Privileges Flashcards
Privileges - General Purpose
- Protect certain relationships/values
- Encourage the free flow of communication in various favored relationships
Privileges - General Rule
Not codified under Federal Rules, follow common law for privileges, or defer to states, but use FRE 501 as basic guidelines. However, Federal Rules universally recognize the following privileges:
o Attorney client privilege
o Spousal communications privilege
o Psychotherapist/social worker – client privilege
Who holds privilege?
• Privilege is personal and held by party whose interest is sought
o Either party to the action, could theoretically be a witness
o Attorney does not hold the privilege, the client does
• May be asserted by someone authorized to assert privilege
o Attorney, psychotherapist says I’m not authorized to give that information
Waiver of privilege
Can be waived by:
o Failure to claim privilege
- Question asked and no one objects “privilege”
o Voluntary disclosure
o Contractual provision allowing waiving of privilege
Attorney Client Privilege - General Purpose
To promote professional services and trust between attorney and client
Attorney Client Privilege - Types of Communication Covered
Only applies to communications, and documents prepared in the course of the attorney/client relationship
- Cannot hide documents that already existed by just giving them to your attorney. Cannot give it to the attorney to hide them.
- Cannot conceal physical evidence
- Can hand the gun to the attorney that was the weapon. Attorney under obligation to hand over to police b/c otherwise hinder/tamper with evidence. But do not need to tell the police where the gun came from unless police can link gun to client some other way.
- Privilege does not exist to commit a future crime or fraud
- Just because boilerplate language attorney might initially
tell client, does not mean committing a future crime. - General warnings are part of attorney-client privilege
- Retain attorney to commit a fraud – not covered by
privilege
Required confidentiality for privilege to apply
o Only protects statements one intended to be confidential – has to be info relayed to attorney intended to be confidential (what attorney does)
o Must be careful who is in the room:
- Third party? Waives privilege
- Other clients? Waives privilege
- Eavesdroppers?
• If anticipated eavesdropper (door not shut, etc.) – not confidential
• If shut door, different story
o Sometimes attorney must hire 3rd party to be part of situation, and communications to those people fall under the privilege
- Ex. doctor, accountant, investigator, legal secretary
- If attorney sends client to a doctor for consultant within the case, any statements during the client-patient/doctor visit are covered by attorney/client privilege
- If mere suggestion from attorney, not set up through attorney, then attorney client privilege does not cover that relationship, though another type of privilege may.
Who is a necessary third party?
Accountant hired by lawyer – covered by atty client privilege. Hired by client, not atty client privilege.
• Sometimes attorney has multiple clients for the same case. All communications still confidential as long as same case.
o Exception: if those clients end up suing one another, privilege is gone.
• Sometimes other people can hear the conversation.
o Scavengers and eavesdroppers
o Issue becomes were these people anticipated?
- If anticipated, no confidentiality, which means no privilege - If not anticipated, no loss of privilege
o People listen to you on your cell phones – go somewhere private
Duration of privilege
Indefinitely
- Termination of attorney client privilege relationship does not matter, does not terminate privilege
- Death of client does not terminate privilege
- Putting stuff in trash on public street, could argue that privilege does not cover that
Waiver
Only client can waive privilege
Loss of privilege
• Failure to preserve confidentiality after communication is made
- Ex. document in public trash, not shredded.
• If client intends future disclosure at time of the communication, then there is no confidentiality and no privilege is created
- Never intended for it to be confidential
Ways to lose confidentiality
- Failure to preserve confidentiality after communication is made
- If client intends future disclosure at time of communication
Exceptions to privilege
- Retained in anticipation to commit a crime or fraud
- Lawsuit between attorney and client
- Contest in will suit
- Name, relationship, legal fees paid type of information – detailed oriented – not privileged (not intended to be confidential)
Joint clients and attorney
If 2 clients both consult with attorney, all communications are privileged as well except:
• When one client is suing the other client due to no expectation of confidentiality during a joint consultation
People v. Meredith
On trial for murder. Defendant tells his attorney where the victim’s wallet is. Initially confidential. Attorney has investigator go to get the wallet. Evidence tampering. Gave it to the police. But did not tell the police where got it from. Attorney screwed up and waived the client’s privilege – weird. If client had said “go get the wallet” – makes more sense.
Future reference: If your client gives you the evidence, as an attorney you are obligated to give to the police. If client tells you where evidence is - don’t say anything. Cannot go and tamper with it.
If a privileged communication leads defense counsel to evidence – attorney can go/look and see it and that is still privileged, as long as leaves the evidence where it is. If remove the evidence to examine it, original location loses protection of the privilege. Disturbing because attorney’s mistake. Tell client don’t want to know where evidence is.
