privilege applies to:
1) confidential communications;
2) between attorney and client (or representatives of either);
3) made during professional legal consultation;
4) unless the privilege is waived or an exception applies

Question 9

Attorney client relationship

Answer 9

For an attorney client relationship to exist, the client must be seeking the professional services of an attorney at the time of the communication. Disclosures made before the attorney accepts to declines the case are covered by the privilege.

Question 10

Corporate Clients (attorney client)

Answer 10

Corporations are clients within the meaning of the privilege, and 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 11

Confidential Communications (attorney client)

Answer 11

The privilege applies to communications only. It does not apply to underlying information, preexisting documents, or physical evidence.

Communications made in the known presence and hearing of a stander are not privileged. However, representatives of the parties may be present without destroying privilege.

Question 12

Communications through Agents (attorney client)

Answer 12

communications made to third persons (agents) are confidential and covered if necessary to transmit information between the attorney and client.

Communications between a client and doctor during an exam at the attorney’s request - the physician patient privilege does not apply because no treatment is contemplated. However, the attorney client privilege applies to conversations between the client and consulting doctor so long as the doctor is not called as a testifying expert.

Question 13

Joint Client Rule (attorney client)

Answer 13

If two or more clients with a common interest consult the same attorney, their communications with the attorney concerning the common interest are privileged as to third parties. But if the joint clients later have a dispute with each other concerning the common interest and one client sues the other, the privilege does not apply between them

Question 14

Holder of attorney client privilege

Answer 14

the client holds the privilege, and only they can waive it. However, the attorney may claim the privilege on the client’s behalf.

Question 15

How long does the privilege apply (attorney client)

Answer 15

it applies indefinitely - continues after the relationship ends and even after the client’s death.

The client’s estate representative has the power to waive the privilege after the client’s death.

Question 16

Exceptions to Attorney Client

Answer 16

there is no privilege if

– if the attorney’s services were sought to aid in the planning or commission of something the client should have known was a crime or fraud

– where the client has put the legal services at issue in the case

– for a communication relevant to an issue of breach of duty in a dispute between the attorney and client

– regarding a communication relevant to an issue between parties claiming through the same deceased client

Question 17

Attorney Work Product

Answer 17

Although documents prepared by the attorney for their use in a case are not protected by the attorney client privilege, they are not subject to discovery except in cases of necessity

Question 18

waiver of attorney client and work product

Answer 18

generally, a voluntary disclosure of privileged material operates as a waiver of the attorney client or work product protection only with respect to the disclosed material.

Undisclosed privileged material is subject to the waiver only if
1) the waiver was intentional
2) the disclosed and undisclosed material concerns the same subject matter; and
3) the material should be considered together to avoid unfairness

there is no waiver if the disclosure was inadvertent and the holder took reasonable steps to prevent disclosure or rectify the error

Question 19

Physician Patient Privilege (STATE ONLY)

Answer 19

confidential information acquired by a physician is privileged if

– there was a professional relationship between the physician and patient for the purpose of medical treatment;

– the information was acquired for the purpose of diagnosis or treatment; and

– the information was necessary for diagnosis or treatment

The privilege belongs to the patient, and the patient may decide to claim or waive it. If the patient is unavailable at the time of trial, the physician may claim the privilege on their behalf.

Question 20

Exceptions to Physician Patient

Answer 20

The physician patient privilege does not apply if

– the patient puts their physical condition in issue;
– the physician’s assistance was sought to aid wrongdoing;
– the communication is relevant to an issue of breach of duty in a dispute between the physician and patient;
– the patient agreed by contract to waive the privilege; or
– it is a federal case applying federal law of privilege

Question 21

Psychotherapist/Social Worker Client Privilege

Answer 21

Federal courts recognize a privilege for confidential communications between a psychotherapist or licensed social worker and their patient. Its operates in the same way as the attorney client privilege.

There is no privilege where the patient puts their mental condition at issue in the case

Question 22

Spousal Immunity

Answer 22

Spousal immunity prevents a married person from being called as a witness by the prosecution against their spouse who is a defendant in a criminal case. It also prevents a married person from being compelled to testify the legal interests of their spouse in any criminal proceeding, regardless of whether the spouse is the defendant.

There must be a valid marriage for the privilege to apply, and the privilege last only during the marriage.

Question 23

Spousal Immunity in Federal v. State Court

Answer 23

In federal court, the privilege belongs to the witness-spouse. Meaning, the witness spouse cannot be compelled to testify, but may choose to do so.

In some states, the privilege belongs to, and may be invoked by, the defendant spouse.

Question 24

Confidential Marital Communications

Answer 24

In any civil or criminal case, confidential communications between spouses during a valid marriage are privileged. Either spouse can refuse to disclose or prevent any other person from disclosing the privileged information.

For this privilege to apply, the marital relationship must exist when the communication is made.

Divorce does not terminate the privilege, but communications after divorce are not privileged.

Question 25

Confidentiality (marital communications)

Answer 25

private communications between spouses are generally presumed to be confidential.

The communication must be made in reliance upon the intimacy of the marital relationship. However, threats or abusive language are not covered.

communications made in the known presence of third parties are not privileged. But this may not apply to statements made in the presence of young children.

Question 26

When Neither Marital Privilege Applies

Answer 26

Neither marital privilege will apply to the following situations

– communications or acts in furtherance of a future joint crime or fraud

– in legal actions between the spouses

– in cases where a spouse is charged with a crime against the testifying spouse or either spouse’s children

Question 27

Clergy Penitent Privilege

Answer 27

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

Question 28

Accountant Client Privilege (STATE ONLY)

Answer 28

many states recognize a privilege for statements made to an accountant, and the element are very similar to attorney client. However, there is no federal accountant client privilege