Privileges

Question 1

PRIVILEGES

Answer 1

A privilege provides testimonial protection for certain relationships.

Question 2

Federal privilege rules

Answer 2

Federal privilege rules apply in federal court for criminal, federal question, or federal law cases. The federal common law applies since there is no FRE regarding privileges.

Question 3

State privilege rules

Answer 3

State privilege rules apply in federal court diversity jurisdiction, or in state court.

Question 4

Attorney-client Privilege

Answer 4

A client has a right not to disclose any confidential communication between the attorney and the client relating to the professional relationship.

Question 5

Client (Attorney-Client)

Answer 5

A client can be a corporation, as well as an individual.

1. Federal common law: Applies to employees/ agents if authorized by the corporation to make the communication to the lawyer.
2. CEC: Applies to employees/ agents if the natural person to speak to the lawyer on behalf of the corporation, or the employee did something for which the corporation may be held liable and the corporation instructed her to tell its lawyer what happened. (As applied, both FRE and CEC rules yield the same result.)

Question 6

Confidential communications (Attorney-client)

Answer 6

The communication must be intended to be confidential.

1. Presence of a third party may serve to waive the privilege.
2. Does not apply to physical evidence turned over to the lawyer, only to communications.
3. CEC only: Allows holder to stop eavesdroppers and other wrongful interceptors from revealing information.

Question 7

Professional services (Attorney-client)

Answer 7

The communication must be made for the purpose of facilitating legal services, though a fee need not be paid.

Question 8

Holder of the privilege (Attorney-client)

Answer 8

Only the client holds the privilege and the lawyer may assert it on the client’s behalf.

Question 9

Privilege lasts until (Attorney-client)

Answer 9

1. Federal common law: After death, with the exception of a will contest.
2. CEC: Privilege evaporates when the dead client’s estate has been fully distributed and his personal representative has been discharged.

Question 10

Attorney-Client Exceptions

Answer 10

The privilege does not apply if:

1. Crime or fraud: The communication was used to further crime of fraud; or
2. Dispute with lawyer: Relates to a dispute between the lawyer and client; or
3. Two or more parties consult on a matter of common interest and the communication is offered by one against another; or
4. CEC only: Lawyer reasonably believes the disclosure is necessary to prevent a crime that is likely to result in death or substantial bodily harm.

Question 11

Doctor-patient privilege-Federal common law

Answer 11

There is no federal doctor-patient privilege, except for the special case of psychotherapists.

Question 12

Doctor-patient privilege-CEC

Answer 12

Applies only to communications made to medical personnel for the purpose of medical diagnosis and treatment.
Exceptions: The privilege does not apply if:
a. Patient puts his physical condition in issue.
b. Doctor’s assistance was sought to aid wrongdoing.
c. Dispute between doctor and patient.
d. Information the doctor is required to report.
e. Commitment, competency, or license revocation proceedings.

Question 13

Psychotherapist-patient and social worker-client privilege-Fed Common law

Answer 13

There is a federal psychotherapist-patient privilege for confidential communications.

Question 14

Psychotherapist-patient and social worker-client privilege-CEC

Answer 14

Confidential communications made to a licensed psychotherapist or social worker are privileged.

1. Exceptions: The privilege does not apply if:
   a. Patient puts his mental condition in issue.
   b. Services were sought to aid wrongdoing.
   c. Dispute between therapist/ social worker and patient.
   d. Patient is a danger to self and others.
   e. Therapist is court appointed.
   f. Patient is a minor and possible crime victim.

Question 15

Self-incrimination

Answer 15

The Fifth Amendment provides that no person shall be compelled to be a witness against himself.

Question 16

Marital privileges

Answer 16

There are two types of marital privileges.

a. Adverse testimony privilege (testimonial immunity)
b. Confidential communications privilege

Question 17

Marital privileges-Adverse testimony privilege (testimonial immunity)

Answer 17

One spouse cannot be compelled to testify against the other spouse.

1. Duration: It can only be claimed during the marriage but covers information learned before or during the marriage.
2. Holder: Only the witness spouse holds the privilege.
3. Federal common law: Applies to criminal cases only.
4. CEC: Applies to criminal and civil cases and the spouse is privileged from being called to the witness stand.
5. Exception: Does not apply in actions between the spouses or in cases involving crimes against the testifying spouse or either spouse’s children.
6. Effect: Invoking the privilege makes the spouse unavailable for hearsay purposes.

Question 18

Marital privileges-Confidential communications privilege

Answer 18

One spouse may not disclose the confidential communications of the other made during the marriage.

1. Duration: The privilege survives the marriage, but only covers statements (not acts) made during marriage.
2. Holder: Both spouses may assert the privilege not to disclose and may prevent the other spouse from disclosing.
3. Exception: Does not apply in actions between the spouses or in cases involving crimes against the testifying spouse or either spouse’s children.
4. Effect: Invoking the privilege makes the spouse unavailable for hearsay purposes.

Question 19

CEC-only privileges

Answer 19

a. Counselor-victim privilege for confidential communications between a counselor and a victim of sexual assault or domestic violence.
b. Clergy-penitent privilege for penitential communications.
c. News reporters are immune from contempt of court for refusal to disclose sources.