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)

        Joint Client Rule: If ≥ 2 clients with common rep, their comm'n is protected as to OUTSIDERS, but NOT protected as to each other
   
        Communication (info exchange)is protected,NOT physical evid., knowledge or EXISTING docs

   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 inlcuded person seeking to BECOME a client

   3. During professional, legal consultation Legal advice, NOT social/business
   4. Unless waived by client 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 privileg 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
      
      Inadvertant waiver: an inadvertatnt 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 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 3 elementsand 1 exception to the doctor-patient privilege?

Answer 2

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

      NOTE: if a federal case based on ARISING UNDER jx, privilege ONLY exists for psychotherapists (no 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; ∆ 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)		

Question 3

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

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 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

		EXCEPTIONS: NO privilege IF...									communications or acts are in furtherance of a jointly perpetrated furture 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? NOTE: NY distinction

Answer 5

In federal CRIMINAL cases, a spouse CANNOT be compelled to testify ABOUT anything against the ∆ spouse 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 furture crime or fraud
						communications 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