Privileges Flashcards
Privileges recognized
(1) A/c Privilege
(2) spousal privilege
(3) psychotherapist-patient privilege
(4) clergy-penitent privilege
(5) social worker-client privilege
Also, in diversity, state privileges apply in federal court
NO DOCTOR PRIVILEGE
CA: Exempt from Prop 8, thus privileges apply in both Criminal cases and civil cases
Attorney Client Privilege
A communication between attorney and client or their representatives intended by client to be confidential (objective) and made to facilitate legal services is privileged in all CIVIL and CRIMINAL proceedings, unless waived
May be present through agents, who can be secretaries, messengers, accountants, or DOCTORS
Corporate Clients: statements made by corporate officials or employees to an attorney are protected if employees were authorized by corporation to make the statements. Look out for witnesses who merely happen to be employees
Applies indefinitely
CA: Privilege ends once estate of dead client is distributed and executor of estate is discharged
CA: privilege applies to communications from employee if she is the natural person to speak to the L on behalf of the corporation in the matter (in house counsel or CEO), or employee did something for which corporation may be held liable and corporation instructed her to tell L what happened
Waiver of AC Privilege
Client holds it so she alone may waive it
Exceptions to AC Privilege
(1) if Attorney’s services were sought to further something the client should have known was a crime or fraud,
(2) a communication relevant to an issue between parties claiming through the same deceased client;
(3) two or more parties consult an attorney on a matter of common interest and the communication is offered by one of these parties against another, or
(4) communication relates to alleged breach of duty between lawyer and client
CA: no AC privilege where L reasonably believes disclosure of communication is necessary to prevent crime that is likely to result in DEATH or SUBSTANTIAL BODILY HARM
Doctor-patient privilege
Not recognized under FRE, but federal courts in diversity apply state privileges, many of which have doctor/patient. if MBE says it exists, law is:
patient has privilege to prevent disclosure of info confidentially conveyed to a physician where the patient conveyed the info for the purpose of obtaining diagnosis or treatment and the info was pertinent to diagnosis or treatment
Exceptions:
(1) where patient puts physical condition in issue (personal injury case)
(2) where physician’s services sought to aid in crime or fraud or escape capture after frime or tort,
(3) case alleging breach of duty arising out of doctor/patient relationship
Some states do not recognize this privilege in CRIMINAL cases (including CA)
CA: has doctor and psychotherapist privilege. But, shrink privilege does not apply if shrink has reasonable cause to believe that patient is a danger to himself or others and disclosure is necessary to end the danger. Doctor privilege does not apply in criminal cases or what is required to report.
Spousal immunity
spouse of a CRIMINAL DEFENDANT may not be compelled to testify against the D in ANY CRIMINAL PROCEEDING
Privilege lasts during marriage
Privilege belongs to Witness-spouse. Thus, witness-spouse cannot be compelled to testify, but may CHOOSE to do so.
CA: applies to CIVIL and CRIMINAL cases and spouse of party is privileged not even to be called to witness stand
Confidential Marital Communications Privilege
Protects confidential communications made DURING marriage. Applies to CIVIL and CRIMINAL cases
Privilege belongs to BOTH SPOUSES, so either spouse can refuse to disclose and prevent other from disclosing
Does not protect communications made before or after marriage
Exceptions to both spousal privileges
(1) actions between spouses; or
(2) criminal prosecutions where one spouse is charged with a crime against the other spouse or one of their kids
