Privileges

Question 1

There are four Confidential Communication privileges recognized in federal courts and in all 50 states:

Answer 1

(1) Attorney Client Privilege
(2) Psychotherapist Patient Privilege
(3) Clergymen Privilege
(4) Husband-Wife Privilege

Question 2

Waiver of Privileges

Answer 2

Any privilege is waived by:

(i) failure to claim the privilege;
(ii) voluntary disclosure of the privileged matter by the privilege holder; or
(iii) a 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].

Question 3

Attorney-Client Privilege

Answer 3

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

The client holds the privilege, and she alone may waive it. The attorney’s authority to claim the privilege on behalf of the client is presumed in the absence of contrary evidence.

The important elements of this privilege are:

(i) Attorney-Client Relationship; and
(ii) Confidential Communication.

Question 4

Attorney-Client Relationship

Answer 4

The client must be seeking the professional services of the attorney at the time of the communication. Disclosures made before the attorney accepts or declines the case are covered by the privilege.

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 by the corporation to make such statements.

Question 5

Confidential Communication

Answer 5

To be protected, the communication must be such that it is not intended to be disclosed to third parties.

Communications made through agents (third persons, e.g. secretaries or accountants) are confidential if necessary to transmit information between the attorney and client.

However, where an attorney acts for both parties to a transaction, no privilege can be invoked in a lawsuit between the two parties, but the privilege can be claimed in a suit between either or both of the two parties and third persons.

Caveats:
1) Client identity generally is not privileged unless:
Disclosure will disclose other privileged matters
2) Fee arrangements: Are not privileged
3) The duration of the privilege is: Extends from initial contact to beyond the death of the client

Question 6

Scope of Attorney-Client Privilege

Answer 6

The attorney-client privilege applies indefinitely. The privilege even continues to apply after the client’s death. However, there are three significant exceptions to the attorney client privilege.

There is no privilege:

(1) 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;
(2) Regarding a communication relevant to an issue between parties claiming through the same deceased client; and
(3) For a communication relevant to an issue of breach of duty in a dispute between the attorney and client.

Question 7

Attorney’s Work Product

Answer 7

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

Question 8

Limitations on Waiver of Attorney-Client Privilege and Work Product Rule

Answer 8

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

Undisclosed privileged material is subject to the waiver only if the waiver is intentional, the disclosed and undisclosed material concern the same subject matter, and 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 and rectify the error.

Question 9

Physician-Patient Privilege

Answer 9

The physician-patient privilege belongs to the patient, and he may decide to claim or waive it.

Confidential communications between a patient and his physician are privileged, provided that:

(i) A professional relationship exists;
(ii) The information is acquired while attending the patient in the course of treatment; and
(iii) The information is necessary for treatment.

Question 10

Scope of Physician-Patient Privilege

Answer 10

The physician-patient privilege does not apply (or is impliedly waived) if:

(1) The patient puts his physical condition in issue;
(2) The physician’s assistance was sought to aid wrongdoing;
(3) The communication is relevant to an issue of breach of duty in a dispute between the physician and patient;
(4) The patient agreed by contract to waive the privilege; or
(5) It is a federal case applying the federal law of privilege.

[i.e. no federal privilege for physician-patient relationship].

Question 11

Psychotherapist/Social Worker Client Privilege

Answer 11

The United States Supreme Court recognizes a federal privilege for communications between a psychotherapist or license social worker and his client. This privilege operates in the same manner as the attorney-client privilege.

Question 12

Spousal Immunity

Answer 12

When the privilege of spousal immunity is invoked, a married person whose spouse is a defendant in a criminal case may not be called as a witness by the prosecution.

Moreover, a married person may not be compelled to testify against his 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 lasts only during the marriage.

In federal court, the privilege belongs to the witness-spouse. In some state courts, the privilege belongs to the party-spouse. Does not apply to actions between spouses or in cases involving crimes against the testifying spouse or either spouse’s children.

Question 13

Privilege for Confidential Marital Communications

Answer 13

In any civil or criminal case, confidential communications between a husband and wife during a valid marriage are privileged.

For this privilege to apply, the marital relationship must exist when the communication is made. Divorce will not terminate the privilege, but communications after the divorce are not privileged.

In addition, the communication must be made in reliance upon the intimacy of the marital relationship. Does not apply to actions between spouses or in cases involving crimes against the testifying spouse or either spouse’s children.

Question 14

Privilege Against Self-Incrimination

Answer 14

Under the Fifth Amendment to the Constitution, a witness cannot be compelled to testify against himself. Any witness compelled to appear in a civil or criminal proceeding may refuse to give an answer that ties the witness to the commission of a crime.

Presentation of real and demonstrative forms of evidence are not protected.

Prosecutor may not comment on the refusal to testify

Testimony given at a preliminary hearing does not waive the privilege of the accused not to take the stand at trial.

Question 15

Clergy or Accountant Privilege

Answer 15

A privilege exists for statements made to a member of the clergy or an accountant, the elements of which are very similar to the attorney-client privilege.

Question 16

Professional Journalist Privilege

Answer 16

There is no constitutional right for a professional journalist to protect his source of information, so any privilege in this area is limited to individual state statutes on the subject.

Question 17

Governmental Privileges

Answer 17

Official information not otherwise open to the public or the identity of an informer may be protected by a privilege for the government. No privilege exists if the identity of the informer is voluntarily disclosed by a holder of the privilege.

Question 18

Exclusion and Sequestration of Witnesses

Answer 18

Upon a party’s request, the trial judge will order witnesses excluded from the courtroom. The judge may also do this on his own motion.

The judge, however, may not exclude

(i) a party or a designated officer or employee of a party,
(ii) a person whose presence is essential to the presentation of a party’s case, or
(iii) a person statutorily authorized to be present.

Question 19

Except as otherwise provided by the Constitution or statute or by these or other rules promulgated by the State, no person has a privilege to:

Answer 19

(1) Refuse to be a witness
(2) Refuse to disclose any matter
(3) Refuse to produce any object or writing

Question 20

Political Vote

Answer 20

Every person has a privilege to refuse to disclose his vote, unless compelled by state election laws.

Question 21

Trade Secrets

Answer 21

A person has a privilege to refuse to disclose any trade secret he owns or to prevent others from disclosing such information unless concealment will create fraud or injustice.

Question 22

Executive Privilege

Answer 22

A court-created privilege: Courts decide whether the privilege applies, although, the privilege is absolute. However, other information is given only a qualified protection, wherein disclosure is required upon a showing of special need (evidence found necessary for a pending criminal proceeding).

Question 23

Commenting on the Privilege

Criminal vs Civil

Answer 23

Criminal case:
Not permitted by prosecutor, no adverse inference can be drawn from the witness refusal to take the stand

Civil case:
The opposing party can comment on the exercise of the privilege and can make adverse inferences