Privileges Flashcards
In fed court action arising under FED SUBSTANTIVE LAW (civil cases arising under constitution or fed statutes and fed crim cases) what are privileges governed by?
Privileges are governed by the principles of the common law as they may be interpreted by the federal courts in the light of reason and experience.
In fed court action based on diversity of jurisdiction, where state substantive law applies to parties’ claims and defenses (erie situation), the fed court must apply what?
PRIVILEGE LAW OF THE STATE: whose substantive law is applicable. In diversity actions they must also apply state law of competency (i.e. Dead Mans Statute), state law on burdens of proof and presumptions. Aside from these presumptions, Fed rules of evidence apply in all fed court actions including diversity cases.
What is the purpose of attorney-client privilege?
To encourage client to speak openly to counsel.
What does attorney-client privilege apply 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.
What is confidential communications?
Client must intend confidentiality (e.g. no privilege if client knows that third party is listening in or if client asks attorney to disclose the communication to a third party).
What is the joint client rule?
If two or more clients with common interest consult the same attorney, their communications with counsel concerning the common interest are privileged as third parties, but if the joint coiners later have dispute with each other concerning the common interest, privilege does not apply as between them.
What communications are covered?
Privilege covers the exchange of information between attorney and client. It does not apply to the client’s knowledge of the underlying information, pre-existing documents, or physical evidence.
Who is the attorney for the purposes of attorney client privilege?
An attorney OR someone that the client reasonably believes is a member of the bar.
Who is the client for the purposes of attorney client privilege?
The client/company representative OR a person seeking to become a client, whether or not that person becomes a client.
Who has the power to voluntarily waive privilege?
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).
What is a subject matter waiver of privilege?
Where there are multiple privileged documents, only some of which are disclosed to the opponent. A voluntary waiver of privilege as to some communications will also waive privilege as to other communications if 1) partial disclosure intentional, 2) disclosed and undisclosed communications concern same subject matter 3) fairness requires that the disclosed and undisclosed communications be considered together.
What is an inadvertent waiver of privilege and does it waive privilege?
One privileged document in a stack of non-privileged documents inadvertently gets disclosed. An inadvertent disclosure of a privileged communication will not waive privilege so long as reasonable steps were taken to prevent the disclosure and correct the error.
What are the three exceptions to waiver of privilege?
1) Future crime/fraud
2) Client puts legal advice in issue i.e. indicates reliance
3) Attorney and client have a dispute over fees or some malpractice issue.
How is physician patient privilege created and what is the rationale for it?
Usually created by statute. The rationale is to encourage open communication by patient and to protect privacy.
What does physician patient privilege apply to for Multistate and NY?
Confidential communication or information acquired by physician from patient for the purpose of diagnosis or treatment of a medical condition
