Privileges

Question 1

What are the privileges recognized by the federal courts?

Answer 1

1. Attorney-client privilege
2. Spousal communications
3. Psychotherapist/social worker-client privilege.

In diversity cases, the state law of privilege applies.

Question 2

What is the scope of attorney-client privilege?

Answer 2

The privilege applies to confidential communications between attorney and client (or representative of either) made during professional, legal consultation, unless privilege is waived by the client or an exception is applicable.

Confidential communication does not apply to client’s knowledge of the underlying information, pre-existing documents, or physical evidence.

Question 3

What types of waiver are there for attorney-client privilege?

Answer 3

1. Voluntary Waiver: Only the client has the power to waive the privilege. (After the client’s death, the privilege continues and only the client’s estate can waive it.)
2. Subject Matter Waiver: A voluntary waiver of the privilege as to some communciations will also waive the privilege as to other communications if:
   i. The partial disclosure was intentional,
   ii. The disclosed and undisclosed communications concern the same subject manner, and
   iii. Fairness requires that the disclosed and undisclosed communications be considered together.
3. **Inadvertent Waiver: **An inadvertent disclosure of a privileged communication will not waive the privilege so long as the privilege holder:
   i. took *reasonable steps to prevent *the disclosure, and
   ii. takes reasonable steps to correct the error.

Question 4

What are the exceptions to attorney-client privilege?

Answer 4

1. Future crime or fraud
2. Client puts legal advise at issue
3. Attorney/client disputes

Question 5

What are the different types of spousal privileges, and what are their scopes? What are the NY distinctions?

Answer 5

1. Spousal immunity: in criminal cases only, a spouse cannot be compelled to testify about anything against the defendant spouse. The witness spouse holds this privilege, not the defendant spouse.

New York: does not recognize a spousal immunity privilege.

2. Confidential communications between spouses: In any case (both civil or criminal/both federal and New York), a spouse is not required, and is not allowed in the absence of consent by the other spouse, to disclose a confidential communication (statements or acts) made by one to the other during the marriage. Both spouses hold the privileges, and waiver only occurs if both consent to disclosure.

Exceptions (FRE and New York):

1. Communications or acts in furtherance of jointly perpetrated future crime or fraud.
2. Communications or acts destructive of family unit, e.g. spousal or child abuse.
3. No privilege in civil litigation between the spouses themself, e.g. divorce, breach of contract.