Privileges

Question 1

What is the general rule for privilege?

Answer 1

• Only common law privileges are recognized as interpreted by federal courts
• HOWEVER states may have other privileges
  
  • civil cases (diversity action) privilege determined by the state - although fed procedure followed, state law applied
  • in FQ & criminal cases, privilege determined by common law

Question 2

What privileges does no person have?

Answer 2

Except when provided by the Constitution, statute of these rules promulagated by the state, no person has the following privileges:

1. Can’t refuse to be a witness
2. Can’t refuse to disclose a matter
3. Can’t refuse to disclose an object or writing

NOTE - there are exceptions

Question 3

What are the confidential privileges in fed cts & all states?

Answer 3

1. Attorney Client
2. Psychotherapist - patient (not doctor)
3. Clerymen -penitent
4. Husband - wife
   
   • martial communication
   • spousal immunity

Question 4

What are the key privilege issues?

Answer 4

1. protected relation (who)
2. communication (what)
3. confidentiality
4. who is the holder
5. has there been a waiver
6. are there any exceptions

Question 5

What is the attorney-client privilege?

Answer 5

• Protects confidential communications bet client & attorney
  
  • work product
  • NOT
    
    • observations
    • pre-existing documents (bank records, deeds)
• HOLDER
  
  • asserted by client or
  • lawyer on client’s behalf
  • NOTE - survives client’s death

Question 6

What may a client do with this privilege?

Answer 6

• Refuse to disclose or prevent others from disclosing made for the purpose of seeking professional legal advice or services
  
  • does not have to be an existing relationship

Question 7

What is considered to be work product?

Answer 7

• Are privileged materials prepared in anticipation of litigation by the attorneyy herself
• EXCEPTION
  
  • If the party seeking admission can show:
    
    • A substantial hardship &
    • no other way of obtaining the evidence

Question 8

What third parties does the attorney-client privilege extend to?

Answer 8

• Essential 3rd pty
  
  • Anyone who is furthering some purpose of the relationship
• Attorney Representatives
  
  • A person hired by the atty to assist in the rendition of legal services
    
    • Accountant, investigator, translator, doctor, jury consultant, secretary, stenographer.
    • Doctos - statements are not made for treatment but come under the atty-client umbrella in this case
• Easedroppers
  
  • Unknown - does not destroy privilege
  • Known or anticipated - destroys the privilege

Question 9

Who is considered a client?

Answer 9

• Client includes any person:
  
  • public officer, corporation or association - public or private
  • who is seeking professional legal services orconsulting with the possibility of obtaining legal services

Question 10

What does the meaning lawyer include?

Answer 10

• Any person authorized or reasonably believed by the client to be authorized (authorized - engaged by the practice of law)

Question 11

How is the attorney-client privilege waived?

Answer 11

• failure to assert in timely manner usually results in waiver
• Waiver
  
  • generally only partially waived to the extent to permit reasonable scrutiny by the other pty
  • Blanket or total waiver ONLY IF
    
    • waiver was intentional
    • both the disclosed & undisclosed info contain the same subject matter

Question 12

How do courts treat inadvertant waivers (NOT find it a waiver)?

Answer 12

• Court will NOT find it a waiver if:
  
  • the client did not intend to waive the privilege
  • the client took reasonable steps to protect the information
  • the client took timely steps to remedy the disclosure

Question 13

What are the exceptions ot the attorney-client privilege?*******

Answer 13

• Situations where there is:
  
  • future crime or fraud
  • suits between stty & client
  • joint-client exception
    
    • 2 clients hire same atty and are now in a suit between them
    • earlier communication not privileged absent an agreement otherwise
• Waiver by one joint holder does not effect the right of the other holder

Question 14

Is the client identity privileged? Fee arrangements? What is duration

Answer 14

• Client identity
  
  • NOT privileged UNLESS disclosure will disclose additional, otherwise privileged information
• Fee arrangement
  
  • Not privileged, nor who is paying the bill or billing record
• Duration
  
  • from inital contact to until beyond client’s death

Question 15

What is the Doctor-patient privilege and when does it apply?

Answer 15

• It is a statutory privilege which most states have
• Fed. rules never recognize this privilege

Question 16

What is the federa; psychotherapist-patient privilege?

Answer 16

• APPLIES TO:
  
  • Licensed social workers
  • psychologist
  • psychatrist
  • medical health specialist
  • marriage counselors
  • BUT NOT - educational & vocational counselors
• PROTECTS
  
  • A licensed psychotherapist & a patient who is seeking diagnosis or treatment for a medical condition

Question 17

What are the exceptions to the psychotherapist-patient privilege?

Answer 17

1. statements made regarding commitment proceedings;
2. statements dealing with court-ordered examinations;
3. when the medical condition is part of the claim such as:******
   
   • personal injury or medical malpractice
4. future crime or fraud (same as attorney-client).

