Privileges

Question 1

What are the 5 elements of Atty-client Privilege?

Answer 1

1. Confidential communications
   Intended to be confi by client (i.eno listeners)
2. Between attorney and client
   Atty: member of bar or one a client REASONABLY believes is atty
   Incl. necessary reps for svcs (e.g. legal secretary) Client: includes person seeking to BECOME a client
3. During professional, legal consultation
   Legal advice, NOT social/business
4. Unless waived by client
5. Or an exception applies
   -future crime/fraud (e.g. “Help me defraud these ppl”)
   -legal advice at issue OR dispute b/t atty and client

Question 2

What are the 5 elementsand the exceptions to the doctor-patient privilege?
FRE distinction

Answer 2

1. Professional relationship exists
2. Confidential communication/info (no 3rd parties present)
3. Acquired by doctor
   Doctor includes certified mental health professional(including pyschotherapists)
4. For purposes of medical diagnosis/treatment Medical diagnosis includes litigation
5. Info necessary for treatment

EXCEPTIONS:
-If patient expressly or impliedly puts mental or physical state at issue:
E.g. π is suing for damages in personal injury case; ∆ in asserting insanity defense
Δ must AFFIRMATIVELY put condition at issue (i.e. simple denial that physical or mental condition caused event is NOT putting condition at issue)
- If Dr.’s assistance was sought to aid wrongdoing
- Communication is relevant to an issue of breach of duty between dr. and patient
- Patient agreed by contact (eg insurance policy) to waive the privilege
- Or in a fed case applying FRE (because FRE does not recognize doctor-patient privilege, only psychotherapist privilege).

Question 3

What privilege rules apply infederal ct?

Answer 3

Depends on type of smjx…

1) For ARISING UNDER fed law cases, “privileges are governed by the principals of the (federal) COMMON LAW as they may be interpreted by the fed cts in the light of reason/experience” These are the basic privilege rules from the MBE
2) For DIVERSITY cases where STATE SUBSTANTIVE LAW applies (Erie), apply STATE law for (i) privilege; (ii) competency (e.g. Dead Man Statute); AND (iii) burdens of proof/presumptions Outside of these 3 exceptions, APPLY Federal Rules of Evidence

Question 4

What is thespousal communication privilege AND when is it available?

Answer 4

In ANY type of case, a spouse is not REQUIRED, and is NOT allowed in absence of consent by other spouse, to disclose confidential commn b/t the spouses made in reliance upon the intimacy of the marital relationship
- BOTH spouses are holders of privilege; disclosure requires consent by BOTH spouses
- Communication must have occurred while they were married.
- info communicated during marriage still privileged after marriage ends.
EXCEPTIONS: NO privilege IF…
- communications or acts are in furtherance of a jointly perpetrated future crime or fraud
- communications are destructive of family unit (e.g. spousal/child abuse)
- there is civil litigation b/t the spouses Policy: To encourage open commn during the marriage

Question 5

What is spousal immunity AND when is it available?

Answer 5

In federal CRIMINAL cases, a spouse whose spouse is the D CANNOT be called as a witness by the prosecution. Also, a married person cannot be compelled to testify about anything against the other spouse whether or not they are D in the case.
Privilege lasts as long as they are married
Witness/spouse is holder of privilege, SO they can CHOOSE to testify against ∆ spouse EXCEPTIONS: NO privilege IF…
- the couple divorces before trial
- communications or acts are in furtherance of a jointly perpetrated future crime or fraud
- communications are destructive of family unit (e.g. spousal/child abuse) Policy: To protect harmony of existing marriage.

Question 6

What is the Joint Client rule for atty-client privilege?

Answer 6

If ≥ 2 clients with common representation, their communcation is protected as to OUTSIDERS, but NOT protected as to each other
Communication (info exchange)is protected,NOT physical evid., knowledge or EXISTING docs

Question 7

How can a client waive atty-client privilege?

Answer 7

Only client can waive b/c client holds privilege; survives A/C relationship and death
Subject matter waiver: a voluntary waiver of privilege as to SOME communication will ALSO waive the privilege as to the OTHER communication if:
i) partial disclosure is intentional;
ii) the disclosed and undisclosed commn concern the same subject matter; AND
iii) fairness req’s that the disclosed and disclosed info be considered together
Inadvertent waiver: an inadvertent disclosure of a privileged commn will NOT waive the privilege SO LONG AS the privilege-holder:
i) took reasonable steps to prevent the disclosure; AND
ii) takes steps to correct the error

Question 8

What privileges exist in fed courts?

Answer 8

FRE have no specific privilege provisions; all privileges come from common law.
Fed courts recognize:
- Atty- client privilege
- Spousal immunity
- Confidential marital communications
- Psychotherapist/social worker/ client privilege
- Clergy- penitent privilege
- Accountant privilege

Question 9

What happens if someone was eavesdropping on confidential communications?

Answer 9

The privilege based on confidential communication does not end because it was overheard by someone whose presence is unknown to the parties.