Privileges

Question 1

ATTORNEY-CLIENT PRIVILEDGE

What are the 5 elements of Atty-client Privilege?

Answer 1

Rationale: To encourage client to speak openly to counsel

ELEMENTS: Privilege applies to:

1. Confidential communications
2. Between att’y and client (or representative of either)
3. Made during professional, legal consultation
4. Unless privilege is waived by the client
5. Or an exception is applicable
   - ———————————————————————————–
6. Confidential communications
   (i) Intended to be confi by client / Client with reasonable expectation of privacy (i.eno listeners)

(ii) Joint Client Rule: If ≥ 2 clients with common rep, their comm’n is protected as to OUTSIDERS, but NOT protected as to each other (so if joint clients
later have dispute concerning the common interest, privilege does not apply as between them)

(iii) Communication (info exchange)is protected,NOT physical evid., knowledge or EXISTING docs
- ———————————————————————————–
2. Between attorney and client

(i) Atty: member of bar or one a client REASONABLY believes is atty
(ii) Incl. necessary reps for svcs (e.g. legal secretary)

(iii) Client includes person seeking to BECOME a client (privilege attaches w/formal consultation even if
no retention occurs)
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3. During professional, legal consultation

(i) Legal advice, NOT social/business
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4. Unless waived by client

(i) VOLUNTARY WAIVER: Only client can waive b/c client holds privilege; survives A/C relationship and death

(ii) SUBJECT MATTER WAIVER: a voluntary waiver of privilege as to SOME communication will ALSO waive the privileg as to the OTHER communication if:
(a) partial disclosure is INTENTIONAL;
(b) the disclosed and undisclosed commn concern the SAME SUBJECT MATTER; AND
(c) FAIRNESS req’s that the disclosed and disclosed info be considered together

(iii) INADVERTENT WAIVER: an inadvertent disclosure of a privileged commn will NOT waive the privileg SO LONG AS the privilege-holder:
(i) took reasonable steps to prevent the disclosure; AND (ii) takes steps to correct the error
- ———————————————————————————–
5. Or an exception applies

(i) FUTURE crime/fraud (e.g. “Help me defraud these ppl”)
(ii) Client Puts legal advice at issue (E.g., in tax fraud prosecution, defendant defends on ground that she relied on advice of her attorney in reporting income)
(iii) dispute b/t atty and client (E.g., attorney sues client for unpaid fee, or client sues attorney for legal malpractice)

Question 2

Physician-Patient Privilege

What are the 3 elementsand 1 exception to the doctor-patient privilege?

***NOTE: FRE EXCEPTION

Answer 2

STATUTE CREATED: Physician-Patient Privilege is usually created by state statute

RATIONALE: to encourage open communication by patient and to protect privacy

Physician-patient privilege applies to:

1. Confidential communication/info
   Confi info: no 3rd parties present
2. Acquired by doctor from patient
   Doctor includes certified mental health professional(including pyschotherapists)

***NOTE: FRE EXCEPTION
Physician-Patient Privilege basically NOT recognized except for psychotherapy if pure FEDERAL LAW case
—if a federal case based on ARISING UNDER jx, privilege ONLY exists for psychotherapists (NOT AVAILABLE for ordinary drs that treat physical symptoms)

3. For purposes of medical diagnosis/treatment Medical diagnosis includes litigation
   Info necessary for treatment

EXCEPTION: If patient expressly or impliedly puts mental or physical state at issue:

E.g. π is suing for damages in personal injury case or mental suffering; or ∆ in asserting insanity defense; or

Δ must AFFIRMATIVELY put condition at issue (i.e. simple denial that physical or mental condition caused event is NOT putting condition at issue)

Question 3

FEDERAL PROCEDURE ISSUES

What privilege rules apply infederal ct?

Answer 3

Depends on type of smjx…

1) For ARISING UNDER 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

CONFIDENTIAL COMMUNICATIONS BETWEEN SPOUSES

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 confi communication btwn the spouses made in reliance upon the intimacy of the marital relationship

BOTH spouses are holders of privilege; disclosure requires consent by BOTH spouses

EXCEPTIONS: NO privilege IF… (i) communications or acts are in furtherance of a jointly perpetrated future crime or fraud

(ii) communications are destructive of family unit (e.g. spousal/child abuse)
(iii) there is civil litigation b/t the spouses

Policy: To encourage open commn during the marriage

FRE & NY Rule

Question 5

SPOUSAL IMMUNITY

What is spousal immunity AND when is it available?

NOTE: NY distinction

Answer 5

In federal CRIMINAL cases, a spouse CANNOT be compelled to testify ABOUT ANYTHING against the ∆ spouse (Sometimes called “privilege against adverse spousal testimony.”) — Protection is against being made to testify about ∆ spouse and exceeds the scope of confi info that may have been shared

Witness/spouse is holder of privilege, SO they can CHOOSE to testify against ∆ spouse

EXCEPTIONS: NO privilege IF… (i) the couple divorces before trial

(ii) communications or acts are in furtherance of a jointly perpetrated future crime or fraud
(iii) communications or acts are destructive of family unit (e.g. spousal/child abuse)

Policy: To protect harmony of existing marriage

**NY DISTINCTION: This privilege is NOT available in NY