Question 18

What are the husband-wife privileges?

Answer 18

1. Marital Communication Privilege &
2. Spousal Immunity

Question 19

What is teh Marital Communication Privilege?

Answer 19

• WHO can assert - Either spouse, both are holders
• WHEN it applies - both civil & criminal cases
• WHAT it protects
  
  • confidential information between the ptys during marriage intended to be confidential
    
    • not those made before or after marriage
    • does not apply to observations - majority rule
  • communication in front of older children, relatives & friends are not privileged
  • Privilege survices divorce & death

Question 20

What are the exceptions to the marital communication privilege?

Answer 20

• There is no privilege when there is:
  
  • A crime or intentional tort committed by oe spouse against another or a child
  • In divorce proceedings, any suit between the spouses
  • When they are joint participants in a crime ******

Question 21

What is spousal immunity (testimonial)?

Answer 21

• PROTECTS
  
  • all communications, regardless of confidentiality, both during and before marriage; includes testimony, observations, and impressions.
• HOLDER
  
  • Comon law - by the pty spouse
  • Federal cts - by the witness spouse
• WHEN
  
  • criminal cases
  • both during & before marriage; LOST upon divorce
• REQUIRES
  
  • a valid marriage

Question 22

What are the exeptions to spousal immunity?

Answer 22

• suits between the spouses;
• suits involving a child of either spouse (e.g., husband tried for sexual abuse of stepdaughter; wife may be compelled to testify).

Question 23

When are religious privileges protected?

Answer 23

• RULE
  
  • They protect confidential communication
  • made from penitent to clergymen
  • in clergymen’s professional capacity as a spiritual advisor
  • made under conditions of confidentiality
• HOLDER
  
  • either clergymen or penitent can assert
• EXCEPTIPN
  
  • None generally recognized

Question 24

What is the privilege for political vote?

Answer 24

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

Question 25

What is the rule for privilege for trade secrets?

Answer 25

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 26

What is the rule for identity of an informer?

Answer 26

(1) Both the U.S. and the individual states have a privilege to refuse to disclose the identity of a person funneling information vital and relevant to law enforcement.
(2) Only the government can assert this privilege, not the informant.
(3) A newsperson has no First Amendment privilege to refuse to disclose the identity of his sources [Branzburg v. Hayes]. HOWEVER, states can provide shield laws to afford such a privilege.

Question 27

What is the rule for executive privilege?

Answer 27

(1) A court-created privilege: In U.S. v. Nixon (1974), the Supreme Court recognized such a constitutional privilege for the President.
(2) Courts decide whether the privilege applies, although the President has an absolute privilege to refuse to disclose matters of national security

Question 33

Question 5

Defendant is accused of stealing a rather expensive diamond necklace while at a party. The prosecuting attorney would like to call a witness to the stand, who will testify that, while hiding behind a large wall hanging in a side room at the party, he heard the defendant and his wife, come into the room and close the door behind them. The defendant said to his wife, in a hushed voice, “OK, here’s the plan. You distract the host by flirting with him; while you’re doing that, I’ll sneak upstairs to his safe and pocket the necklace. Once I’m done I’ll rejoin you in the dining room.” The prosecuting attorney would also like to call the wife as a hostile witness to testify to the conversation.

May the prosecution introduce the testimony of these two witnesses?

(A) Yes, both the witness and the wife.

(B) No, neither the witness nor the wife.

(C) The witness, but not the wife.

(D) The wife, but not the witness.

Question 34

Question 6

Plaintiff sued Defendant for personal injuries when Defendant rear-ended Plaintiff in State X. Plaintiff’s attorney hired a doctor to examine Plaintiff in preparation for trial. At trial, Defendant’s attorney attempted to call the doctor as a witness to testify about statements concerning Plaintiff’s injuries that Plaintiff made to the doctor in confidence, and that the doctor had then made to Plaintiff’s attorney.

Is the testimony admissible?

(A) No, because the statements are protected by the attorney-client privilege.

(B) No, because the statements are protected by the physician-patient privilege.

(C) Yes, because the physician-patient privilege is waived when Plaintiff filed suit because he put his physical condition in issue.

(D) Yes, because Plaintiff’s testimony constitutes a statement of a party opponent.

Question 35

What is the rule for secrets of state and other official information?

Answer 35

(1) A secret of state is a government secret relating to national security or international relations.
(2) The privilege applies to intergovernmental opinions and policy decisions, investigatory files, and other government materials.

Question 36

Recap: 1. What is the lawyer-client privilege, and who holds it?

Question 37

Recap: 2. Describe the two marital/spousal privileges.

Question 38

Recap: 3. What are some examples of evidence to which the Fifth Amendment privilege against self-incrimination would not apply?